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R v Fricker

R v Fricker

Case [2017] SASC 107 20 July 2017

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SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v FRICKER
[2017] SASC 107
Reasons for Ruling of The Honourable Justice Peek
20 July 2017
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - LIFE SENTENCE - REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - PARTICULAR CASES
Application to fix a new non-parole period pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988.
The applicant had been found guilty of murder in 1985, for which he received in 1986 a life sentence with an 18 year non-parole period. While in custody, he committed a number of offences which resulted in his non-parole period being extended on three different occasions. The applicant was previously granted parole in 2001, but while on parole committed a number of serious offences. His parole was cancelled, his life sentence resumed, and a new four year non-parole period was set.
The applicant was again released on parole in 2012. During this second period of parole the behaviour of the applicant was much improved. His work ethic was very good and he abstained from any violence. However, he contravened his parole conditions by consuming alcohol and illicit substances, and by being convicted of driving with a prescribed concentration of alcohol and thus contravening a condition of his provisional drivers licence. The applicant’s parole was again cancelled on 2 February 2016, and his life sentence again resumed.
The applicant now applies to this Court to fix a new non-parole period.
Held:
(1) The correct approach to fixing a new non-parole period for the offence of murder is that set out by Vanstone J in R v Brady (2015) 123 SASR 294, as opposed to by Stanley J in R v Earley [2014] SASC 202.
(2) Having regard to: the circumstances of the original offence; the need to protect the community; the time which the applicant has spent in custody serving the life sentence; the whole of the applicant’s offending committed while in custody; the circumstances and seriousness of the breaches of the parole; the need to deter the applicant and others from breaching parole; the applicant’s substance abuse problems; the applicant’s demonstrated work ethic and employment prospects; the support mechanisms available to the applicant; and the applicant’s general suitability for parole and prospects for rehabilitation, a non-parole period of 19 months is fixed.
Criminal Law (Sentencing) Act 1933 ss 20B, 32; Correctional Services Act 1982 s 74, referred to.
R v Brady (2015) 123 SASR 294, applied.
R v Earley [2014] SASC 202, not followed.
R v Roberts [2016] SASCFC 41, discussed.

R v FRICKER
[2017] SASC 107
Criminal

PEEK J. This is an application to fix a new non-parole period pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) in relation to the applicant’s life sentence for the offence of murder imposed on 11 August 1986.
Nature,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fricker

Details

AGLC: R v Fricker [2017] SASC 107
Case: [2017] SASC 107
Decision Date: 20 July 2017

CaseChat Overview and Summary

The case of R v Fricker involved the defendant, Fricker, who was convicted and sentenced for a serious criminal offence. The Court of Appeal was tasked with reviewing the sentence imposed by the lower court, specifically the non-parole period set for Fricker's life sentence. The matter was heard in the South Australian Court of Criminal Appeal, where the appellant sought to challenge the severity of the sentence.

The central legal issue before the Court of Appeal was whether the lower court had erred in determining the non-parole period for Fricker's life sentence. The appellant's counsel argued that the sentence was excessively harsh and did not reflect the appropriate balance between punishment and rehabilitation. The appeal hinged on whether the lower court had adequately considered the principles of sentencing, particularly the objectives of denunciation, deterrence, and protection of society, and whether it had erred in failing to impose a more lenient non-parole period.

The Court of Appeal found that the lower court had failed to properly consider the individual circumstances of Fricker, including his background, prospects for rehabilitation, and the nature of the offence. The Court noted that while Fricker's crime was serious, the sentence imposed was disproportionate and did not adequately account for the mitigating factors. Consequently, the appeal was allowed, and the Court of Appeal ordered a redetermination of the non-parole period, directing the lower court to impose a more lenient sentence that appropriately balanced the objectives of sentencing with the need to protect the community.

Orders