R v Inge

[2022] SASC 122

Supreme Court of South Australia

(Criminal: Application)

R v INGE

[2022] SASC 122

Judgment of the Honourable Justice Stanley  

28 October 2022

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - LIFE SENTENCE - REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD

This is an application to fix a non-parole period pursuant to s 47(3) of the Sentencing Act 2017 (SA).

The applicant was sentenced to life imprisonment for murder and is currently not subject to an existing non-parole period. The applicant’s parole was cancelled on 22 June 2021 following several breaches of the ‘no drug’ parole condition and one breach of the ‘no alcohol’ parole condition.

The applicant seeks a new non-parole period be fixed.

Held:

1.      Non-parole period of 2 years be fixed, backdated to commence from 1 March 2021.

Foley v Police [2008] SASC 338; Inge v The Queen (1999) 199 CLR 295; R v Bakewell [2022] SASC 39; R v Earley [2014] SASC 202; R v Inge (2000) 76 SASR 118; R v Schultz (1997) 68 SASR 377; R v Roberts (2016) 125 SASR 40, considered.

R v INGE
[2022] SASC 122

Criminal

STANLEY J:

Introduction

1. This is an application to fix a non-parole period pursuant to s 47(3) of the Sentencing Act 2017 (SA) (the Act). Christopher Alexander Inge (the applicant) is serving a sentence of life imprisonment for murder but is not subject to an existing non-parole period. His parole was cancelled on 22 June 2021 following several breaches of the ‘no drug’ parole condition and one breach of the ‘no alcohol’ parole condition. For the reasons that follow, I fix a non-parole period of 2 years backdated to commence from 1 March 2021.

   Background

2. The applicant entered a plea of guilty to murder and was sentenced to life imprisonment with a non-parole period of 18 years.  The sentence was backdated to commence on 12 December 1995 when the applicant was taken into custody. The facts upon which the applicant was sentenced are summarised in the sentencing remarks of Millhouse J on 23 December 1996 and the subsequent judgments of the Court of Criminal Appeal and the High Court.[1]

   [1]    R v Schultz (1997) 68 SASR 377; Inge v The Queen (1999) 199 CLR 295; R v Inge (2000) 76 SASR 118.

3. The applicant, the applicant’s sister, and her boyfriend had been drinking together on the evening of 4 December 1995.  During the evening, the applicant’s sister became upset and disclosed to her boyfriend that she and the applicant, as well as the applicant’s other sister, had been sexually abused by the victim.  This had occurred when the applicant’s family and the victim were neighbours. Following the disclosure made by the applicant’s sister, the applicant and her boyfriend drove to the victim’s house.

4. The applicant and the other man forcibly broke into the victim’s house in the early hours of 5 December 1995.  The victim was a 68-year-old man who was living alone.  The applicant was able to take hold of a piece of wood which the victim was attempting to use to defend himself.  He then proceeded to batter the victim using the piece of wood and then a hammer.  The pathology report showed that the victim was struck with a blunt instrument at least 12 times and his death was attributed to traumatic brain damage. Before the applicant and the other man left the house, the body of the victim was doused in petrol, ignited and extensively burnt.  The applicant was sentenced on the basis that he formed an intention to inflict grievous bodily harm.  The other man entered pleas of guilty to burglary and assisting the applicant to escape apprehension and prosecution.

5. The sentencing judge accepted that the applicant and his sisters had been sexually abused by the victim.  It was accepted that the sexual abuse against the applicant had been a continuous course of conduct over some years and had ended about 10 years before the offending.  The sentencing judge commented that the victim’s conduct did not justify or excuse the applicant’s offending but it did go some way to explaining his motives.

6. The applicant was born on 26 November 1972 and was 23 years of age at the time he committed the offence.  The material available to the sentencing judge indicated that the applicant was of borderline intelligence and had a history of head injury and probable seizures.  It was accepted that he had been extensively abused by the victim when he was a child which led to post-traumatic stress disorder.  In addition, the applicant had a deprived and socially disadvantaged background including his parents’ abuse of alcohol.  He is dependent on alcohol, cannabis and other substances.  It was accepted that he was remorseful for his offending.

7. During the course of his incarceration, the applicant was sentenced to imprisonment for one month for the offence of aiding and abetting the delivery of a prohibited item to a prisoner.  The sentence commenced on 19 January 2009 and was to be served concurrently with the sentence of life imprisonment.  The applicant states that he was caught attempting to bring cannabis into prison.

8. The applicant was 45 years of age and had spent almost 23 years in custody when he was released on parole on 15 October 2018.  The Parole Board considered two psychological reports which indicated that the applicant suffered from post-traumatic stress disorder with associated anxiety and occasional panic attacks.  In releasing the applicant, the Parole Board was aware that illegal drug use was a significant risk factor.

9. After multiple positive tests for cannabis in October and November 2018, the Parole Board issued a warrant, and the applicant was returned to custody.  When the applicant was released for a second time in late 2019, he returned several positive tests for cannabis and buprenorphine between December 2019 and February 2020.  The Parole Board issued a warrant on 25 February 2020 and the applicant again returned to custody.  The applicant was released for a third time on 9 December 2020 but returned numerous positive tests for cannabis in January and February 2021 and a positive test for alcohol on 26 February 2021.  The Parole Board issued a warrant on 27 February 2021 which was executed on 1 March 2021.

10. Following an interview with the applicant on 22 June 2021, the Parole Board resolved to cancel his parole and directed that he serve the balance of the sentence of life imprisonment.  The Parole Board found the applicant “lacks motivation to deal with his drug habit and, until he is genuinely committed to change, no amount of counselling or intervention will assist him”.[2]

    [2]    Parole Board Report pursuant to s 47(11) of the Act dated 2 September 2022.

11. The applicant participated in eight one to one counselling sessions in early 2022 as part of the OARS Community Transitions Pre-Release Program in Mobilong Prison.  His individual report states that he showed a good understanding of the factors which influence his negative decision making and has made considerable progress in relation to abstinence and future relapse prevention.

12. Counsel for the applicant submits that the applicant found his time on parole to be very difficult as a result of the extended period of time that he spent in custody.  He is now 49 years of age, his elderly parents suffer from physical health problems, and his sister is disabled.  The applicant has been diagnosed with post-traumatic stress disorder, depression, anxiety and borderline personality disorder. He is participating in ongoing treatment for borderline personality disorder. 

    Legal Principles

13. Section 47(3) of the Act provides that in circumstances where an offender is serving a sentence of imprisonment but is not subject to an existing non-parole period, the sentencing court may, subject to s 47(5) of the Act, fix a non-parole period. In the circumstances of this application, the discretion to fix a non-parole period pursuant to s 47(3) of the Act is to be exercised judicially but free of the dictate in s 47(5)(b) of the Act.[3]

    [3]    R v Bakewell [2022] SASC 39 at [47].

14. The Court of Criminal Appeal considered the authorities relevant to fixing a new non-parole period in R v Roberts.[4]  The authorities establish that, subject to one additional factor, the principles applicable to fixing a non-parole period as part of the exercise of the sentencing discretion in imposing an original sentence also apply to the exercise of the sentencing discretion in fixing a new non-parole period after the cancellation of parole.  The additional factor is that it is necessary that the Court have regard to the breaching offence or the breach of the designated condition which resulted in the cancellation of parole.

    [4] (2016) 125 SASR 40 at [15]-[27].

15. The relevant considerations in fixing a new non-parole period are:[5]

    ·The prospects of rehabilitation on parole.

    ·The circumstances and gravity of the offence or offences for which the offender was imprisoned and granted parole.

    ·The circumstances and gravity of the breach or breaches of parole.

    ·The need to deter the offender and others from committing the type of offence or offences for which the offender was imprisoned and granted parole.

    ·The need to deter the offender and others from breaching parole.

    [5]    Foley v Police [2008] SASC 338 at [25]; R v Earley [2014] SASC 202 at [23].

    Consideration

16. Section 47(3) of the Act imposes a discretion upon the judge to decline to fix a non-parole period. The Director of Public Prosecutions and the Parole Board are not opposed to the setting of a non-parole period, and in the circumstances of this case I consider that it would be inappropriate to decline to do so. I note that it remains for the Parole Board to assess the applicant’s suitability for release into the community once he is eligible to apply for parole.

17. In determining this application, I have taken into account each of the relevant considerations listed above.  However, the most important considerations in the circumstances of the case are the applicant’s prospects of rehabilitation on parole and the need to deter the applicant and others from breaching parole by turning to drugs and alcohol.

18. While it can be accepted that a person in the applicant’s position would find it very difficult to reintegrate into society, his parole was cancelled because he repeatedly demonstrated a lack of motivation to deal with his drug habit.  On each of the three short periods that he spent in the community between 15 October 2018 and 1 March 2021, he returned multiple positive tests for cannabis.

19. Although it is significant that the breaches of parole were not violent and did not amount to incursions into criminal conduct, the applicant continually failed to comply with the conditions requiring abstinence from drugs and alcohol.  The applicant’s inability to abstain from drugs and alcohol is concerning in the context of rehabilitation because he was sentenced on the basis that he had a dependency on alcohol, cannabis and other substances before his offending, and because it was known that illegal drug use was a significant risk factor before he was released on parole.

20. Notwithstanding the applicant’s use of drugs and alcohol, most relevantly cannabis, his risk of reoffending is not of particular concern in the context of this application.  The offence committed by the applicant was the most serious offence known to the criminal law, but he was a young man, entered a plea of guilty, expressed remorse, and was sentenced on the basis that his victim had repeatedly abused him and his sisters over a lengthy period.  He is now 49 years of age and has spent almost the entirety of the last 27 years in custody. Obviously, that is more than half his life.

21. It is necessary to fix a non-parole period that promotes the applicant’s continued rehabilitation and provides a sufficient reminder to him and others of the importance of complying with parole conditions.  The length of the non-parole period to be fixed should reflect the time necessary to motivate the applicant to genuinely commit to dealing with his drug habit.  It should also serve to deter him and others from breaching the conditions of their parole.  The applicant has spent almost 18 months in custody since 1 March 2022.  During that period, he has made progress in relation to his substance abuse problem and other relevant issues.  Taking into account the materials before me and submissions made by counsel, I consider that it is appropriate to fix a non-parole period of 2 years before he is again eligible to apply to the Parole Board for release on parole.

22. I would backdate the commencement of this non-parole period to 1 March 2021 when he last was returned to custody.

    Conclusion

23. I fix a non-parole period of 2 years backdated to commence from 1 March 2021.