R v Knibbs
[2017] SADC 115
•20 October 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KNIBBS
[2017] SADC 115
Reasons for Decision of Her Honour Judge Cole
20 October 2017
CRIMINAL LAW
APPLICATION TO FIX A NON-PAROLE PERIOD
Applicant serving a term of imprisonment without a non-parole period - application to fix a non-parole period - principles to apply - non-parole period fixed.
Criminal Law (Sentencing) Act 1988 (SA) s 32(3), referred to.
R v Roberts (2016) 125 SASR 40, considered.
R v KNIBBS
[2017] SADC 115R v Adam Paul Knibbs
Adam Paul Knibbs (“the applicant”), is serving a sentence of imprisonment which is not subject to an existing non-parole period. He has applied, pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988, for the fixing of a non-parole period.
I have been provided with a brief, undated letter from Mr Tony Henderson, who conducts Narcotic Anonymous and Alcoholics Anonymous programs at Mount Gambier prison, a letter dated 27 September 2017 from Mr Geoff Glanville of Second Chances SA, and an email dated 28 September 2017 from Ms Gabrielle Owens, the applicant’s partner. I have been provided with a detailed report from the Parole Board of SA dated 25 August 2017, from which much of the information set out below has been taken. I have also been provided with the applicant’s antecedent report.
Ms Gristwood made submissions on behalf of the applicant and Ms Chang made submissions on behalf of the Crown.
Background
The applicant is 36 years old. He began using hard drugs in his early teens. He served a brief sentence of imprisonment in the year 2000 at the age of 18 years old. Subsequently, he continued to commit offences, including several counts of aggravated and non-aggravated serious criminal trespass, larceny, robbery in company, various driving offences and breaches of bonds. This conduct resulted in numerous sentences of imprisonment being imposed upon the applicant between March 2003 and January 2009. The cumulative head sentence was 13 years, 11 months and 21 days, with a non-parole period of 6 years and 10 months.
The applicant was in prison from 5 February 2003 until 6 September 2010, when he was released with a parole period which was not due to expire until 4 March 2017.
The applicant breached his parole conditions on numerous occasions from December 2010 to November 2012, resulting in his return to prison on seven occasions in that period of time. Most of the breaches related to the unlawful use of drugs, failure to report for supervision and issues concerning changes of address.
In 2013, the applicant was accepted into the Drug Court program. He was released from custody to avail himself of that opportunity. However, he failed to attend for supervision and also failed to attend the Drug Court program. He then resumed the Drug Court program, however, shortly thereafter, he breached his home detention by leaving his house without permission. He was terminated from the Drug Court program in August of 2013.
On 13 November 2013, the applicant was sentenced in the Magistrates Court to imprisonment for 7 months and 6 days in addition to the unexpired balance of parole of 4 years and 18 days, resulting in a new head sentence of 4 years, 7 months and 24 days. A non-parole period of 18 months was set, so that he was eligible for parole from 27 April 2015.
The applicant completed the program “Making Changes” during his incarceration on this occasion. He applied for parole. He was released on parole on 12 June 2015 subject to electronic monitoring and intensive supervision. He was on the Suboxone program which required him to go to Norwood daily. The applicant failed to comply with his home detention conditions four times in late July and early August 2015. On 6 August 2015 the applicant removed his home detention bracelet whilst at the Woodville train station so that his whereabouts were unknown to his supervisor. A urine sample taken from the applicant on 4 August 2015 tested positive to amphetamine, methamphetamine and prescribed buprenorphine. The applicant was again taken into custody on 25 August 2015.
The applicant was released again on 29 September 2015. However, he was again non-compliant with his home detention conditions. Urinalysis on 19 October 2015 was again positive for amphetamine and methamphetamine. Between 25 August 2015 and 29 December 2016, the applicant was taken into custody on six occasions. In June 2016, an additional condition of release was imposed upon the applicant, requiring him to do 200 hours of community service within four months. He failed to undertake that community service. He tested positive for methamphetamine on 19 September 2016. He was found in possession of an ice pipe on 28 September 2016. However, a test on 6 October 2016 was negative for illicit drugs. He removed his electronic monitoring bracelet on 21 October 2016. He was arrested on 29 December 2016 for riding a bicycle without a helmet, hinder police and resist police. He was convicted of those charges, and of possession of an ice pipe. He has remained in custody since 29 December 2016.
The Parole Board cancelled the applicant’s parole on 18 April 2017.
The Submissions
It was agreed between the parties that the balance of the applicant’s sentence is 1 year, 9 months and 1 day from 29 December 2016. His release date has therefore been extended to 29 September 2018.
Ms Gristwood submitted that the applicant’s sentence was imposed 14 and a half years ago for offences committed when the applicant was about 21 years old. He is now 36 years old. The applicant has spent the majority of his adult life in custody.
The applicant was brought up by his mother, his father having left the family when the applicant was 5 years old. The applicant’s older brother died very suddenly at the age of 14, when the applicant was 11 years old. This dramatically changed the applicant’s circumstances at home, and he eventually ran away and fell into the company of older boys who introduced him to drugs. He was addicted to amphetamines and heroin by the age of 14.
Ms Gristwood submitted that the offences which led to the original sentence under consideration arose from the applicant’s drug use and efforts to fund that drug use.
Ms Gristwood acknowledged that it was evident from the Parole Board’s report that the applicant has, on numerous occasions, in different ways, professed to have developed insight into his behaviour and to have genuinely resolved to be compliant with parole conditions and to lead a productive life, only to offend again. However, Ms Gristwood submitted, the applicant was told by his partner in November 2016 that they were expecting a baby, and he immediately stopped using drugs. He has attended Narcotics Anonymous in prison. The applicant now has a son who is about three months old.
Mr Glanville, of Second Chances, has undertaken to provide some support to the applicant and his partner in the event that the applicant is released on parole.
Ms Owens, the applicant’s partner, has strongly expressed her support for him, and I take into account everything she says. She wishes to live with the applicant and their baby. However, at the time that she provided the email of 28 September 2017, she was “between houses” and looking for stable accommodation.
The applicant seeks to be released on parole forthwith.
The Crown does not oppose the setting of a non-parole period. However, the Crown placed some emphasis on the applicant’s extremely poor record of compliance with conditions of parole. The Crown acknowledged that it would be preferable for the applicant to spend some time on parole to integrate into the community with supervision.
The Law
The factors to be considered in an application pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 are set out in R v Roberts[1].
[1] (2016) 125 SASR 40
The applicant’s compliance with parole conditions has been appalling in the past. He has a pattern of acknowledging past behaviour, explaining it, often by attributing blame to another person, and earnestly vowing that the future will be different, only to lapse into drug use and non-compliance with his conditions again. Were it not for the birth of his child and his drug free status from November 2016, there would have been a strong case for declining to set a non‑parole period. However, given that the applicant is now the father of a child and has, he says, remained drug free for 10 months, I consider that there is now a fresh prospect that he may, finally, respond to parole and avail himself of the opportunity to rehabilitate and become a productive member of the community. I will, therefore, set a non-parole period.
In considering how long the non-parole period should be, I bear in mind that, like a sentence, it should fit the offences and the offender and reflect the community’s sense of justice. I bear in mind that it should be proportional to the offences involved, and reflect the need for individual and general deterrence. I bear in mind that it is the purpose of a non-parole period:
… to determine the optimum time when the prisoner will respond to parole and make the most of the opportunity it allows for rehabilitation after serving the minimum period necessary to meet the punitive and protective purposes of punishment.[2]
[2] R v Roberts para 21.
I take into account the applicant’s antecedents, his history, his degree of contrition, in so far as it can be ascertained, and his stated intention to remain drug free and to be a good father to his son. I take into account the nature and gravity of the breaching offences and the need for the personal and general deterrence of breaching behaviour.
As at 29 December 2016, the applicant had 1 year, 9 months and 1 day of his sentence to serve. He has served 9 months and 20 days of that period. In all of the circumstances, I consider that a non-parole period of 11 months is appropriate, so I fix a non-parole period of 11 months, commencing on 29 December 2016.