R v Knibbs - [2017] SADC 115

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 115
R 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…

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 Knibbs

Details

AGLC: R v Knibbs [2017] SADC 115
Case: [2017] SADC 115
Decision Date: 20 October 2017

CaseChat Overview and Summary

The applicant, Adam Paul Knibbs, is serving a sentence of imprisonment without a non-parole period and has applied for one to be set. The case was heard in the District Court of South Australia, with Ms Gristwood representing the applicant and Ms Chang representing the Crown. The applicant has a lengthy history of drug use and offending, resulting in numerous sentences of imprisonment and parole breaches. The applicant has remained drug-free since November 2016, and he has a son who was born in September 2017. The Crown does not oppose the setting of a non-parole period, but highlights the applicant's poor record of compliance with parole conditions. The primary legal issue for the court was to determine the appropriate non-parole period to set for the applicant.

The court considered the factors set out in R v Roberts, including the applicant's antecedents, history, degree of contrition, and stated intention to remain drug-free and be a good father. The court also considered the nature and gravity of the breaching offences and the need for personal and general deterrence of breaching behaviour. The court noted that the applicant has served 9 months and 20 days of the remaining 1 year, 9 months and 1 day of his sentence as at 29 December 2016. The court decided that a non-parole period of 11 months was appropriate, so a non-parole period of 11 months was set, commencing on 29 December 2016. The applicant will be eligible for parole on 30 November 2017.

Orders