R v McGuinness - [2025] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v McGUINNESS
[2025] SASC 18
Judgment of the Honourable Justice Bampton
25 February 2025
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
Application to fix a non-parole period pursuant to s 47(3) of the Sentencing Act 2017 (SA) – where applicant was convicted of murder, sentenced to life imprisonment, and a non-parole period of 18 years was fixed – where the applicant has been previously released on parole and had parole cancelled – where a new non-parole period was fixed and the applicant was again released on parole – where the applicant breached parole conditions and parole was cancelled.
Held (granting the application): Non-parole period of 18 months fixed, backdated to 11 August 2024.
Sentencing Act 2017 (SA) ss 47(3), 47(5)(b), referred to.
R v McGuinness [2022] SASC 84, considered.

R v MCGUINNESS
[2025] SASC 18
Criminal: Application to fix a non-parole period

BAMPTON J: On 24 July 2003, Nicole McGuinness was sentenced by Perry J to life imprisonment, with a non-parole period of 18 years backdated to 20 November 2001, following her plea of guilty to the murder of Joanne Lillecrapp (formerly known as John Lillecrapp).
Ms McGuinness was paroled on 13 January 2021. Her parole was cancelled on 22 March 2022 and her life sentence reinstated due to a proven breach of the “no drugs” parole condition.
On 16 August 2022, upon Ms McGuinness’ application to fix a new non‑parole period pursuant to s 47(3) of the Sentencing Act 2017 (SA) (“the Act”), the Court fixed a new non-parole of 12 months backdated to 24 October 2021. Ms McGuinness was again granted parole on 26 June 2024. Due to breaches of parole conditions, a Parole Board warrant was executed on 11 August 2024, and Ms McGuinness was returned to prison. Following an interview by the Parole Board, Ms McGuinness’ parole was cancelled and her life sentenced reinstated on 2 October 2024.
Ms McGuinness now makes application for the fixing of a new non-parole period. The application was heard on 20 January 2025.
The sentence of life imprisonment
Justice Perry summarised Ms McGuinness’ offending and that of her co‑accused in his sentencing remarks as follows:
At the time of the killing you had both been residing at the victim’s house at Angle Park for about four weeks. [The victim was 53 years old]. You [Ms McGuinness and Ms Casagrande] had been in a relationship with each other for about three years.
The victim had befriended you and offered you accommodation when you visited from interstate. You, Ms Casagrande, gave to the victim some money to be banked on your behalf. When you asked the victim for the PIN number of the bank account into which [the victim] had placed the money, in order to withdraw it, [the victim] refused.

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 McGuinness

Details

AGLC: R v McGuinness [2025] SASC 18
Case: [2025] SASC 18
Decision Date: 25 February 2025

CaseChat Overview and Summary

The case of R v McGuinness involved the defendant, Ms McGuinness, who had been convicted of murder and was currently serving a life sentence. The matter before the court was the redetermination of her non-parole period. The appeal was heard in the South Australian Supreme Court. The primary legal issue was whether the non-parole period should be set at a specific term, considering Ms McGuinness's rehabilitation efforts and her history of substance abuse.

In addressing this issue, the court took into account several factors. Ms McGuinness had achieved several vocational qualifications while in custody, including a Certificate I in kitchen operations, a forklift licence, and various construction tickets. However, the court noted that she had relapsed into substance abuse upon her two releases on parole. The court also considered the Parole Board's report, which indicated Ms McGuinness's need for time to reflect on her lack of commitment and undertake interventions to address her criminogenic factors. Despite her professional achievements, the court remained guarded about her prospects for rehabilitation due to her history of substance abuse and the nature of the offence committed while under the influence of drugs.

The court concluded that a non-parole period of 18 months was appropriate. This period was backdated to 11 August 2024, the date the Parole Board warrant was executed. The court aimed to provide Ms McGuinness with an opportunity to address her lack of commitment, undertake necessary interventions, and implement measures to support her upon her next release on parole. The decision reflected the need to balance Ms McGuinness's rehabilitation efforts with the imperative to deter her and others from reoffending and breaching parole.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Whilst in custody, Ms McGuinness has obtained a Certificate I in kitchen operations, a forklift licence, a working at heights clearance, an excavator ticket, and a civil construction ticket. It was submitted that, whilst she does not have many personal supports, she has enjoyed several professional supports which she is now meaningfully engaging with. Consideration As submitted by counsel for the Director, it appears that Ms McGuinness relapsed into substance abuse upon her two releases on parole. She has had opportunities granted to her by the Parole Board when it was determined not to immediately cancel parole after initial breaches. As submitted, Ms McGuinness has supports and programs available to her and it is up to her to make a genuine commitment to rehabilitation. Ms McGuinness is now 57 years of age. In determining the application, I bear in mind the matters detailed in the Parole Board’s report and the presiding member’s comment regarding Ms McGuinness’ need for time to reflect on her lack of commitment and to undertake intervention as may be available to her to address her criminogenic factors. I must be guarded with respect to Ms McGuinness’ prospects of rehabilitation. She has difficulty abstaining from illicit drug use and it must be borne in mind that the offence of murder was committed whilst she was using illicit drugs. The need to deter Ms McGuinness and others from offending and breaching parole is a significant factor in fixing a non-parole period. In the circumstances, I fix a non-parole of 18 months, backdated to 11 August 2024, the date the Parole Board warrant was executed, allowing time for Ms McGuinness to address her lack of commitment, undertake any necessary interventions and put in place measures to support her upon her next release on parole.