R v McGuinness - [2022] SASC 84

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v McGUINNESS
[2022] SASC 84
Judgment of the Honourable Justice Stein
16 August 2022
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
This is an application to fix a non-parole period pursuant to s 47(3) of the Sentencing Act 2017 (SA).
On 24 July 2003, the applicant was sentenced for murder to life imprisonment with a non-parole period of 18 years. The non-parole period expired on 20 November 2019. On 13 January 2021, the applicant was released on parole. On 22 March 2022, following breaches of parole conditions, the applicant’s parole was cancelled.
The applicant seeks a new non-parole period be fixed.
Held: Non-parole period of 12 months to be fixed, backdated to 24 October 2021.
Sentencing Act 2017 (SA) ss 47(3), 47(5)(b), referred to.
R v Bakewell [2022] SASC 39; R v Roberts (2016) 125 SASR 40, applied.

R v McGUINNESS
[2022] SASC 84
Criminal: Application to fix a non-parole period

STEIN J: Nicole Therese McGuinness has applied to the Court to fix a non‑parole period pursuant to s 47(3) of the Sentencing Act 2017 (SA) (“Sentencing Act”).
Background
Ms McGuinness pleaded guilty to the charge of murder. On 24 July 2003, Perry J sentenced Ms McGuinness and her co-accused. The sentencing remarks of Perry J summarised the offending 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. He was a 53 year old male transexual who lived as a woman. You 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, [the co-accused], 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 he had placed the money, in order to withdraw, he refused.
…
Against that background, you both resolved to drug the victim in te [sic] expectation that this might enable you to elicit from him the PIN number. To this end, you laced a meal, which you prepared for him, with Rivotril.
After the drug took effect, the victim still refused to give the PIN number. A struggle ensued.
You, [the co-accused], punched the victim and broke his nose. You, Ms McGuinness, took a knife from the kitchen and threatened the victim with it. After these assaults, he gave the PIN number.
You, [the co-accused], went to the bank, but the PIN number proved incorrect. You were unable to access the account.
When you returned to the house you found Ms McGuinness sitting on top of the victim, holding the knife, with a pillow over his face. It appeared that the victim had…

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 [2022] SASC 84
Case: [2022] SASC 84
Decision Date: 16 August 2022

CaseChat Overview and Summary

In the matter of R v McGuinness, the applicant, Ms McGuinness, who had been serving a life sentence for murder, applied for the fixing of a new non-parole period after her parole was cancelled for breaching parole conditions. The application was heard by the Supreme Court of South Australia, which had to determine the appropriate length of the non-parole period considering various factors such as the nature of the original offence, the likelihood of rehabilitation, and the need for deterrence.

The court needed to decide on the appropriate length of a new non-parole period for Ms McGuinness, who had previously been released on parole but later had her parole revoked due to breaches of parole conditions. The key legal issues included the gravity of the original offence, Ms McGuinness' prospects for rehabilitation, and the necessity for deterrence both for Ms McGuinness and for the broader public. The court also had to consider Ms McGuinness' age, her prior incarceration, and her engagement with rehabilitation programs.

The court reasoned that while Ms McGuinness had not reoffended while on parole, her breach of the condition requiring abstinence from drugs was significant, particularly as drugs had played a role in her original offence. The court noted the need for Ms McGuinness to reflect on the seriousness of her breaches and their adverse impact, and to commit to rehabilitation. Considering Ms McGuinness' age, her lengthy incarceration, and the support systems in place to assist her rehabilitation, the court decided that a non-parole period of 12 months, backdated to 24 October 2021, was appropriate. This period was intended to encourage Ms McGuinness to engage meaningfully with rehabilitation efforts and to deter her and others from breaching parole conditions.

The court ordered that a non-parole period of 12 months be fixed for Ms McGuinness, backdated to 24 October 2021. This decision acknowledged the need for Ms McGuinness to reflect on her actions and to engage with rehabilitation programs while also serving as a deterrent against further breaches of parole conditions.

Orders

Orders of the court

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

On 24 July 2003, the applicant was sentenced for murder to life imprisonment with a non-parole period of 18 years. The non-parole period expired on 20 November 2019. On 13 January 2021, the applicant was released on parole. On 22 March 2022, following breaches of parole conditions, the applicant’s parole was cancelled.

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

Held: Non-parole period of 12 months to be fixed, backdated to 24 October 2021.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I note it remains for the Parole Board to assess Ms McGuinness’ suitability for release into the community once she is eligible to apply for parole.Conclusion I fix a non-parole period of 12 months backdated to 24 October 2021.

Ratio Decidendi

Legal Principle Established

Chief Justice Kourakis continued to say:[3]The relevant considerations are:·The prospects of rehabilitation on parole.·The gravity of the offences on which the offender was imprisoned and then paroled.·The gravity of the breaching offences on which the offender was imprisoned or the breach of the designated condition.·The need to deter the offender and others from commission of offences of the type with respect to which he was on parole and offences of the type that breached that parole, or the need to deter the offender and others from breaching a designated condition.·The need to deter the offender and others from breaching parole.[3] [2022] SASC 39 at [48].Consideration Ms McGuinness is now 54 years of age and has spent approximately the last 20 years incarcerated. In determining this application, I take into account the gravity of the offending underlying Ms McGuinness’ life sentence, the conduct which has resulted in the breach of Ms McGuinness’ parole conditions, the likelihood of her response to parole and her prospects of rehabilitation on the information before me. The circumstance said to trigger Ms McGuinness’ drug relapse was becoming aware of the significant media coverage in relation to her offending and experiencing nightmares as a result. The decision to use drugs to self-medicate was made by Ms McGuinness with knowledge that doing so breached her conditions of parole. Ms McGuinness must take responsibility and accept accountability for such decisions. Ms McGuinness has not reoffended whilst on parole, however, her failure to comply with the condition of parole requiring abstinence from drugs is significant and of concern, particularly given drugs played a part in the original offending. I therefore take into account the need to deter Ms McGuinness from further breaches of her parole conditions, and to deter others from similar breaches. I am mindful of the Parole Board’s comments as to the need for meaningful engagement and commitment to address Ms McGuinness’ underlying issues. Ultimately, whether this is achievable depends on Ms McGuinness. I note the Flinders Wellbeing Centre and Seeds of Affinity have indicated their willingness to continue working with Ms McGuinness and the availability of counselling through Mosaic Services. Ms McGuinness has the support of a social worker and Aboriginal Liaison Officer. I take into consideration the supports Ms McGuinness has in place to assist her and Ms Bertossa’s statement in relation to Ms McGuinness’ commitment to the program. Having considered the matters to which I have referred, I have determined to fix a non-parole period of 12 months. That length of time should encourage Ms McGuinness to reflect further on the seriousness of her breaches and their adverse impact and deter Ms McGuinness from further breaches. That timeframe should also encourage and facilitate Ms McGuinness’ continued involvement in, and commitment to, rehabilitation noting the importance of genuine and meaningful engagement with rehabilitation and support mechanisms to address substance abuse and other relevant issues.