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 been stabbed in the temple a number of times and was bleeding from the resulting wounds and from the nose.
You, Ms McGuinness, then stabbed the victim once through the heart and four times through the stomach, killing him. You accept that you intended to kill, although you say that you now have no memory of the stabbing.
Justice Perry addressed the manner in which Ms McGuinness and the co‑accused attempted to dispose of the body. When it was too heavy to put into the boot of the vehicle, the body was dismembered using a hacksaw, a knife and an axe. Different parts of the body were disposed of in different locations and part burned in an incinerator.
Justice Perry sentenced Ms McGuinness to life imprisonment with a non‑parole period of 18 years.
Release on parole and subsequent cancellation
Ms McGuinness’ non-parole period expired on 20 November 2019. Ms McGuinness spent time in the Adelaide Pre-Release Centre in about 2017‑2018. In February 2018 she was returned to the prison due to behavioural issues. She was then transferred back to the Adelaide Pre-Release Centre in August 2018.
The Parole Board released Ms McGuinness on 13 January 2021 on conditions including to abstain from illegal drugs. While living at the Adelaide Pre-Release Centre as a parolee, she was summonsed to interview for breaching the Adelaide Pre-Release Centre’s rules and regulations on 8 April 2021.
On 5 May 2021, Ms McGuinness returned a positive test to amphetamine and methamphetamine. She returned a further positive test on 12 May 2021. On 24 October 2021, a search of her accommodation disclosed five capped syringes, a urine sample, prescription medications and other items of contraband. Ms McGuinness was subject to a test which returned positive results to opioids, benzodiazepine, amphetamines and methamphetamines. It was also noted that Ms McGuinness had used heroin. She had also taken approximately 30 milligrams of Serepax tablets. She had to be transferred by ambulance to hospital due to difficulties with her breathing and altered levels of consciousness. At that time, she had only been released from a Parole Board warrant to return to the Adelaide Pre‑Release Centre on 30 September 2021. This relapse was so serious Ms McGuinness was at risk of dying.
On 22 March 2022, the Parole Board cancelled Ms McGuinness’ parole given the breach of parole and her ongoing substance abuse.
Parole Board letter
A letter from the Presiding Member of the Parole Board, Ms Nelson QC, reported that, while incarcerated, Ms McGuinness undertook the Domestic Violence Brief Intervention Program, Alcohol and Other Drug Brief Intervention Program and the Anger Management Brief Program. Ms McGuinness was said to have been positive in her engagement in those programs. While at the Adelaide Women’s Prison, she was employed in the garden and as a cleaner. When she was moved to the Adelaide Pre-Release Centre, Ms McGuinness was employed at the Northfield Distribution Centre. The case notes indicate an extremely high work ethic and commitment.
The letter from the Parole Board states that during Ms McGuinness’ first four years of incarceration, she struggled with illegal drug use. When she was approved for parole, she had returned 19 negative results since May 2012.
The letter from the Parole Board notes Ms McGuinness has been diagnosed as suffering from borderline personality disorder and polysubstance use disorder. The letter refers to Ms McGuinness’ exposure to domestic violence and alcoholism as a child, her homelessness during her teens and her previous dishonesty and drug‑related offending.
After the transfer to the Pre-Release Centre in August 2018, Ms McGuinness was provided with various therapeutic programs dealing with addiction and mental health wellbeing and, in October 2019, was referred to a program dealing with managing interpersonal challenges in shared accommodation.
The letter from the Parole Board refers to Ms McGuinness’ apparent inability to remain abstinent from illegal drugs.
The letter states that Ms McGuinness’ Community Corrections Officer reports she engaged superficially within supervision and was selective in the information she volunteered. Ms McGuinness was directed to engage with an addiction medicine specialist upon release and he returned to prescribing her methadone. Ms McGuinness was directed to complete a mental health care plan but she had not done so at the time of her return to custody. Ms McGuinness was referred to Flinders Wellbeing Centre for counselling, the Work Ready Release Ready Program and drug counselling with OARS.
The letter from the Parole Board refers to Ms McGuinness’ longstanding history of substance abuse being one of the significant factors in her criminogenic behaviour. It states relapse into use of illegal drugs is a significant factor for reoffending. The Parole Board letter states that while Ms McGuinness acknowledges her drug use is a major problem, Ms McGuinness is yet to make a genuine commitment to change and, until she does so, no amount of counselling or intervention would assist her.
The Parole Board does not object to a further non‑parole period being set. The Parole Board recommends that Ms McGuinness should be encouraged to undertake further intervention to deal with her substance abuse issue and some cognitive behavioural therapy to assist her borderline personality disorder.
Ms McGuinness’ application
Since Ms McGuinness’ return to custody, at the date of the hearing before me, she has served 7 months and 27 days of a non-parole period. Ms McGuinness’ counsel submitted I can backdate any non‑parole period I fix to commence from 24 October 2021, being the date Ms McGuinness was returned to custody.
It is accepted the gravity of the offence committed by Ms McGuinness is most serious and that the offence for which she was in custody was caused in part by drug use. It is accepted the breach of parole alleged was use of drugs. When interviewed, Ms McGuinness admitted taking some pills and admitted the use of heroin.
Ms McGuinness’ counsel submits that she was drug free for approximately 12 years before her release. Her relapse in May 2021 was said to be a consequence of conducting Google searches of her name and seeing the nature of the reports about her offending which triggered her relapse. She submits she struggled with repeated nightmares and used drugs to self-medicate to address those struggles.
As a result of COVID-19 related issues, prior to Ms McGuinness’ release from custody in January 2021, she had only been in the community once.
Ms McGuinness’ counsel submits she is now engaging with supports. Her general practitioner has prescribed anti-depressants. A letter from the Flinders Wellbeing Centre refers to Ms McGuinness’ participation in cognitive behavioural therapy to address mental health issues. Ms McGuinness has attended 14 sessions, focusing on improving emotional regulation and trauma response. Her treatment has included relapse prevention. Ms Sue Bertossa, director of Flinders Wellbeing Centre, confirms therapy can be provided to Ms McGuinness in custody and in the community, if granted parole. Ms Bertossa’s letter refers to Ms McGuinness’ commitment to the program demonstrating Ms McGuinness’ determination to find more adaptive ways of coping to ready herself to live in and contribute to the community.
Seeds of Affinity, a support service, has provided a letter in support of Ms McGuinness’ application to fix a non-parole period. The organisation offers outreach support, provides an advocacy service and works with women to assist them to make positive change. The letter from Seeds of Affinity states that Ms McGuinness has been very enthusiastic about her involvement and they are willing to offer her ongoing support.
A letter from a counsellor at Relationships Australia, South Australia, confirms Ms McGuinness has been engaging with Mosaic Services (a specialised program) in a specialised counselling capacity on a fortnightly basis since July 2021. The letter states Ms McGuinness has identified the need for clinical trauma psychology intervention on release from incarceration in working through complex trauma, grief and loss issues. Relationships Australia indicates the Mosaic Services counsellors can provide flexible options upon release enabling continuity of ongoing psychosocial support on a needs basis.
Ms McGuinness’ counsel states she will seek a mental health care plan upon her release. Ms McGuinness’ general practitioner has taken her off the methadone program and prescribed to her buprenorphine injection as a preferable way to manage opioid addiction.
Ms McGuinness has the support of a social worker, Ms Chelsea Dunn, who is committed to continuing to engage with Ms McGuinness and also an Aboriginal Liaison Officer, Ms Debbie Dunn, who has also offered support. Aunty Pat Waria‑Read is providing to Ms McGuinness culturally sensitive support.
Ms McGuinness submits she has significant supports in place. Although she has breached her parole by the drug offending, she submits she has not reoffended. Ms McGuinness submits that the time served since her return to custody of in excess of seven months is an appropriate length of non-parole period for the purposes of general deterrence and is consistent with authorities in the context of similar factual scenarios.
Ms McGuinness submits she is committed to change and does not wish to reoffend. She is motivated to work and to volunteer. She submits she had a significant false start but she wishes to change and now has meaningful support structures in place to assist her to achieve her goals.
The Director’s submissions
The Director agrees that Ms McGuinness should have a non-parole period fixed and that any non-parole period can be backdated to 24 October 2021. The Director submits the relevant considerations are the prospect of rehabilitation so as to deter any further breaches, the gravity of the original offending, the breach conduct and the risk of reoffending.
The Director submits that the letter from the Parole Board expresses a concern that Ms McGuinness does not yet have a genuine commitment to change. The Director refers to the longstanding issue Ms McGuinness has with drug abuse and that her relapse is a significant issue of concern. The Director points out that drugs played a material part in the offending and Ms McGuinness has had positive drug tests on a number of occasions, with relapses within four months of her first release and within one month of her later release from the Parole Board warrant to the Adelaide Pre‑Release Centre. The Director points out that further intervention is required to ensure Ms McGuinness deals with her substance abuse and her borderline personality disorder.
The Director submits the non-parole period should reflect that Ms McGuinness has not meaningfully addressed her substance abuse issues and must deter further breach.
Victim impact statement
Mr Lilliecrapp, the brother of the victim, provided a victim impact statement.
The death of the victim, the manner in which the victim was killed, dismembered and disbursed around Adelaide has had significant impact upon Mr Lilliecrapp. Mr Lilliecrapp expressed significant concern that if Ms McGuinness is released, she is likely to reoffend due to her past and present history of drugs and he considers Ms McGuinness remains a danger to the community. He remains deeply affected by the acts committed by Ms McGuinness and believes the offending caused his mother’s premature death. Ms McGuinness’ offending has caused Mr Lilliecrapp daily suffering with which he lives every day. Mr Lilliecrapp spoke of giving a victim impact statement at the time of Ms McGuinness’ sentencing and that now he experiences even more grief and trauma. Mr Lilliecrapp said it is difficult for others to understand his true feelings including his disgust and disbelief that Ms McGuinness would be released into the community.
I accept Mr Lilliecrapp considers others cannot understand his true feelings. I have heard and acknowledge Mr Lilliecrapp’s grief.
My role in addressing this application is not to sentence Ms McGuinness for her original offending. I turn now to address the relevant factors for consideration, one of which is the gravity of Ms McGuinness’ offending.
Fixing a non-parole period
Fixing a non-parole period serves a different purpose as against setting a head sentence. In R v Roberts, Kourakis CJ, Blue and Stanley JJ stated: [1]
In R v Miller, Doyle CJ observed that, in accordance with what was said by the High Court in R v Shrestha, in fixing a non-parole period it is appropriate to give greater weight to rehabilitation than would be the case in fixing the head sentence. This recognises the different purpose to be served by the fixing of a non-parole period as against a head sentence and the ability of the Parole Board to assess the prisoner’s suitability for parole when the time comes.
(citations omitted)
[1] R v Roberts (2016) 125 SASR 40 at [20].
In R v Bakewell,[2] Kourakis CJ said the discretion to fix a non-parole period pursuant to s 47(3) of the Sentencing Act is to be exercised judicially but free of the requirement in s 47(5)(b) of the Sentencing Act to fix a non-parole period of 20 years.
[2] R v Bakewell [2022] SASC 39.
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.
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.