R v McKenzie - [2023] SASC 27

Supreme Court of South Australia
(Criminal: Application)

R v MCKENZIE
[2023] SASC 27
Reasons for Decision of the Honourable Justice Nicholson
3 March 2023
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - BREACH AND REVOCATION
On 28 May 1998, the applicant was sentenced for murder to imprisonment for life with a non-parole period of 18 years, backdated to commence on 20 December 1996. The applicant was released on parole on 22 September 2021 but this was cancelled on 24 May 2022 as a result of breaches of the parole conditions. The applicant has applied to this Court to fix a new non-parole period.
As a consequence of the parole breaches, the applicant was charged with and plead guilty to two counts of having in his possession a controlled drug and contraband items without permission, whilst being a prisoner in a correctional facility, contrary to section 49A of the Correctional Services Act 1982 (SA). The applicant also is to be sentenced for these two offences.
Held:
1.For the two counts of possession of a controlled drug and contraband items without permission, a single sentence of imprisonment for five months, backdated to commence on the date the applicant was returned to custody, 26 March 2022, is imposed.
2.With respect to the conviction for murder, a new non-parole period of eight months, backdated to commence on 26 August 2022, is fixed.

Correctional Services Act 1982 (SA) s 49A; Sentencing Act 2017 (SA) ss 26, 47(3), referred to.
Attorney-General v Tichy (1982) 30 SASR 84; Foley v Police [2008] SASC 338; R v Earley [2014] SASC 202; R v Inge [2022] SASC 122; R v Roberts (2016) 125 SASR 40; Williams v The Queen [2021] SASC 70, considered.

R v MCKENZIE
[2023] SASC 27
Criminal: Application to fix a non-parole period
NICHOLSON J.
Introduction and factual background

Ian Bruce McKenzie has applied to this Court to fix a non-parole period pursuant to subsection 47(3) of the Sentencing Act 2017 (SA) (the Act). The applicant also is to be sentenced for two counts of having in his possession a controlled drug and contraband items without permission, whilst being a prisoner in a correctional facility, contrary to section 49A of the Correctional Services Act 1982 (SA).
On 28 May 1998, the applicant was convicted of murder. He was sentenced to life imprisonment with a non-parole period of 18 years, backdated to commence 20 December 1996. A gang of young people, including the applicant had engaged in various acts of physical cruelty and torture over a period of hours before murdering TM who was only 18 years old. The many acts of torture were barbaric and inhuman.
The applicant was also only 18 years old. He had grown up within a dysfunctional family. After leaving school, he moved from one youth refuge to another. He involved himself with illegal drugs. On the day of the murder, he had taken heroin, and he described himself as being “off my face”. The applicant’s IQ was assessed at that time as being within the low-average range. Six offenders were sentenced together. The Judge’s sentencing remarks included the following, referrable to the applicant.
[Applicant], you are now 19 years of age. You were 18 at the time of the offence. I have been told that you were born in Geelong, Victoria and your parents separated when you were four years of age. I accept that you had a disruptive family life and that this continued into your schooling. You left school at the age of 15 before completing year 9. It seems that after leaving school you went from one youth refuge to another. You became involved in taking drugs and your counsel has told me that, on the day of the offence, you took heroin. You have been convicted of various offences of dishonesty. However, you have not hitherto been placed in custody. You described your condition, on the day of the offence, as being ‘off my face’. I have read the psychologist’s report and it appears that you come within the low average range, although, it is your lack of verbal skills which places you there. The extent of your involvement in this matter appears from a statement by [a youth worker], to whom you spoke. You told him that you were involved in the assault on [TM] at the house and that you continued on out into the paddock. At the paddock you tried to stab [TM] with a stardropper. You also picked up a rock which took two people to hold and dropped it on [TM’s] head. You then stabbed her to try and kill her. You told the social worker that the reason for your involvement was peer pressure because the others were egging you on. You pleaded guilty on 24 November 1997. You also indicated a preparedness to assist by giving evidence. You have been in custody since 20 December 1996. It is obvious from what you have said that you played a significant role in the girl’s death. You pleaded guilty, as I have said, on 24 November so I make an allowance of two years reduction in the non-parole period on account of that plea.
The applicant took a little time to adjust to his institutional existence. But thereafter, and for most of the time, his behaviour was generally positive and he was in full time employment. In June 2011, he was assessed as unsuitable for the Violence Prevention Program on the basis that he was considered to be at low risk of violent reoffending. However, he successfully completed the Making Changes Program. It became apparent that his offending had been linked to his drug use, and peer pressure by antisocial associates.
The applicant was released on parole on 22 September 2021 under strict conditions. Initially, he was generally compliant. However, he had no support network in South Australia and his only accommodation at the time was the Adelaide Pre-Release Centre. All of the applicant’s family, including his very supportive mother, live in Victoria which is where the applicant grew up. He wishes to return there.
It seems probable that his rehabilitation efforts and prospects would be greatly enhanced should he be able to live in Victoria with his family’s support. However, whilst the South Australian Parole Board has no objection to this, ultimately, it will be a matter for the Victorian parole authority who would have to assume lifelong supervision obligations. At present, the applicant’s application to transfer his parole to Victoria has been stalled, essentially because, on 24 May 2022 the South Australian Parole Board resolved to cancel the applicant’s parole. The following chronology once the applicant was released on parole, is pertinent to the decision to cancel parole.
(i)On 23 December 2021, the applicant tested positive for cannabis use and was issued with a warning letter.
(ii)On 25 March 2022, on his return to his accommodation at the Pre-Release Centre, the applicant was searched. Contraband, being 10 suboxone strips,[1] a white parcel described by the applicant as “smack”, a packet of tobacco and a USB memory stick, was found in his underpants.
(iii)On 26 March 2022, the Parole Board issued a warrant for the applicant’s arrest and he was transferred to the Adelaide Remand Centre.
(iv)On or about 26 March 2022, the applicant’s locker at the Pre-Release Centre was searched and further contraband items were located, namely: nine mobile phones; a Medicare card which did not belong to the applicant; a power bank phone charger; a USB pushbike light, a Leatherman multi-tool; two lighters; a smart watch; a wallet; a padlock and key; cables; paperwork and a glass case. The applicant did not have permission to possess any of these items and, as such, they were regarded as being in contravention of the Pre-Release Centre rules.
(v)On 29 April 2022, the applicant was found with cannabis in his Remand Centre cell.
[1] A prescription drug used to treat opioid dependence.
The applicant admitted resorting to smoking some cannabis because of Covid isolation and harassment by other prisoners. He said he was on the suboxone program to assist him to remain opioid abstinent. He also explained that whilst outside, following his return to the Pre-Release Centre one day, he was threatened and “stood over” by other men which caused him to agree to take contraband into the centre for the benefit of other prisoners.
The Parole Board report of 29 November 2022, provided to assist the Court, concluded in the following terms.
[The applicant] is a vulnerable young man with no family or supports in South Australia. The Parole Board would have no objection to a further non-parole period being set. It would be helpful if the Victorian Authorities would indicate one way or another, whether they would accept [the applicant’s] supervision because that would give him some level of certainty. That, however, is not a matter which we can control. [The applicant’s] vulnerability, does however, render him susceptible to involvement with other people who behave in an anti-social and criminal way. That can elevate his risk of reoffending. We would encourage him to accept any intervention if it is available to him whilst currently incarcerated, although we are aware that resources are limited, and he would not be able to avail himself of psychological intervention. Having completed the Making Changes program, he probably is not eligible for any other core program. Nevertheless, he could consult with and work with the prison Social Worker.
Relevant legal principles
The legal principles relevant to the setting of a new non-parole period following the cancellation of parole have been discussed in a number of this Court’s decisions.[2]   The very recent and helpful distillation of the principles by Stanley J in R v Inge[3] will suffice for present purposes.
[2]    For example, Williams v The Queen [2021] SASC 70 (Blue J), R v Roberts [2016] SASCFC 41; (2016) 125 SASR 40 (Kourakis CJ, Blue and Stanley JJ), R v Earley [2014] SASC 202 (Stanley J) and Foley v Police [2008] SASC 338 (Kourakis J).
[3] [2022] SASC 122 at [13]-[15].
Section 47(3) of the Act provides that in circumstances where an offender is serving a sentence of imprisonment but is not subject to an existing non-parole period, the sentencing court may, subject to s 47(5) of the Act, fix a non-parole period. …
The Court of Criminal Appeal considered the authorities relevant to fixing a new non-parole period in R v Roberts.   The authorities establish that, subject to one additional factor, the principles applicable to fixing a non-parole period as part of the exercise of the sentencing discretion in imposing an original sentence also apply to the exercise of the sentencing discretion in fixing a new non-parole period after the cancellation of parole. The additional factor is that it is necessary that the Court have regard to the breaching offence or the breach of the designated condition which resulted in the cancellation of parole.
The relevant considerations in fixing a new non-parole period are: [4]
·The prospects of rehabilitation on parole.
·The circumstances and gravity of the offence or offences for which the offender was imprisoned and granted parole.
·The circumstances and gravity of the breach or breaches of parole.
·The need to deter the offender and others from committing the type of offence or offences for which the offender was imprisoned and granted parole.
·The need to deter the offender and others from breaching parole.
[4]    Foley v Police [2008] SASC 338 at [25]; R v Earley [2014] SASC 202 at [23].
Consideration
Subsection 47(5)(e) of the Act empowers a Judge to decline to fix a new non-parole period in certain circumstances. However, I am satisfied that, in this case, it is appropriate that a new non-parole period should be fixed. Of course, it will be a matter for the Parole Board whether or not to approve the release of the applicant once the new non-parole period were to expire. The prosecution does not oppose the fixing of a new non-parole period.
The applicant’s primary difficulties which might inhibit his capacity and efforts to successfully reintegrate into society away from the discipline, controls and supervision of the custodial setting have been summarised earlier. He needs a support network that would best be provided by his mother and other family members. It is most unfortunate that they reside in Victoria.
The prospects for the further rehabilitation of the applicant within the community are very likely to be enhanced if he were to be relocated to Victoria. If so, this would be to the long term benefit of both the applicant and the community. This issue of transfer cannot be resolved, from the perspective of the Victorian authorities, until the applicant were, again, to be released on parole.
The applicant has spent nearly 25 years, effectively all of his adult life to date, in custody notwithstanding having received an original non-parole period of 18 years. In breaching his parole in the ways identified, the applicant has acted foolishly and has demonstrated that he is still a risk to the community. Whilst the breaches, standing alone, are not of a high order of seriousness, the applicant’s continued association with illegal drugs, albeit at only a modest level, is a concern. The consumption of or the continued association with people who consume drugs, gives rise to a significant criminogenic risk for this vulnerable applicant.
As a consequence of the parole breaches, the applicant was charged with and has pleaded guilty to two offences with respect to which I also must sentence him. The applicant is charged with two counts of having in his possession a controlled drug and contraband items without permission, whilst being a prisoner in a correctional facility, contrary to section 49A of the Correctional Services Act 1982. The maximum penalty prescribed for each offence is imprisonment for five years. The timing of the applicant’s plea was such that he is entitled to a discount up to a maximum of 30 per cent.
The charges relate to the same incident, that is, when the applicant was caught with items in his underpants when returning to his accommodation in the Pre-Release Centre. The applicant does not face any charges arising out of the items located in his locker. A possible explanation that was provided is that the Director may not have been satisfied that he could prove all elements of a similar charge because of the location of the locker. I have taken the locker incident into account as a breach of parole relevant to the question of fixing a new non-parole period. However, it is irrelevant to the sentencing task.
A problem with the two charges is that there appears to be an element of duplicity with respect to the particulars relied on and pleaded to. The particulars for count 1 refer to methylamphetamine as the prescribed drug and tobacco and the USB as the items of contraband. The particulars for count 2 refer to buprenorphine as the prescribed drug and the same two items, tobacco and the USB, as the contraband.
The matter was raised during submissions but not resolved either by way of amendment to one of the counts or otherwise. I will sentence on the basis of the charges as laid and pleaded to but bear in mind that any double punishment with respect to the contraband particulars must be avoided. Similarly, the extent to which the conduct, the subject of the two charges, is also relevant to and informs the length of any new non-parole period must also be allowed for when sentencing for the conduct itself.
Conclusion
After taking into account: the considerations just mentioned; the circumstances of the offending as recounted by the applicant; the seriousness of the offences; the applicant’s personal circumstances including the fact that he has already spent almost 25 years in custody; the need for both personal and general deterrence; the allowance of a 30 per cent discount with respect to each offence; and the fact that the considerations in Attorney-General v Tichy[5] indicate that a high level of concurrency would be warranted in the event two separate sentences were to be imposed, I impose, pursuant to section 26 of the Sentencing Act 2017, the one sentence for both offences of imprisonment for five months.[6] That term is backdated to commence when the applicant was returned to custody, that is, on 26 March 2022. That sentence has been completed as at 25 August 2022.
[5] (1982) 30 SASR 84 at 92-93 (Wells J).
[6] Had I sentenced separately, I would have started at six months and four months for counts 1 and 2 respectively. After allowing 30 per cent discount, the individual sentences became 4.2 years and 2.8 years respectively. I allow two years of the latter to be concurrent with the former. This results in a single period of 4.2 plus 0.8, that is, five months.
It follows that the applicant has been in custody solely referable to his most recent breaches of parole since 26 August 2022, a little more than six months. The challenge he presents is one of management and assistance once he were, again, to be released on parole. In the first instance, it will be a matter for the Parole Board as to whether and when he should be released and under what conditions. As the Parole Board recognises, he will require ongoing, intensive supervision and assistance when in the community whether here or in Victoria. It will be up to the applicant to respond.
Having weighed and assessed the factual matters referred to, in the context of the relevant considerations summarised by Stanley J in Inge, and, in particular, having regard to the fact that the applicant’s breach of parole which caused his parole to be cancelled has also resulted in him serving five months in custody, I allow the application to fix a new non-parole period and I fix a new non-parole period of eight months, backdated to commence on 26 August 2022. That means that the applicant will have a little under two months more to serve before being eligible to apply for parole.