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.…

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 McKenzie

Details

AGLC: R v McKenzie [2023] SASC 27
Case: [2023] SASC 27
Decision Date

CaseChat Overview and Summary

The case of R v McKenzie was heard by the Supreme Court of South Australia, where the defendant, McKenzie, faced charges related to parole breaches. The dispute centred around the sentencing implications of McKenzie's parole breaches and the appropriate method for setting a new non-parole period after such breaches. The court was tasked with deciding whether to impose a new non-parole period, considering the factors that typically influence such a decision and how they apply post-parole cancellation. The legal issues involved interpreting the relevant statutory provisions, specifically Section 47(3) of the Sentencing Act 2017, and determining the appropriate considerations when fixing a new non-parole period.

The court examined the principles established in previous cases, such as Williams v The Queen and R v Roberts, which outlined the factors to be considered when setting a non-parole period, including the prospects of rehabilitation, the gravity of the original and breaching offences, and the need for deterrence. The court also noted that Section 47(5) of the Act allowed for the discretion not to fix a new non-parole period under certain circumstances. However, in McKenzie's case, the court found it appropriate to set a new non-parole period, considering the potential for rehabilitation and the benefits of relocating McKenzie to Victoria to be closer to his support network. The court concluded that McKenzie's primary difficulties in reintegrating into society could be mitigated by such a relocation, which would ultimately benefit both the applicant and the community.

Following its analysis, the court sentenced McKenzie to a single term of imprisonment of five months, backdated to his return to custody, and set a new non-parole period of eight months, also backdated. This decision acknowledged the time McKenzie had already spent in custody and aimed to balance the need for personal and general deterrence with the prospects of his rehabilitation. The final order ensured that McKenzie would have to serve a little under two months more before being eligible to apply for parole. The court's ruling emphasised the importance of considering both the legal framework and the individual circumstances of the offender when determining an appropriate sentence and non-parole period.

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

NICHOLSON J

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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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.