R v O'NEILL - [2022] SASC 148

Supreme Court of South Australia
(Criminal: Application)

R v O'NEILL
[2022] SASC 148
Reasons for Decision of the Honourable Justice Nicholson
9 December 2022
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - BREACH AND REVOCATION
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - OTHER FACTORS - OFFENCE COMMITTED WHILE ON BAIL, PROBATION OR PAROLE
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 - GENERALLY
On 8 February 1988, the applicant, Warren O’Neill, was sentenced to imprisonment for life for murder with a non-parole period of 20 years. Since then, the applicant’s parole has been cancelled as a result of breaches of his conditions and the applicant has applied to this Court to fix a non-parole period.
Held:
1. Application to fix a new non-parole period allowed.
2. A new non-parole period of 12 months, backdated to commence on 16 March 2022, is fixed.
Sentencing Act 2017 (SA) ss 47(3), 47(5); Correctional Services Act 1982 (SA) s 75, referred to.
Williams v The Queen [2021] SASC 70; R v Roberts (2016) 125 SASR 40; R v Earley [2014] SASC 202; Foley v Police [2008] SASC 338; R v Inge [2022] SASC 122, considered.

R v O'NEILL
[2022] SASC 148
Criminal: Application to fix a non-parole period
NICHOLSON J.
Introduction and background

Warren Rodney O’Neill has applied to this Court to fix a non-parole period pursuant to subsection 47(3) of the Sentencing Act 2017 (SA) (the Act).
On 8 February 1988, the applicant was sentenced to imprisonment for life for the murder of an elderly woman in 1986. A non-parole period of 20 years, commencing 24 July 1986, was fixed. On 5 June 2001, he was released on 10 years conditional parole. This was cancelled on 16 May 2006 upon his being sentenced (on 15 November 2005) to imprisonment for nine weeks for five counts of breach of bail. The life sentence was reinstated in accordance with the requirements of section 75 of the Correctional Services Act 1982 (SA). However, in due course, Duggan J fixed a further non-parole period of 11 months and the applicant became eligible to re-apply for parole on 13 August 2008.
The applicant applied for release on parole on 9 September 2009 but was unsuccessful. He completed the Violence Prevention Program in 2011 and Phase 2 of the Making Changes Program in 2012. Nevertheless, Corrections had concerns about the applicant’s institutional behaviour and the Parole Board continued to monitor his behaviour in custody. On 16 May 2016, he was transferred to the Pre-Release Centre and took part in a number of pro-social and work preparation activities. The applicant’s last positive test for amphetamine and methamphetamine in prison was on 28 October 2014. During these years, the applicant took steps to reconnect with his culture. According to Aboriginal Liaison Officers,…

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 O'NEILL

Details

AGLC: R v O'NEILL [2022] SASC 148
Case: [2022] SASC 148
Decision Date: 9 December 2022

CaseChat Overview and Summary

The case of R v O'NEILL involves a legal challenge regarding the redetermination of the applicant's non-parole period following his breaches of parole. The applicant, currently in custody, has been there since 16 March 2022 due to parole breaches, approximately nine months. The primary focus of the case is the management and assistance required for the applicant if he were to be released on parole again. The Parole Board has indicated that the applicant would need ongoing, intensive supervision and assistance in the community. The applicant's counsel highlighted his willingness to accept and engage with the offered assistance, including with Nunkuwarrin Yunti and Dr Pisaniello, with whom he has had a prior relationship. The applicant expressed concerns about reintegrating with his family, as he has not spent a single day or night at home with them since 2006. The court considered these factors in determining a new non-parole period.

The legal issues before the court involved the principles relevant to setting a new non-parole period following the cancellation of parole. The court relied on the principles summarised by Stanley J in R v Inge, which include the prospects of rehabilitation on parole, the circumstances and gravity of the original offence and the breach of parole, and the need to deter the offender and others from committing similar offences or breaching parole. The court also considered the additional factor of the breaching offence or the breach of the designated condition which resulted in the cancellation of parole. The applicant's difficulties in reintegrating into society, leading to stress and anxiety, and his difficulty in maintaining pro-social peer influences and avoiding anti-social peer influences were also considered. The court concluded that it was appropriate to fix a new non-parole period, with the prosecution not opposing this decision.

The court fixed a new non-parole period of 12 months for the applicant, backdated to commence on 16 March 2022. The court found that the applicant's primary difficulties when in the community were difficulty in reintegrating into society, leading to stress and anxiety, and difficulty in maintaining pro-social peer influences and avoiding anti-social peer influences. As a consequence, the applicant remained at risk of gravitating to the use of illegal drugs as had happened in the past. The taking of illegal drugs and their effect on the applicant remained a serious criminogenic risk factor. The court determined that it was appropriate to fix a new non-parole period, with the prosecution not opposing this decision. The applicant's willingness to accept and engage with the offered assistance was noted, and the court considered his expressed concerns about reintegrating with his family. The Parole Board would still need to decide whether to approve the release of the applicant once the new non-parole period were to expire.

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 applicant has been in custody as a result of his most recent breaches of parole since 16 March 2022, approximately nine 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 has said, he will require ongoing, intensive supervision and assistance when in the community. It will be up to the applicant to respond. According to his counsel, the applicant is now keen to accept and involve himself with any and all assistance that will be offered, including with Nunkuwarrin Yunti and a Dr Pisaniello with whom he has had a prior relationship and the Prisoner Care Program. The applicant directly raised with me during the hearing his fear and anxiety about reintegrating with family. He worries that since 2006 he has not spent a single day or night at home with family. He will need assistance in this area as well.Conclusion Having weighed and assessed the factual matters referred to in the context of the relevant considerations summarised by Stanley J in Inge, I allow the application to fix a new non-parole period and fix a new non-parole period of 12 months, backdated to commence on 16 March 2022.

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.[1] The very recent and helpful distillation of the principles by Stanley J in R v Inge[2] will suffice for present purposes.[1] For example, Williams v The Queen [2021] SASC 70 (Blue J), R v Roberts [2016] SASC 41; (2016) 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).[2] [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.[3] 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. [3] (2016) 125 SASR 40 at [15]-[27]. [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 when in the community and away from the structure and discipline imposed by the custodial environment appear to be difficulty in reintegrating into society, leading to stress and anxiety, and difficulty in maintaining pro-social peer influences and avoiding anti-social peer influences. As a consequence, the applicant remains at risk of gravitating to the use of illegal drugs as has happened in the past. He was under the influence of drugs at the time of his original offending. The taking of illegal drugs and their effect on the applicant remains a serious criminogenic risk factor.