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

1. 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).

2. 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.

3. 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, he had provided good support to other Aboriginal prisoners.

4. On 9 June 2021, the applicant was released on parole a second time.  He was to remain on parole for life and subject to an extensive list of conditions, as typically set for such a parolee.  However, on 25 October 2021, the applicant tested positive for methamphetamine use.  After first denying, he then admitted knowingly consuming the drug.  The applicant again tested positive on 16 March 2022.  He admitted that he had relapsed into drug use because of worry and stress. 

5. The applicant was taken back into custody on 16 March 2022.  It transpired that he had failed to attend a number of work shifts and was associating with another parolee who was also using drugs.  When interviewed, the applicant gave a number of explanations for his conduct related to emotional and coping concerns.

6. The author of the Parole Board report dated 11 October 2022, from which the above summary has been derived, concluded as follows.

   [The applicant] has had a lot of intervention and assistance, and it is disappointing that he remains susceptible to substance abuse which is a significant criminogenic factor for him.  It is concerning that he was dishonest about his drug use, and not open and truthful with his Community Corrections Officer.  He has been positive on testing on two occasions but that is not the likely limit of his illegal drug use.  [The applicant] regrettably has not developed appropriate coping mechanisms to enable him to function appropriately in the community.  His offending occurred when he was under the influence of illegal drugs, so a relapse presents a very significant risk factor for him.  He needs further intervention to assist him with his substance abuse, and given that he will not engage with Nunkuwarrin Yunti, nor with the Aboriginal Sobriety Group, it is difficult to know what culturally appropriate program would be suitable for him.  We would encourage him to accept what intervention is available and offered to him.

7. The applicant has a significant prior criminal record in addition to his conviction for murder committed in 1986.  His other offending includes: common assaults (1990), assault occasioning actual bodily harm (1995), dishonestly take property without consent (2005), a number of driving offences, failures to comply with bail and firearm offences.  The applicant was born in Mildura in 1968 and is now 54 years old.  He was 18 years of age in 1986 when he committed the murder offence.  He was adopted by a non-Indigenous family at an early age.  The family was good to him and supported his Aboriginal identity.  Nevertheless, he lost connection with his own people, the Barkindji.  The applicant was sexually assaulted when he was 10 years old and started to drink alcohol and abuse drugs in his teenage years.  Methamphetamine was an issue for him at the time of the murder.  In 1985, the applicant and a young woman with whom he was in a relationship had a daughter who is now 38.  The applicant had little contact with her until she turned 18.  Since then, they have maintained regular contact by phone.  Apart from his daughter and a sister, the applicant has little by way of family support.  It would appear that the applicant has spent the best part of 30 or more years in custody since 1986. 

   Relevant legal principles

8. 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

9. 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.

10. 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. 

11. The applicant has spent some 30 years or so, being most of his adult years, in custody.  He has undertaken programs aimed at rehabilitation.  He has received substantial punishment for his original offending and for his breaches of parole.  In my view, the manner in which his breaches of parole have been dealt with to date have properly taken into consideration the need to deter the applicant and others from breaching parole in the ways the applicant has.  The breaches, in themselves, are not of a high order but they cannot be tolerated because of the criminogenic risks to which they gave rise. 

12. 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

13. 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.