R v O'Neill No. Sccrm-99-218 Judgment No. S469

[1999] SASC 469

R  v  O’NEILL
[1999] SASC 469

Criminal

1. MULLIGHAN J This is an application to fix a non-parole period pursuant to s 32(3) of the Criminal Law Sentencing Act 1988. There is now no non-parole period.

2. The applicant committed serious offences in late 1991 when he was aged 20 years which were two offences of armed robbery and one of breaking, entering and larceny.  For present purposes, it is unnecessary to mention the circumstances of the offences.  It is sufficient to say that they were very serious offences of their type.  He was sentenced to imprisonment for a total period of 11 years and 6 months, with a non-parole period of 7 years, to commence on 31st December 1991.  On 19th December 1994, he was sentenced to a further 18 months’ imprisonment for escaping from custody and the non-parole period was extended by 12 months. 

3. He was released on parole on 30th March 1997 and went to live in New South Wales to reside with his brother.  In 1998 he was in breach of his conditions of parole, in that he did not report to his parole officer on an occasion and committed minor criminal offences.  In respect of one of those offences, he was sentenced to imprisonment for one month.  He had been held in custody for more than a month prior to the time of that sentence and the sentence was backdated appropriately.

4. He has been in custody otherwise than with respect to those matters since February this year.  He was brought to South Australia on 31st May 1999 and has remained in custody serving the balance of his sentences of imprisonment imposed in this State, which at the present time is 4 years, 5 months and 19 days, or that was the case on 25th October this year.  It is in these circumstances that there is no current non-parole period.

5. The applicant is now aged 28 years.  He has experienced a sad, tragic and abused life, particularly in his formative years.  The details of his background need not now be repeated.  They are set out in the remarks of the sentencing Judge in 1991, but they do include sexual and physical abuse, a dysfunctional life at all times, and the denial of the care, support and protection of a family.  He has spent a good deal of his life in institutions and for a time, as a young lad at the age of 13 years, he lived on the streets.  He showed some resourcefulness through his life in not being entirely emotionally crippled by this background.  He has a background of criminal offending and substance abuse but, because of his imprisonment and his resolve when on parole, he has been largely free of offending and substance abuse since he was aged 20 years.

6. Whilst in prison he undertook appropriate developmental courses which have been described as anger management, communication skills, ending offending and a listener's programme, all designed to improve his life and social skills.  Much further work is required to enable him to live in a law-abiding manner in the community, but his undertaking of these courses and what he achieved whilst at liberty and on parole gives cause for optimism about his future.  Nonetheless, he requires substantial supervision.

7. There is a suggestion that he should be released almost immediately on parole because the time that he has spent serving his sentence is more than adequate punishment for the offending which led to his parole being terminated.   The real question, of course, is whether, in the interests of justice, he should be allowed to serve a substantial part of the balance of his sentence at liberty under the strict conditions of parole.  I am sure that the applicant realises that any breach of conditions of parole will very likely lead to termination of parole and return to prison.

8. I have read with care the letter which he wrote to the Parole Board recently and the letter which he has written to me, and I wish to make it clear that I regard the writing of those letters as a very positive step in rehabilitation.  The fact that somebody in the position of the applicant is able to commit his thoughts to paper, and to express himself in the way in which this applicant has expressed himself is very encouraging indeed.

9. I think it is significant that when released on parole the applicant did not offend for about 19 months.  During that time he lived in New South Wales and experienced considerable difficulties, not only in adjusting to life outside prison but in basic things like obtaining suitable accommodation.  Nonetheless, he managed his life in the community with a measure of success.  He did so despite the fact that in February 1998 he was assaulted and suffered a severe head injury.  So these matters, in my view, show positive features about the applicant and encourage a decision to grant a short non-parole period.

10. I have had regard to the report of the chairman of the Parole Board and the stated need for the applicant to undertake future courses to assist him in the development of the necessary skills to live a law-abiding life in the community.

11. I am influenced by the age of the applicant when he was sentenced to such a long term of imprisonment, by his deprived background and the large measure of success that he had in the community whilst on parole until he committed these minor offences.  I am prepared to give him another chance to make good on parole and to serve the balance of his sentence at liberty in the community under appropriate but, no doubt, strict conditions which will be imposed by the Parole Board.

12. I fix a non-parole period of six months and I backdate that period to 31st May this year, having accepted that it may not be backdated earlier than that date.  The result is that the applicant may be released on parole after the end of next month depending, of course, upon the decisions of the Parole Board.