R v Partridge

[2016] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v PARTRIDGE

[2016] SASC 138

Judgment of The Honourable Justice Bampton

24 August 2016

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - PARTICULAR CASES

Application to fix a non-parole period – the applicant was sentenced in 2008 to 11 years and three months’ imprisonment and a non-parole period was set – applicant released on parole on 26 March 2015 – applicant breached the conditions of parole – release on parole was cancelled on 19 May 2016 effective 19 January 2016 and sentence reinstated – sentence due to expire 22 June 2017.

Non-parole period of nine months fixed backdated to 19 January 2016.

Criminal Law (Sentencing) Act 1988 (SA) s 32; Criminal Law Consolidation Act 1935 (SA) s 14, referred to.
R v Shrestha (1991) 173 CLR 48; R v Miller (2000) 76 SASR 151, applied.

R v PARTRIDGE
[2016] SASC 138

Criminal:  Application to fix a non-parole period

1. BAMPTON J:      David John Partridge applies for a non-parole period pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 (SA) (the Act).

   Background

2. Mr Partridge pleaded guilty to criminal neglect of a child contrary to s 14 of the Criminal Law Consolidation Act 1935 (SA). The particulars of the offence were that on 15 February 2006 Mr Partridge, having a duty of care to a three‑year-old child, failed to take steps that could have been reasonably expected in the circumstances to protect the child from harm. The commission of this offence breached a two-year suspended sentence bond Mr Partridge had entered into on 24 June 2005. The offending underlying the bond comprised trespass, common assault, traffic offences and breaches of a bail agreement.

3. On 10 July 2008, Mr Partridge was sentenced to 10 years’ imprisonment for the criminal neglect of the child.  The suspended sentence of 15 months’ imprisonment was revoked, the sentence carried into effect and ordered to be served cumulatively upon the 10 year sentence of imprisonment.

4. Mr Partridge was sentenced to a total period of imprisonment of 11 years and three months.  A non-parole period of seven years and three months was fixed.  The sentence was backdated to 17 March 2006 (the 2008 sentence).

5. Mr Partridge was released on parole on 26 March 2015.

6. On 19 May 2016, the Parole Board (the Board) found Mr Partridge had breached his parole conditions by using illicit drugs and by not engaging in psychological treatment.  The Board cancelled his parole effective from 19 January 2016.

   Response to earlier periods of parole

7. The history of Mr Partridge’s response to parole is detailed in a report the Court has received from Mr Bourne, the Deputy Presiding Member of the Board, pursuant to s 32(9) of the Act.

8. In addition to providing details of Mr Partridge’s compliance with parole conditions following release on 26 March 2015, Mr Bourne comments on three earlier periods on parole as follows.

   Release 21 August 1999

9. On 15 April 1999, Mr Partridge was sentenced to two years’ imprisonment with a non-parole period of six months for traffic offences and larceny.  He was released on 21 August 1999.  By reference to Mr Partridge’s offender history his parole was cancelled on 6 January 2000 for breach of parole.

10. On 26 April 2000, Mr Partridge was sentenced for larceny and unlawful possession to three months’ imprisonment cumulative on an unexpired balance of parole of one year, two months and 22 days.  A non-parole period of four months was fixed.

    Release 16 June 2000

11. Mr Partridge was released on parole on 16 June 2000.  On 10 July 2001, he was sentenced to six months’ imprisonment for traffic offences and possessing cannabis committed whilst on parole.  As a consequence his parole was cancelled.  The six month sentence was ordered to be cumulative upon an unexpired balance of nine months and 10 days and a non-parole period of 20 days was fixed.

    Release 7 August 2001

12. Mr Bourne reports that Mr Partridge’s compliance with parole was much better following his release on 7 August 2001.  He did, however, breach a parole condition by driving unlicensed on two occasions.  On the first occasion he drove as a result of a medical emergency and he was convicted but discharged without penalty.  With respect to the second occasion, he was convicted and a good behaviour bond with supervision was imposed.  The Board took a pragmatic approach, finding the breaches proved and resolved that no further action would be taken unless further driving offences were proved pending the expiration of his sentence on 19 October 2002.

    The 2008 sentence – release on parole

13. Mr Partridge became eligible for early release on parole in respect of the 2008 sentence at the direction of the Board on 16 June 2013.  The Board refused his initial application for reasons which included Mr Partridge minimising, “if not denying”, his offending and having no insight into his criminogenic factors.  The Board was also not satisfied that he had dealt with his substance abuse problems.

14. The Board determined that until such time as Mr Partridge addressed his criminogenic factors and engaged in an intervention program he would not be suitable for early release.

15. Mr Partridge completed the Making Changes program in August 2013.  A Post-Treatment Summary records that he maintained a good attitude while in the program.  The Summary also records that he would benefit from further drug abuse support and psychological treatment for depression and post-traumatic stress disorder when released into the community.

16. Mr Partridge became eligible to reapply for parole after 3 February 2015.  The Board approved his parole and he was released on 26 March 2015.  He was to reside with his mother and was placed on the methadone programme to assist him in abstaining from drug taking.

17. On 21 May 2015, urinalysis was positive to methamphetamine as well as methadone.  Mr Partridge claimed that his drink must have been spiked when visiting a friend he had met in prison.  His Community Corrections Officer (CCO) reported that his compliance with his parole conditions was otherwise satisfactory.  The Board found the breach proved and took no action other than adding a condition that he have no contact with the friend who had allegedly spiked his drink.

18. Urinalyses on 9 and 11 June 2015 were positive to Oxazepam, consistent with the use of Valium.  Mr Partridge denied having used Valium.

19. Mr Partridge’s psychologist reported on 24 June 2015 that Mr Partridge was well engaged, but denied any wrongdoing in relation to the initial offence and his positive urinalysis.  His psychologist was of the view that his engagement was superficial.

20. The Board interviewed Mr Partridge on 23 July 2015 regarding his apparent breaches of parole conditions.  Mr Partridge maintained his denials at interview with respect to illicit drug use and prescription drugs without prescription.

21. Urinalysis on 27 July 2015 was positive to cannabis.  Mr Partridge admitted having smoked a cone in the company of an old friend.  His CCO noted that, since his release on parole on 26 March 2015, Mr Partridge had returned four positive urine tests to three different drugs.  Further, the CCO reported that two days after receiving a warning he had again used drugs on parole.

22. Subsequent urinalysis tests were positive to cannabis but reducing levels of THC were consistent with abstinence from cannabis.  However, urinalysis on 13 August 2015 was positive to methamphetamine and amphetamines.  The Board issued a warrant which was executed on 19 August 2015.

23. Mr Partridge remained in custody until released from the warrant on 18 November 2015.

24. On 30 December 2015, Mr Partridge was reluctant to provide a urine sample for analysis.  The sample he eventually did give returned a positive result to amphetamine.

25. When challenged by his CCO on 5 January 2016, he admitted he had used drugs on Christmas Eve but that he thought he would have flushed it out by the time of urinalysis.  Repeat urinalysis on 12 January 2016 was positive to amphetamine and methamphetamine.  When Mr Partridge was questioned he denied using any illicit substance since Christmas Eve.  The Board rejected that assertion and again issued a warrant which was executed on 19 January 2016.

26. At an interview on 19 May 2016, the Board noted a letter Mr Partridge’s psychologist had sent to his general practitioner in December 2015 referring to Mr Partridge’s superficial engagement with counselling, his attempts to justify his drug use and his minimisation of responsibility and demonstrated lack of insight.

27. During the interview Mr Partridge said that his relapse into illicit drugs was as a result of receiving threats.  He also maintained that he was in a new relationship which was supportive and prosocial.  The Board found the no drugs breaches proved and that his failure to engage with the psychologist breached the condition requiring him to cooperate with psychological treatment.

28. The Board cancelled his parole making him liable to serve one year, five months and four days from 19 January 2016.  Unless a non-parole period is fixed, Mr Partridge will remain in custody until the expiry of his sentence on 22 June 2017.

29. Mr Bourne states that that as Mr Partridge has completed the Making Changes program previously he will not receive any further intervention to address his use of illicit drugs or other criminogenic needs whilst in custody.

30. The Board supports the fixing of a new non-parole period in order that Mr Partridge will have a reasonable period under supervision in the community where he can undertake further substance abuse counselling.  Mr Bourne concludes his report saying that if released Mr Partridge will be encouraged to undergo assessment for a mental health care plan in order to access psychological intervention.

    Submissions

31. Mr Partridge is now 38 years old.  I was told that, whilst it has taken time, he is beginning to mature and he does not want to grow old in custody.  He acknowledges that he has an entrenched drug addiction.  It was submitted that he acknowledges that he must seek assistance from drug and alcohol services and continue to engage with psychological counselling to help him rehabilitate.

32. I was provided with a copy of a report prepared by the psychologist Mr Balfour dated 7 May 2008.  Mr Balfour reported in 2008 that Mr Partridge’s primary criminogenic risk factor was his drug addiction.  Mr Balfour referred to Mr Partridge developing post-traumatic stress disorder following the slashing of his face in custody in 2008.  He also noted Mr Partridge was fortunate to have the support of his mother and positive role model in an older brother.  Mr Balfour expressed the view that Mr Partridge was remorseful and had exhibited victim empathy.

33. Mr Partridge’s counsel argued that if released on parole he will have better prospects of complying with parole because he now has a supportive partner.  He and his partner have known each other for 18 years and reconnected on Facebook in January this year.  Counsel is instructed that the partner has a strong employment history and is not involved with drugs.  Further, Mr Partridge instructs that his partner is a positive influence and the force behind him wanting to remain drug‑free and to become a productive community member.

34. Counsel for the Director submitted that it was open to me to decline to fix a non-parole period in light of the entrenched difficulty Mr Partridge has had in rehabilitating and reintegrating into the community.

35. As pointed out, Mr Partridge has repeatedly breached parole by using drugs.  He has continued to do so despite warnings from the Board and being taken into custody.  It was submitted that I should be slow to accept the submission regarding his prospects of complying with parole conditions in the context of having a new partner.

36. It was contended that whilst there are no further programs available to Mr Partridge in custody, he has had counselling programs both in custody and whilst on parole none of which, it was submitted, have borne fruit.

    Conclusion

37. Given Mr Partridge’s history of breaching his conditions of parole by using illicit drugs and failing to engage productively in psychological counselling, the Court must be guarded about the prospects of him responding positively to and complying with conditions of parole.

38. Apart from breaching conditions whilst on parole for the 2008 sentence Mr Partridge has not committed an offence.  However, it must be borne in mind that Mr Partridge maintained he was ‘stoned’ at the time he committed criminal neglect of a child and he was at that time a user of illicit drugs.

39. If I decline to fix a non-parole period Mr Partridge will be released into the community upon the expiry of the 2008 sentence in June next year without conditions and without the Board’s supervision.  The Board has informed the Court there are no further rehabilitation programs available to Mr Partridge in custody. As the Board supports the fixing of a non-parole period, it is prudent that a non-parole period be fixed so that the Board can assess Mr Partridge’s suitability for parole before the 2008 sentence expires.

40. Having regard to all that has been submitted, it is clearly in Mr Partridge’s interests and that of the community that he spend some time of what is left of the 2008 sentence on parole attempting to reintegrate into the community under the close supervision of the Board.  

41. In determining this application I have considered the gravity of the offending underlying the 2008 sentence, the conduct that has breached the conditions of parole, Mr Partridge’s offender history, the likelihood of his response to and compliance with parole and his prospects for rehabilitation. 

42. In arriving at a non-parole period I have given greater weight to rehabilitation bearing in mind it is for the Board to assess Mr Partridge’s suitability for release into the community once he is eligible to apply for parole.[1]

    [1]    R v Shrestha (1991) 173 CLR 48; R v Miller (2000) 76 SASR 151 at [42].

43. The minimum term of imprisonment required to meet the punitive and protective and rehabilitative purposes of punishment is a period of nine months.

44. I fix a non-parole period of nine months backdated to 19 January 2016.