R v Perez - [2025] SASC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v PEREZ
[2025] SASC 95
Judgment of the Honourable Justice Stein
12 June 2025
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - LIFE SENTENCE - REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD
This is an application to fix a non-parole period pursuant to s 47(3) of the Sentencing Act 2017 (SA).
On 29 June 2006, following a plea of guilty to murder, the applicant was sentenced to imprisonment for life with a non-parole period of 14 years, backdated to 3 January 2004. The applicant was released on parole on 20 February 2018. On 28 December 2023, the applicant’s parole was cancelled after returning positive results to drug screening tests.
Held:
1. The application to fix a non-parole period is granted.
2. A non-parole period of 18 months is fixed, backdated to 28 December 2023.
Sentencing Act 2017 (SA) s 47, referred to.
R v Brady (2015) 123 SASR 294; R v Roberts [2016] SASCFC 41; R v Fricker [2017] SASC 107; R v Bakewell [2022] SASC 39, considered.

R v PEREZ
[2025] SASC 95
Criminal: Application

STEIN J: Mr Perez has applied for an order that, pursuant to s 47(3) of the Sentencing Act 2017 (SA), a non-parole period be set in respect of his sentence of life imprisonment.
On 29 June 2006, after pleading guilty to murder, Mr Perez was sentenced to life imprisonment with a non-parole period of 14 years, backdated to 3 January 2004. The Parole Board resolved to release Mr Perez on parole on 20 February 2018. On 28 December 2023, the Parole Board determined to cancel Mr Perez’s parole.
For the reasons below, I have determined to fix a non-parole period of 18 months, backdated to 28 December 2023.
Background
On 1 January 2004, Mr Perez murdered Mr Kenneth Murphy. On New Year’s Eve, Mr Perez went to the Mars Bar, a popular venue for homosexual men, and later in the morning of 1 January 2004 went to the home of Mr Murphy. Mr Perez said Mr Murphy made sexual advances to him which he did not welcome but he agreed to give him a massage. When Mr Murphy was lying face down on a bed, Mr Perez attacked him with a wheel brace, then went to the kitchen, took a knife and stabbed Mr Murphy in the neck and abdomen. With the assistance of his family, he obtained legal representation and, on 3 January 2004, surrendered to police and admitted to the killing. The sentencing remarks of Bleby J indicate that at the time, Mr Perez had been a heavy intravenous user of methylamphetamine for about 10 years, overlapping with an earlier period of 10 years of substantial use of cannabis and other drugs, including LSD and cocaine. Mr Perez was significantly affected by methylamphetamine at the time of the murder. In sentencing, Bleby J found there were aggravating circumstances including that Mr Perez brought the wheel…

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 Perez

Details

AGLC: R v Perez [2025] SASC 95
Case: [2025] SASC 95
Decision Date: 12 June 2025

CaseChat Overview and Summary

In the case of R v Perez, the defendant, Mr Perez, was convicted of the murder of Mr Kenneth Murphy. The court was required to determine the appropriate non-parole period for Mr Perez's life sentence, considering his history of substance abuse and multiple breaches of parole conditions. The court's task was to balance Mr Perez's criminal history, the seriousness of the offence, and his conduct while in custody and on parole.

The legal issues centred on whether the cancellation of Mr Perez's parole, along with his subsequent engagement in rehabilitation programs, justified a redetermination of the non-parole period. The court considered the principles set out in R v Bakewell, which indicate that the non-parole period should be fixed afresh when the court is redetermining it, rather than simply adjusting the existing period. The court also examined the relevance of Mr Perez's drug use and its connection to his offending, as well as his efforts towards rehabilitation.

The court concluded that Mr Perez's breaches of parole, primarily through illicit substance abuse, were significant and demonstrated a risk of reoffending. However, the court noted that Mr Perez had taken positive steps towards rehabilitation, including participation in the SMART Recovery program and Alcoholics Anonymous. Given the impact of the parole cancellation on Mr Perez and the time he had spent in custody, the court determined that a new non-parole period was appropriate. The court fixed the non-parole period at 18 months, backdated to 28 December 2023, considering the steps Mr Perez had taken and the need for him to maintain abstinence from illicit drugs to avoid further breaches of parole.

The final orders of the court were to set a new non-parole period of 18 months, backdated to 28 December 2023. This decision reflects the court's consideration of Mr Perez's rehabilitation efforts and the need for him to demonstrate sustained compliance with parole conditions to avoid further breaches.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons below, I have determined to fix a non-parole period of 18 months, backdated to 28 December 2023.Background On 1 January 2004, Mr Perez murdered Mr Kenneth Murphy. On New Year’s Eve, Mr Perez went to the Mars Bar, a popular venue for homosexual men, and later in the morning of 1 January 2004 went to the home of Mr Murphy. Mr Perez said Mr Murphy made sexual advances to him which he did not welcome but he agreed to give him a massage. When Mr Murphy was lying face down on a bed, Mr Perez attacked him with a wheel brace, then went to the kitchen, took a knife and stabbed Mr Murphy in the neck and abdomen. With the assistance of his family, he obtained legal representation and, on 3 January 2004, surrendered to police and admitted to the killing. The sentencing remarks of Bleby J indicate that at the time, Mr Perez had been a heavy intravenous user of methylamphetamine for about 10 years, overlapping with an earlier period of 10 years of substantial use of cannabis and other drugs, including LSD and cocaine. Mr Perez was significantly affected by methylamphetamine at the time of the murder. In sentencing, Bleby J found there were aggravating circumstances including that Mr Perez brought the wheel brace with him to the house. Justice Bleby, however, noted that Mr Perez acknowledged his guilt, surrendered to police and accepted responsibility for his actions. While in custody, Mr Perez received consistent reports of good behaviour and excellent work. He was assessed at low risk of violent re-offending and therefore was not considered suitable for the violence prevention program. He completed an anger management course. Breaches of Pre-Release Centre regulations and parole Mr Perez was initially released to reside as a parolee at the Adelaide Pre-Release Centre. On 1 August 2018, Mr Perez received a negative test and was due to re-commence employment as a project fire fighter for the Department of Environment, Water and Natural Resources on 3 September 2018. On 28 August 2018, Mr Perez advised the regional director his car had been damaged; he attributed this to a former Department for Correctional Services officer, Ms Stretton, with whom he had had a disagreement. Mr Perez was told to cease all contact with Ms Stretton. On 2 September 2018, Ms Stretton phoned the Adelaide Pre-Release Centre claiming Mr Perez was harassing her. Ms Stretton provided various information which resulted in Mr Perez being searched and being found in possession of a number of items, including two strips of Suboxone, a USB flash drive and a glue stick. Mr Perez was returned to Yatala Labour Prison and charged with delivering a prohibited item to a prisoner. Mr Perez’s antecedent report shows that on 9 April 2019 he was convicted of three counts of delivering a prohibited item to a prisoner and discharged without penalty. On 30 October 2018, during an interview with the Parole Board, Mr Perez told the Parole Board that he had sustained a shoulder injury which was causing him considerable pain and distress and he was using Suboxone to manage his pain. The Parole Board received a certificate from an orthopaedic surgeon confirming Mr Perez had a rupture to his bicep tendon.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In R v Bakewell,[2] Kourakis CJ concluded s 47(5)(b) only applies when the court is fixing a non-parole period for the first time. [2] [2022] SASC 39 at [46]-[48] citing R v Brady (2015) 123 SASR 294; R v Fricker [2017] SASC 107.Consideration As the history set out above demonstrates, while on parole, Mr Perez has relapsed into illicit substance abuse. On a number of occasions his drug tests have been positive. He has also admitted to significant use of illicit drugs which was not detected partly as a consequence of deception. While Mr Perez has breached his parole on multiple occasions through illicit substance abuse, he has only received one conviction, being that in 2019 for delivering a prohibited item to a prisoner for which he was discharged without penalty. Mr Perez’s substance abuse is nonetheless of significant concern, especially in light of the link between drug use and the offending for which he was sentenced, being offending of the most serious kind. I accept and agree with the Parole Board’s observations about the importance of Mr Perez making a genuine commitment to, and addressing, his substance abuse without which intervention and counselling will be of little utility. Given the significance of Mr Perez’s breaches of parole conditions through drug use and the associated criminogenic risk, Mr Perez’s insight into his triggers and willingness to be open with his supports is critical. The Parole Board letter, including by reference to Mr Perez’s 2024 annual review report, indicates Mr Perez’s increased levels of awareness. Since his return to custody in late 2023, Mr Perez appears to have taken active, positive steps towards rehabilitation through engaging in the programs to which I have referred above. His voluntary attendance at Alcoholics Anonymous to learn and apply techniques to address his drug difficulties suggests a commitment to facing his substance abuse issues. I am prepared to accept his counsel’s submissions that the Parole Board letter announcing the cancellation of Mr Perez’s parole has had a profound effect on him. In doing so, I have not overlooked that the Parole Board did warn Mr Perez. Since receiving that letter, Mr Perez has spent about 17 months in custody with time to reflect on the potential consequences of the prospect he may not be released. I consider it appropriate to fix a new non-parole period. In doing so, I take into account the steps Mr Perez has taken, including his engagement in the SMART Recovery program and Alcoholics Anonymous. These efforts are a positive step towards Mr Perez addressing his problems with illicit drug use and the associated risk of offending. Nevertheless, Mr Perez will have to translate those efforts into abstinence in the community when faced with the challenges of stressors and triggers. Taking into account the impact of the cancellation of parole upon him, the steps he has taken and the time he has spent in custody, I am satisfied Mr Perez has substantially served a period of time in custody as a sufficient reminder of the critical importance of complying with his parole conditions and the paramountcy of maintaining his abstinence from illicit drug use to ensure he does not further breach his parole conditions. Order