R v Rogers - [2005] SADC 10

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ROGERS
Reasons for Decision of His Honour Judge Robertson
11 February 2005
CRIMINAL LAW
APPLICATION TO FIX A NON-PAROLE PERIOD
Applicant serving a term of imprisonment without a non-parole period - application to fix a non-parole period - principles to apply - non-parole period fixed.
Criminal Law (Sentencing) Act 1988 section 32, referred to.
R v Beauregard-Smith (2001) 79 SASR 408, applied.

R v ROGERS
[2005] SADC 10
JUDGE ROBERTSON
CRIMINAL

Peter Alan Rogers (“Applicant”) has made application pursuant to Section 32(3) of the Criminal Law (Sentencing) Act 1988 (as amended) for the fixing of a non-parole period. The Applicant is currently serving a sentence of imprisonment without a non-parole period.
On 21 May 1998 the Applicant was sentenced in the District Court to a sentence of imprisonment of six years five months and two weeks with a non-parole period of eighteen months for various offences and breaches of Bonds.
On 21 November 1999 the Applicant was released on parole. He failed to report for supervision on 26 April 2002 and no further contact was made thereafter by the Applicant with his supervising officer. As a result of the Applicant’s breaches of his parole, a warrant was issued by the Parole Board for his arrest. The Applicant was arrested on 2 July 2004. On 28 September 2004 the Parole Board interviewed the Applicant during which he admitted his breaches of parole. He is currently serving the unexpired balance of his parole, being two years six months and ten days.
I have the benefit of a Report from the Parole Board dated 7 December 2004. The Parole Board reports that following the Applicant’s release on parole on 22 November 1999 and up to 24 December 1999, he had shown a mixed response to supervision. Furthermore, the Applicant had failed to attend appointments at SOTAP as directed. His attendance at SOTAP was a designated condition of his parole. Having been given an opportunity by the Parole Board to comply with the terms of his parole, the Board reports that by 19 June 2000, the Applicant had attended SOTAP as directed.
Thereafter, the Applicant’s parole appears to have proceeded uneventfully until February 2002 when he failed to report for supervision. Following that time there was difficulty in having the Applicant attend SOTAP. The Applicant had produced medical certificates from his General Practitioner issued in late 2001 and the early part of 2002 in support of aclaim that medical problems had caused him to fail to meet his obligations. The medical certificates of 15 December 2001 and April 2002 had been altered. Mr Rogers acknowledges that he wrongfully altered the certificates.
Mr Clarke, Counsel for the Applicant, submitted that towards the end of 2001 and the beginning of 2002, the Applicant had received threats from two people who were attending the Noarlunga Department of Correctional Service Office at a similar time to the Applicant. Mr Clarke said that the threats arose from some information that the Applicant had provided to authorities earlier. One of those persons, said Mr Clarke, was a Mr Chappell. It was submitted by Counsel that as a result of these threats the Applicant made a decision not to continue to report to the Noarlunga Office of the Correctional Services Department as required by his parole. He submitted that the Applicant altered medical certificates to provide an explanation for his failure to report in the period prior to his decision to break off all contact with his parole supervisor. The Applicant was not called to give evidence about these matters.
I gave Mr Petraccaro, Counsel for the Director, an opportunity to investigate these assertions by Counsel for the Applicant and report to the Court if necessary. By letter dated February 2005, Mr Petraccaro advised that the Noarlunga Correctional Services Department advised that Mr Rogers informed the Department, in January 2002, that his problem with Mr Chappell arose from a debt that he owed Mr Chappell. It appears that Mr Rogers did report on 18 April 2002 and 19 April 2002. It was after the latter date that the Applicant failed to make any further contact with the Department.
I do not accept the assertions by Mr Clarke, from the Bar table, that the reason for the Applicant’s failure to continue reporting was that he was concerned about threats made to him by other persons attending the Noarlunga Correctional Service Office. In any event, even if I did accept that was the reason, it is not a mitigating circumstance, for the Applicant’s conduct in breaking off all contact with his parole supervisor. If he was concerned for his safety, it was a matter of reporting that fact to the Department and making arrangements for the introduction of a new reporting and supervision regime.
I was told by Mr Clarke, that in late 2002 the Applicant commenced a relationship with a Ms Stone. This relationship is continuing. It is clear from a letter I have received from Ms Stone that it is a strong and loving relationship. Ms Stone has two children from a previous relationship. Both children treat the Applicant as their father. There is a touching letter to the Applicant from Alan, who is Ms Stone’s eldest child, in which he expresses his love for the Applicant and acknowledges him as his father. Ms Stone and the Applicant have a child of their own. Their son is a little over twelve months. It is clear from the letter of Ms Stone that the Applicant is a devoted father to each of the children.
Since April 2002, being the last time the Applicant reported pursuant to the terms of his parole, I am told that he has undertaken various forms of employment, including work at Mitsubishi at Lonsdale and also working in the paving and landscaping industry.
In the period during the time that he last reported to the Correctional Services Department and his arrest on 2 July 2004, the Appellant has not committed any offence. Indeed, it is not suggested that he came to the attention of the Police during that period.
In dealing with this application I first need to consider whether I should proceed to fix a non-parole period. Section 32(5)(c) provides that a Court may decline to fix a non-parole period if the Court considers it is inappropriate to do so. The provision sets out the criteria relevant to the exercise of discretion. The fixing of a non-parole period, brings into account that after the non-parole period has been completed, the Applicant is then required to serve the remainder of his sentence on parole. At first blush, taking into account the Applicant’s past performance whilst on parole, it may be thought that he will not respond appropriately during his period on parole. This would be a relevant factor in determining whether to fix a non-parole period. However, his conduct of establishing a family relationship with Ms Stone and her children and holding down employment during the period when he was “at large” would suggest that he is now in a better position to respond to a period on parole.
In my view, taking into account all of the circumstances that I have outlined, there is no reason why I should decline to fix a non-parole.
In fixing the Applicant’s non-parole period, it is necessary to exercise the discretion afresh. Rehabilitation plays an important role in the process. However, factors such as criminality, punishment and deterrence are matters which must also be given some weight (R v Beauregard-Smith(2001) 79 SASR 408 at 413-15).
Judging from the Applicant’s steps to rehabilitate himself in the period from April 2002 until July 2004, there is every reason to feel confident that the Applicant can achieve rehabilitation and take his place as a respected member of the community. Significant weight must be given to this factor in fixing the length of the non-parole period. He should be encouraged to continue with his rehabilitation. However, as I said there are other factors which also must be taken into account.
I fix a non-parole period of eleven months.
The Applicant has been in custody since 2 July 2004, I therefore deem the non-parole period to have commenced on that date.