R v Smith No. DCCRM-03-1303

[2004] SADC 33

R v SMITH
[2004] SADC 33

Judge Kelly
Criminal

1. The applicant Jason Paul Smith has applied for an order that the Court fix a non-parole period in respect of a sentence representing the balance of cancelled parole to be served by him of 1 year, 5 months and 29 days. The application is made pursuant to Section 32(3) of the Criminal Law Sentencing Act.

2. The background to this matter can be found in the application dated 8 December 2003 and the report from the Parole Board dated 3 February 2004 together with the annexed transcript of proceedings before that Board on 28 August 2003 and 25 November 2003.  In support of the application I also heard submissions from the applicant’s solicitor, Mr Katsaras on 18 February 2004.   

3. After considering all of the material before me and the submissions from Mr Katsaras, I have determined that it is not appropriate for me to fix a non-parole period in respect of the balance of the sentence to be served by Mr Smith. 

4. I am mindful of the fact that the applicant is still a relatively young man at aged 27 and that he will, in any event, be released into the community in September this year.  Ordinarily, it would be a far better outcome if the applicant could be released prior to the expiration of the sentence to be served on conditions and terms which would both promote his rehabilitation and protect the community to which he will inevitably  return towards the end of this year. 

5. However, on reading the transcript of proceedings before the Parole Board and upon hearing submissions from Mr Katsaras in Court on 18 February 2004 I am concerned that nothing has changed since the proceedings before the Parole Board and I consider that the applicant’s prospects of rehabilitation are minimal.  I did initially consider setting a non-parole period that would enable some supervision of the applicant whilst on parole and compulsory attendance at a Sexual Offenders Treatment Programme to take place. 

6. However, it is clear, from the applicant’s own submissions to the Parole Board in November 2003 that he had no intention of remaining in South Australia, notwithstanding any condition the Parole Board might impose that he do so, still less any intention to undertake any counselling or treatment programme with regard to his offending.  His explanation to the Parole Board in November 2003 for failing to avail himself of the opportunity, which had then been given to him and for failing to report to his parole officer in Victoria was ludicrous.  Quite plainly he was untruthful.

7. As a result of his behaviour whilst in Victoria, the Victorian authorities are no longer prepared to supervise the applicant’s parole.  Given his history, their refusal is understandable.  I simply have no confidence that the applicant would even remain in South Australia were I to fix a non-parole period that would enable him to be released prior to the expiration of his sentence. 

8. In all of the circumstances I decline to fix a non-parole period.  I have taken into account all of the matters which were put to me and I have formed the view that the behaviour of the applicant, whilst on parole, together with his assertions most recently in November 2003 are indicative of a wilful refusal to submit to any conditions which might be imposed by the Parole Board.