R v Tytler No. Sccrm-01-190

[2002] SASC 246

R v TYTLER

[2002] SASC 246

Criminal

1. MULLIGHAN J                 The applicant has made an application pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 for an order fixing a non-parole period.

2. He is currently serving a sentence of life imprisonment for murder and a sentence of imprisonment for eight years for seven counts of unlawful sexual intercourse and one count of attempted unlawful sexual intercourse.

3. On 1^st May 1980 the applicant was found guilty of the murder of Joseph Leslie Pardon at Glenside on 18^th December 1979.  The circumstances of that crime are that Mr Pardon was in a panel van with the applicant’s wife from whom he had been estranged for about six weeks.  He had seen his wife returning from an outing with this man and another couple.  He obtained a rifle from his motor vehicle. He loaded it and shot Mr Pardon after repelling his wife who was trying to disarm him. He had been drinking and had previously failed to persuade his wife to return to him.

4. The applicant pleaded not guilty to the charge of murder and claimed that the rifle had discharged accidentally. That defence was rejected by the jury. He was sentenced to life imprisonment on 1^st May 1980. At that time the Court did not have the function of fixing a non-parole period. That function was given to the Courts by the Prisons Act Amendment Act 1983. The applicant then made an application to the Court to fix a non-parole period. On 23^rd December 1985, Prior J fixed a non-parole period of 15½  years which commenced on 28^th December 1979 when the applicant was taken into custody.

5. Prior J made observations about the applicant which are relevant upon consideration of this application. He accepted that he had experienced difficulty in interpersonal relationships and with alcohol prior to the murder. His childhood and adolescence lacked stability.  By the time the non-parole period was fixed, the applicant had been in prison for about six years and his behaviour and development during that time was the subject of reports to the Court. Prior J accepted that the applicant had genuine feelings of remorse and contrition and had undertaken counselling which had benefitted him in appreciating the need to control anger. He had developed insight into his problem with alcohol. He accepted that the applicant is an intelligent man and was motivated towards using his time constructively. He had earned the trust and respect of prisoners and staff and had gained confidence in mixing with the general prison community.

6. At the time of fixing the non-parole period, Prior J had every reason to be optimistic about the applicant’s prospects of successful rehabilitation. In the course of his remarks in fixing the non-parole period, after referring to the punitive, deterrent and preventive purposes of punishment relevant to that task, he said:

   “I am, of course, also entitled to take into account the likelihood of your response to parole. In that connection, it is plain that if the expectations of so many are confirmed, then parole for you is something which should not inspire the majority of the community to be anxious or concerned.”

   After referring to positive features of the applicant’s response to his crime and his activities in prison, he said:

   “It gives me some confidence that you will respond well to both the fact of the parole and the fixing of a period within which you can expect parole to occur if you maintain the commendable spirit and attitude that people have spoken so highly of.”

7. Information about the applicant’s background has been placed before me in the form of reports from Mr Proeve, a forensic psychologist, which was provided to the Parole Board and from Mr Balfour, who is also a forensic psychologist, who provided his report to the legal representative of the applicant for the purpose of this application. The applicant is now aged 46 years. He was brought up in a dysfunctional and violent household. His parents abused alcohol and the applicant was cared for by other relatives at times. He was angry and rebellious when young and was violent at school. He left school at Year 11. He came into conflict with the law. Together with other youths he was convicted of indecent assault upon a young teenage girl who was a friend of his sister. Also he was convicted of assaults and he abused alcohol. However, he was never placed into detention. He was a heavy drinker from the age of 14 years until he met his first wife when aged 20 years. After leaving school he obtained employment and had a good work record, being employed about 80 per cent of the time until he was imprisoned.

8. His first marriage encountered difficulties after the death of a child soon after birth and his first wife left him after about five years. That marriage was dissolved in 1983 when the applicant was in prison.

9. Whilst in prison the applicant appears to have been a model prisoner. He was trusted and respected by prisoners and staff and undertook tertiary education. He obtained a degree of Bachelor of Education, a Diploma of Teaching and a post-graduate degree in Social Administration. When at the Cadell Training Centre, he worked as a volunteer with disabled people in the Riverland. He organised sporting and recreational activities for the intellectually disabled and later worked as a manager of a day options service for the intellectually disabled. His work in these activities was satisfactory. He undertook various jobs in prison satisfactorily.

10. In 1989 the applicant met his present wife who was friendly with a female prison officer. He was released on parole on 29^th November 1991 having been on home detention for about the previous 10 months. In all, he had been in prison for a few weeks short of 12 years. The non-parole period had reduced by reason of remissions. At that time he was released on licence for 10 years with respect to the sentence of life imprisonment. Had he served that period without offending, the life sentence would have been deemed to have been served.

11. He went to live with his wife and her two children, a daughter aged nine years and a son aged five years. They subsequently married. According to him, the marriage was successful at the beginning but their relationship deteriorated because of financial difficulties due to his not being able to earn an income. There are two children of this relationship, both boys aged eleven years and four years. He worked in share and respite houses for the intellectually disabled and undertook other volunteer work. He played cricket and football whilst at Cadell. He did not abuse alcohol or illicit drugs after his release. He claims that he was intoxicated by alcohol at the time of the murder and to have learned the lesson that he must never use alcohol because of its potential to make him violent.

12. The applicant was unfaithful to his second wife. He acknowledges having sexual affairs with three women. That is a matter of little significance except in so far as it indicates a lack of sexual control and honesty on the part of the applicant. When the daughter of his second wife was aged 12 years, he commenced to sexually abuse her. The first of the offences in point of time which was charged occurred when she was aged 14 years, but it was acknowledged by the applicant in the District Court that she was aged 12 years when he began to sexually abuse her. The sexual abuse occurred within three years of the applicant being released on parole. The offences occurred over a period of nearly three years from 3^rd July 1996 until 5^th June 1999 when the girl was aged from 14 years to nearly 17 years, but the total period of sexual abuse occurred over a period of five years and was a continuous course of conduct of that nature over that period. The sexual intercourse was comprised of acts of cunnilingus, fellatio, vaginal sexual intercourse and one incident of attempted anal sexual intercourse. His second wife was not home on occasions due to employment which afforded the applicant the opportunity to commit the offences. He exposed the girl to pornographic video tapes on one occasion and required her to dress in her mother’s lingerie. On one occasion the girl’s brother unexpectedly entered a room when he was performing cunnilingus upon her. The boy was greatly disturbed and told his mother. She confronted the applicant and he promised to stop but the conduct continued.

13. When the girl became involved in relationships with young men, the applicant required her to disclose when it was likely that she would be having sexual relationships and on occasions he observed her doing so.

14. On one occasion in 1999 the girl objected to the applicant’s sexual advances and he struck her. Some time later she left home and eventually reported the conduct to the police. The applicant was questioned and confessed. He was arrested on 30^th June 2000 and charged with the offences which have been mentioned. He pleaded guilty in the District Court and was sentenced to imprisonment for eight years. He received a reduction of nearly 25 per cent on account of his plea of guilty. That sentence was deemed to commence on 30^th June 2000.

15. The sentencing Judge correctly took a very serious view of this offending. He observed the applicant had abused his position of trust and committed serious sexual acts at a time when the girl was helpless and under his care. The consequences to the girl have been devastating. The applicant took her virginity and has deprived her of normal sexual development. Her brother has also suffered. He has severe feelings of guilt because he feels that he failed his sister in not preventing the abuse even though he was too young to do anything about it. The parents of the girl have suffered considerably as is to be expected. The sentencing Judge accepted opinions of Dr Raeside that the applicant suffers a number of psychiatric and psychological problems, including a major depressive disorder and a dependant personality.

16. According to Mr Proeve, intensive intervention for sexual offending offered at the Sexual Offenders Assessment and Treatment Programme is appropriate. However, such intervention and appropriate treatment is not, at present, available in prison and may have to be deferred until the applicant is released on parole.

17. Even though the applicant had served the non-parole period fixed with respect to the murder and was at liberty on licence and on parole when he committed the sexual offences, the non-parole period now to be fixed must be with respect to the sentence of life imprisonment for murder and imprisonment for eight years for the sexual offences: R v Beauregard-Smith (2001) 79 SASR 408. Upon being convicted of the sexual offences, both the release on licence and the parole were cancelled and the applicant is now serving the life sentence and the sentence for the sexual offences.

18. The judgments of the Court in R v Beauregard-Smith, Doyle CJ, Williams and Martin JJ provide the necessary guidance in the fixing of the non-parole period in the present case. I must have regard to the non-parole period fixed with respect to the sentence of life imprisonment but that non-parole period is not to be regarded as satisfying the requirements for the offence of murder. The matter is to be considered afresh in light of the present circumstances, including what is known about the applicant. One matter which illustrates that principle is the significance of the sexual offences. As has been seen, when Prior J fixed the non-parole period of 15½  years, he took a favourable view about the applicant’s prospects of rehabilitation. It is now known that such a view, although justified upon the information available at the time, has turned out to be incorrect.

19. Although there are features of the applicant’s life which suggest good prospects of rehabilitation, namely the applicant’s voluntary work, employment, sporting activities, marriage and his establishing a home, the sexual offences demonstrate that, at present, such prospects are poor.  These crimes are very serious indeed and indicate that the punitive, deterrent and preventative considerations in fixing a non-parole period (R v Stewart (1984) 35 SASR 477) must receive prominence. Despite all of the matters favourable to the applicant, it is plain that there is a real need for the protection of the community.

20. Under the present sentencing regime, the applicant will not be entitled to release on parole upon the expiration of the non-parole period. At that time, if he makes an application for release, the Parole Board will consider whether to recommend to the Government that he be released on parole. The non-parole period is the minimum period he must serve in prison in order to satisfy the purposes of punishment mentioned in Stewart.

21. I must have regard to the circumstances of the murder and of the sexual offences and the seriousness of all of these crimes.  It is now clear that there is little prospect of successful rehabilitation.  Even after making due allowance for the many positive aspects of the life of the applicant since he was imprisoned for the murder and after his release on parole, the non-parole period now to be fixed must be substantial.  In my view, that period should be 20 years.  I must have regard to the period which the applicant has served in prison before his release upon parole which, as I have mentioned, was about 12 years.  It is appropriate to reduce the non-parole period accordingly.

22. I fix a non-parole period of 8 years to commence on 30^th June 2000.