R v Webb - [2016] SASC 136

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v WEBB
[2016] SASC 136
Reasons for Decision of The Honourable Justice Bampton
22 August 2016
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - LIFE SENTENCE - REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD
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 1992 to life imprisonment and a non-parole period was set – applicant released on parole on 31 July 2010 – applicant breached the conditions of parole on multiple occasions – the applicant’s release on parole was cancelled on 19 November 2015 effective 8 September 2015 and his life sentence reinstated.
Non-parole period of 13 months fixed backdated to 8 September 2015.
Statutes Amendment (Truth In Sentencing) Act 1994 (SA); Correctional Services Act 1982 (SA) s 74; Criminal Law (Sentencing) Act 1988 (SA) s 32, referred to.
Foley v Police [2008] SASC 338; R v Roberts (2016) 125 SASR 40; R v Miller (2000) 76 SASR 151, considered.

R v WEBB
[2016] SASC 136
Criminal: Application to fix a non-parole period

BAMPTON J: Mr Webb is serving a life sentence for a murder committed on 12 August 1991. On 8 September 1992, the Court fixed a non-parole period of 19 years and nine months. That non-parole period was later reduced in accordance with the Statutes Amendment (Truth in Sentencing) Act 1994 (SA) to 12 years, 10 months and 24 days.
Mr Webb was released on parole on 31 July 2012. On 19 November 2015, pursuant to s 74 of the Correctional Services Act 1982 (SA), the Parole Board (the Board) cancelled Mr Webb’s parole effective from 8 September 2015, and his life sentence for murder was reinstated.
Between his release on parole and the cancellation of parole, Mr Webb served the following periods in custody for breaches of his parole conditions:
15 January 2013         to       11 June 2013
2 December 2013      to       2 June 2014
3 July 2014                 to       20 October 2014
13 January 2015         to       20 August 2015
8 September 2015     to       19 November 2015.
Mr Webb now applies for the fixing of a non-parole period pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 (SA) (the Act).
Background
The Court has received reports dated 10 May 2016, 16 May 2016 and 28 June 2016 from Mr Bourne, the Deputy Presiding Member of the Board.[1] The report dated 10 May 2016 sets out the lengthy history of Mr Webb’s parole and the breaches of parole conditions.
[1] Pursuant to Criminal Law (Sentencing) Act 1988 (SA) s 32(9).
Parole served before the life sentence
Mr Webb served two periods of release on parole before the imposition of the life sentence. The first period was from 29 June 1988 until the expiry of that sentence on 24 January 1990, and the second period from 19 April 1991 until 13 December 1991. Both these periods of parole were punctuated by numerous breaches of parole conditions.
Mr Bourne comments in the 10 May 2016 report that it is likely that Mr Webb abused alcohol and/or cannabis throughout both periods of parole, at least from time to time.
It was during the second period of parole that the murder was committed. At the time of committing the murder, Mr Webb had been drinking to excess. He had also been using cannabis in the days prior.
Release on parole while serving the life sentence
On 9 June 2005, Mr Webb became eligible for early release on parole at the discretion of the Board.
Mr Webb was interviewed by the Board on 8 March 2005. The Board noted that he minimised his use of cannabis whilst in prison, evidenced by a number of positive urinalysis results. However, the Board noted that the urinalysis results had for some period prior to the interview been negative to all illicit drugs. Mr Webb was placed at the Adelaide Pre-Release Centre (the APRC) and undertook a TAFE course and some employment. He made application to be released and transfer to New South Wales to live with his mother and brother.
The Board deferred its decision on Mr Webb’s application whilst the New South Wales parole authority determined the prospect of a parole transfer. As it transpired the New South Wales parole authority did not approve the proposed residence, noting that Mr Webb’s family said he was a virtual stranger.
Thereafter, the Board approved Mr Webb’s proposal that he reside in APOSS accommodation in Adelaide and, on 12 July 2005, formally recommended to the Governor in Executive Council that Mr Webb be released on parole. On 1 December 2005, the Governor refused Mr Webb’s release.
Mr Webb was eligible to reapply on 31 May 2006. In August 2007, he was transferred to the APRC to commence resocialisation and participate in the Violence Prevention Program recommended by the Board. Mr Webb commenced the program, but did not complete it as he was transferred from the APRC due to positive urinalysis results. Mr Bourne notes that, to his credit, Mr Webb completed the program at the Port Lincoln prison in the period June 2009 to April 2010.
The Board again recommended Mr Webb’s release on parole on 3 August 2011, which was approved by Executive Council on 21 March 2012. However, as urinalysis test results were positive to cannabis, Mr Webb’s release was deferred pending his provision of two negative urinalysis results.
In view of Mr Webb’s cannabis use relapse, the Minister for Correctional Services requested the Board reconsider its recommendation for Mr Webb’s release. The Board agreed and reinterviewed Mr Webb on 3 July 2012. The Board stressed in the interview the need for Mr Webb to abstain from both alcohol and cannabis if released on parole. Following the interview, the Board confirmed its decision to recommend his release but requested Mr Webb be referred to the Community Mental Health Team to monitor ongoing issues of depression or other mental health issues.
On 10 July 2012, Executive Council accepted the Board’s confirmation of its recommendation for release.
On 31 July 2012, Mr Webb was released on parole for 10 years whereupon his life sentence would expire. Mr Webb agreed to conditions of release on parole including that he abstain from both alcohol and illicit drugs and not attend any licenced hotel or licenced entertainment venue. He was released to live in Port Lincoln.
However, a urinalysis test performed on 7 August 2012 was positive to cannabis which Mr Bourne says “set the tone for the entire period of Webb’s release on parole”. A Board summons was issued and an interview with Mr Webb conducted on 4 October 2012.
At the interview, Mr Webb said he was disappointed and remorseful and that “it is hard out there but now I’ve got back on track”. He told the Board that he had consulted his general practitioner in relation to anxiety or depression and had been prescribed medication. He was warned explicitly by the Board that should his parole be cancelled he would revert to a sentence of life imprisonment, possibly with minimal, if any, chance of again being released on parole. Mr Webb’s Community Corrections Officer agreed to provide close supervision and support. Despite this, Mr Webb continued to use cannabis.
Mr Bourne advises that he and the Presiding Member met with Mr Webb in person when they visited the Port Lincoln Community Corrections Centre on 15 November 2012. They warned Mr Webb that he had to maintain complete abstinence from alcohol and cannabis whilst on parole.
Unfortunately, on 31 December 2012, police reported Mr Webb’s attendance at a hotel in Port Lincoln. Mr Webb was noted to be fairly intoxicated and had to be directed to leave the premises. On 8 January 2013, Mr Webb admitted to his Community Corrections Officer that he had been using alcohol and cannabis since his release on parole.
On 25 October 2012, Mr Webb completed a brief Alcohol and Other Drugs (substance abuse counselling) program. Mr Webb was referred by the facilitator of that program for one-on-one intervention in order to “engage around issues which may be contributing to anxiety and stress that leads to the use of marijuana”. At the first one-on-one session, Mr Webb said that he did not believe further counselling would be required and cancelled all further appointments. This caused the Board considerable concern.
Mr Webb was returned to custody from 15 January to 11 June 2013 due to his breaches of parole. Urinalysis results continued to be positive to cannabis.
A formal warning letter was issued on 20 August 2013. The Presiding Member of the Board interviewed Mr Webb on 9 October 2013 regarding the continued positive urinalysis results. Mr Webb said at this interview that he had obtained employment as a painter and had some prospect of Housing SA accommodation. He was again warned of the consequences of further breaches. The Presiding Member requested that Mr Webb’s Community Corrections Officer continue frequent urinalysis tests and provide a progress report in 10 weeks’ time.
That report on 21 November 2013 was not favourable. Mr Webb was not compliant with his Community Corrections Officer’s directions to engage in substance abuse counselling and he continued to use cannabis. He had also provided misleading information about his employment.
Mr Bourne comments that in Mr Webb’s favour, he received a commendation for the high standard of work he had performed on a painting project at an OARS hostel in Port Lincoln.
The Board issued a further warning and Mr Webb was again returned to custody from 2 December 2013 until 2 June 2014. Mr Webb was again interviewed by the Board on 25 March 2014, at which time the Presiding Member said:
Mr Webb, you’re back here on a Parole Board warrant because the Parole Board lost patience with you. You just kept using marijuana. I don’t know how many times you were warned. There are only so many chances you are going to get and you have been told all this before and you have taken no steps to stop, although I noticed that you had a negative test on 3 December last year.
Following the provision of three negative urinalysis results and an OARS hostel room becoming available, Mr Webb was released from the warrant on 2 June 2014. The Board added a condition to his parole conditions requiring him to undertake 200 hours of community service within eight months of his release.
However, urinalysis was again positive to cannabis on 11 June 2014 and there was noted to be a significant increase in the level of cannabis detected in a sample provided on 26 June 2014. Mr Webb was again returned to custody on a warrant from 3 July 2014 until 20 October 2014.
Following his release from the warrant, Mr Webb ceased to perform the community service work imposed by the Board and, on 16 December 2014, failed to attend for weekly reporting. He told the Board that he had obtained casual employment and that he had not reported because of the tiredness he was suffering caused by the manual on-call work. However, the Board noted that he had only performed two days’ work between 1 and 14 December 2014. The Board issued a summons to explore, by way of further interview, his progress.
The Board revoked its summons and authorised a warrant following urinalysis on 22 December 2014 indicating the sample provided was not consistent with human urine and urinalysis on 26 January 2015 positive to cannabis at a high level.
Mr Webb was in custody from 13 January 2015 until 20 August 2015.
During an interview with the Board on 21 April 2015, Mr Webb, whilst admitting his cannabis use, denied he had substituted another substance for his own urine.
On 20 August 2015, Mr Webb was released to reside at an OARS hostel in Port Augusta. However, the day after his release, urinalysis at Port Augusta was positive to both alcohol and cannabis. Mr Bourne reports that Mr Webb’s Community Corrections Officer in Port Augusta was prepared to tolerate the first THC result as it was not clear when he smoked. The officer recommended that he be placed on 100 hours community service as he had indicated that he would like to work. The Board agreed and added a condition requiring Mr Webb to undertake 100 hours of community service work within six months. Unfortunately, on 28 August 2015, urinalysis was positive to cannabis at high levels and Mr Webb failed to attend for community service work. He admitted to his Community Corrections Officer that he had been using alcohol and cannabis and that the usage was increasing.
Cancellation of parole
On 8 September 2015, Mr Webb was arrested and returned to prison pursuant to a warrant. His Community Corrections Officer advised the Board that when Mr Webb’s room was cleaned out following execution of the warrant, “his home‑made bong and empty casks of wine and other alcohol bottles” were found. During his interview with the Board on 19 November 2015, Mr Webb minimised his cannabis and alcohol use. The Board found the further breach of the no drugs condition proved and cancelled Mr Webb’s parole effective from 8 September 2015, and his life sentence was reinstated.
Mr Bourne reports that urinalysis on 7 April 2016 was negative to all illicit drugs.
On 29 April 2016, Mr Webb was found suitable for admission to the Making Changes program at the Mount Gambier prison. Mr Webb successfully completed Phase 1 of the program; the facilitators noting that he participated knowledgeably, took a leadership role, and engaged in group discussions constructively.
In his report dated 16 May 2016, Mr Bourne advises that Phase 2 of the Making Changes program (the substance related module) was scheduled to commence on 24 June and finish on 26 August 2016. The Board had also received advice to the effect that following Phase 2, Mr Webb will be provided with additional therapeutic intervention to address his somewhat unique substance abuse needs. Offender Rehabilitation Services has also proposed that Mr Webb would benefit from time at the APRC in order to participate in reintegration programs together with the provision of additional one-on-one work targeting mental health and substance relapse issues related to reintegration/release. It is also suggested that that Mr Webb transfer to the APRC soon after he completes the Making Changes program for any therapeutic gains made during program to be developed and for “more specific follow-up related to his somewhat unique profile”.
In response to my inquiry as to whether the fixing of a non-parole period was a prerequisite for transfer to the APRC, Mr Bourne advises by letter dated 28 June 2016 that the Department for Correctional Services protocols stipulate that:
… a prisoner must meet certain criteria before being considered for transfer to the Adelaide Pre release Centre, including having a set non parole period. If released on parole the Board’s expectation is that Mr Webb would be required to reside at the Adelaide Pre release Centre in it’s [sic] capacity as a parole hostel pursuant to s68 of the Correctional Services Act, 1982.
Mr Bourne also advises that the Serious Offenders Committee of the Department for Correctional Services is responsible for considering the placement of life sentence prisoners at the APRC.
Finally, Mr Bourne advises that in the final session of Phase 1 of the Making Changes program, Mr Webb “shared with the group his past and future story, providing a comprehensive account of times in his life that have shaped his spiritual beliefs and values”.
Mr Webb’s submissions
It was submitted that Mr Webb has a good work ethic and that he aims to obtain employment, save money and return to New South Wales to live with his family.
I was asked to treat this matter as an exceptional matter and set a non-parole period that allows Mr Webb’s release into the community shortly. It was submitted that he has been in custody for the better part of 25 years. It was submitted that Mr Webb fully appreciates the nature of parole and that it requires him to be abstinent. He has had problems with abstinence, mistakenly thinking that he could live the same life as other workers around him going to the hotel, drinking and smoking cannabis.
It was submitted that Mr Webb has had considerable time to reflect since he has been taken back into custody. He understands his obligations and is determined not to return to cannabis smoking or drinking alcohol.
It was contended that there has been no relapse into reoffending and that the Court could be confident that he is not at risk of relapsing into offending.
The Director’s submissions
As submitted by the prosecution, Mr Webb’s behaviour during previous periods of release on parole is an acutely relevant matter in determining whether or not to fix a new non-parole period.[2] It was submitted that if I am minded to fix a non-parole period it ought to be a lengthy period as I can have no confidence that Mr Webb will comply with his parole conditions given his chronic pattern of non‑compliance and cannabis use.
[2] Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(c)(iii).
The fixing of a non-parole period
Mr Webb spent 21 years in custody before first being eligible for release on parole. Mr Webb’s behaviour whilst on parole and breaches of parole conditions since his release on 31 July 2012 must be taken into account in assessing his prospects of rehabilitation. Mr Webb’s use of cannabis is an entrenched pattern of behaviour. His use of alcohol whilst on parole needs to be considered against his history of having committed murder whilst intoxicated.
In determining whether to fix a non-parole period, I have considered the likelihood of Mr Webb responding to parole, the prospects of his rehabilitation by means of parole and the prospects of him complying with the conditions of his parole. I have had regard to the gravity of his conduct that has resulted in the cancellation of the parole.[3] The gravity of his breaches informs both the need for deterrence and the prospect of rehabilitation in fixing a new non-parole period. I have also had regard to the need to deter parolees from breaching conditions of parole.[4]
[3] Foley v Police [2008] SASC 338 at [22]; R v Roberts (2016) 125 SASR 40 at [25].
[4] R v Roberts (2016) 125 SASR 40 at [27].
Mr Webb’s attempts to reintegrate into the community have been severely compromised by his inability to abstain from cannabis use. He has not reoffended, however, the fact that he committed the murder whilst intoxicated and whilst on parole is a matter I must keep in mind. Having regard to his prior breaching conduct, the indications for his prospects of rehabilitation are not promising.
Having said that, Mr Webb appears to have participated meaningfully in the Making Changes program. The facilitators of that program have recommended that he attend at the APRC as soon as possible following completion of Phase 2 (which will be at the end of August 2016), in order that he can make the most of the therapeutic gains he has made by participating in reintegration programs and one-on-one intervention.
Mr Webb has served five periods in custody for breaches of parole conditions totalling approximately 32 months. He has been in custody since 8 September last year pursuant to the most recent warrant.
It is undoubtedly in Mr Webb’s interests and that of the community that I fix non-parole period that allows for Mr Webb to transfer to the APRC soon after he completes Phase 2 of the Making Changes program. This will give him the opportunity to maximise the gains he made on the Making Changes program and the best prospects of rehabilitation and reintegration into the community.

I fix a non-parole period of 13 months backdated to 8 September 2015, bearing in mind it is for the Board to assess Mr Webb’s suitability for release into the community once he is eligible to apply for parole.[5]
[5] R v Miller (2000) 76 SASR 151 at [42].