R v Wilson No. Sccrm-99-68 Judgment No. S310

R v WILSON
[1999] SASC 310

Court of Criminal Appeal: Doyle CJ, Bleby and Wicks JJ

DOYLE CJ: (ex tempore) The court will give its decision now and I would ask Justice Bleby to deliver the first judgment.
BLEBY J: This is an appeal against the setting of a non-parole period by a judge of the District Court. The appellant was sentenced originally on 17 August 1994 after pleading guilty to causing grievous bodily harm with intent to do grievous bodily harm.
The offence was a serious one. It took place at a party at Murray Bridge. The appellant had been drinking through the day and had taken two Rohypnol tablets before the party began. The victim made derogatory comments regarding the appellant’s co-accused’s former girlfriend. The co-accused began a fight with the victim. At some stage the co-accused left and the appellant carried on. He beat the victim badly by jumping on his head, even after he was unconscious. The victim almost died. He spent some time in intensive care and suffered some residual brain damage.
The original sentence for that offence was six years and four months’ imprisonment with a non-parole period of three years and six months. The appellant was released on parole on 15 January 1998 and was arrested for breach of his parole on 17 May 1998. He was interviewed by the Parole Board on 28 July 1998 when his parole was formally cancelled. The board considered that the breaches had occurred on 31 March 1998.
The remaining period of his sentence as at 28 July was two years, five months and six days. It was in respect of this period that the District Court was asked to set a further non-parole period pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988. The court set a non-parole period of two years. It is that determination which is the subject of this appeal.
There were four alleged breaches of parole for which the appellant was taken into custody. The first was a breach of a condition not to enter or remain in the township of Murray Bridge. That was what the Correctional Services Act 1982 describes as a “designated” condition. Section 73 of that Act provides that a breach of a designated condition results in automatic cancellation of parole, and renders the appellant liable to serve in prison the balance of the sentence outstanding as at the date of the commission of the breach of condition.
The circumstances of this breach were that he had been given a lift from Adelaide by a friend to Point McLeay to attend a funeral. The person who took him there left without giving him a lift back to Adelaide. He was offered a lift if he could contribute to the cost of petrol. In order to obtain cash he needed to lodge a fortnightly social security form. He was taken to Murray Bridge, being the nearest office of the Department of Social Security, and lodged his form and was then taken back to Point McLeay. He spent the night at Point McLeay before withdrawing the cash and being driven back to Adelaide.
The other conditions of which he was allegedly in breach were non-designated conditions. The breach of those conditions enables the Parole Board to direct that the balance of the sentence be served for a period fixed by the board but not exceeding six months. There were three non-designated conditions of which he was said to be in breach. These seem not to have attracted the attention of the Board, no doubt because they were of limited relevance for the Board’s purposes in the light of the breach of the designated condition which the Board did find proved.
The first of these non-designated conditions was a condition not to consume alcohol. It was alleged that he had been under the influence of alcohol in the Point McLeay/Meningie area. He denied that breach before the District Court judge.
The second involved breaches of a condition to report weekly to his parole officer. The third non-designated condition, which he had allegedly breached, was that he not change his place of residence without prior permission of his parole officer. These two latter breaches were not denied before the District Court judge.
None of the breaches of conditions, including the breach of the designated condition, involved the commission of any offences. However, because one of the conditions was a designated condition, the Board had no alternative but to commit him to prison for the balance of the duration of his sentence.
The appellant is an Aboriginal person, born on 14 April 1971. He is therefore aged 28. He is one of a family of seven and was brought up in the Point McLeay area. His mother died in 1993 and his father in 1988. He attended the Point McLeay School until age of 15 and, apart from a few casual jobs and some experience in farm work, has never been employed. He has a longstanding problem with alcohol. He has a daughter from a previous de facto relationship.
He has a history of approximately 50 prior convictions, the majority of which were related to alcohol, and a significant proportion of which were driving offences. There were a few minor assaults which did not attract any serious penalties, save for one which I mention, which was committed after he had been taken into custody. While in custody, the appellant was involved in a number of incidents. One was at a funeral which resulted in a conviction of common assault. The other was at Mobilong prison which resulted in the application of CS gas into his cell to remove him. However, his pre-parole reports indicated that his behaviour had improved whilst at the Port Augusta Prison.
He completed a number of courses in prison including a domestic violence course and the “Reclaim Our Future” program which helped him to identify where his anger came from and how to control it. He had expressed regret for the commission of the offence for which he was sentenced and acknowledged that he had deserved the penalty that he received. He had apologised after his sentence to the victim of the offence. It appeared that he had learnt a lesson in engaging in that type of behaviour.
In fixing the non-parole period the District Court judge expressed reluctance to set a non-parole period at all, but considered that a relatively long period was required because of his previous record and the breaches that had been admitted, including the fact that one of them was a breach of a designated condition.
His Honour did not advert to the fact that the appellant, prior to the formal determination of the board on 28 July 1998, had already served an additional two months and 11 days in custody. However, no point is taken about that on the appeal, although the provisions of s 32(7)(a) of the Criminal Law (Sentencing) Act would seem to require that that period be brought into account.
However, regardless of that, there are other grounds on which, in my opinion, the District Court judge erred. He did so by taking into account the appellant's previous record as a factor, in itself, which dictated the length of the non‑parole period. The appellant’s previous record had been taken into account in fixing the original sentence and non‑parole period. To do so again amounted to double counting.
I do not suggest that the previous record is all together irrelevant in such an exercise. What will be relevant in determining whether a non‑parole period should be fixed, and in fixing the period in these circumstances, are the nature and circumstances of the breach or breaches of parole, an assessment of the subject’s likely future response to supervision and whether he is a good candidate for parole, bearing in mind, particularly, the need to protect members of the community from violent episodes. This seems to have been behind the reasoning of King CJ in R v James (1990) 158 LSJS 7, at 9.
The nature of the conditions breached and the seriousness of the breach may well also be an indicator of the person’s suitability for parole. Likewise, his previous record may have some bearing on the assessment of that factor, but it is not a relevant factor, in itself.
As to the nature of the breaches of condition, one of them was a breach of a designated condition. However, it was, in a sense, a technical breach, and one which caused no harm or offence to anyone. However, the sentencing judge was nevertheless entitled to regard it as a serious breach, by virtue of it being a designated condition.
The other breaches, and alleged breach, assuming they were proved, were also relatively minor and did not involve the commission of any offences. If they were the only breaches, the Parole Board would have had a discretion as to whether it would impose community service for the breach, under s 74AA of the Correctional Services Act. However, if it considered that imprisonment was appropriate, the maximum term it could have fixed was six months.
I consider that the terms of s 74(1) of the Correctional Services Act, coupled with the application of s 26 of the Acts Interpretations Act, would have the effect that, but for the breach of the designated condition, the Board could have imposed no greater term of imprisonment than six months in this instance. That, too, was, in my opinion, a relevant factor to consider.
As to the appellant’s likely response to supervision and his suitability for parole in the future, it appeared from the Parole Board’s report prior to his release that, although his record in prison had not been unblemished, there had, in recent times, been a serious attempt to reform himself. However, as the Parole Board observed in its report to the District Court, the appellant had a long-standing problem with alcohol, which was inextricably related to his offending behaviour. The report said: “Whilst he expresses good intentions it is difficult for him to translate them into action. His response to supervision has been poor in the past. He will require considerable structure and support if he is to be released.”
I have already said that I consider that the District Court judge erred in taking into account the appellant’s previous record. In my opinion, he also failed to give sufficient weight to the nature of the breaches concerned, and the influence they might have on the assessment of his suitability for parole, and what the Board could have done if the non‑designated breaches were the only ones established. For those reasons, I consider that the District Court judge erred in that the non‑parole period set was too high.
Although the breaches, in themselves, were relatively minor, there were nevertheless indications of a poor prognosis in relation to his response to supervision outside prison. That was a significant factor which militated against the fixing of a modest non‑parole period. In my opinion, an appropriate non‑parole period would have been 15 months from the date on which the Board formally revoked parole - that is, 28 July 1998 - and I would allow the appeal in order to substitute that non‑parole period. In fixing that period, I have taken into account the additional two months and 11 days which the appellant had served prior to 28 July 1998.
At the end of that period of parole, it will be for the Parole Board to determine whether he is fit to be released and under what conditions, and what conditions should be designated conditions.
DOYLE CJ: I agree.
WICKS J: I agree.
DOYLE CJ: The order of the court is as follows:
Appeal allowed.
Set aside the non‑parole period fixed by the District Court.
Fix a new non‑parole period of 15 months to run from 28 July 1998.
Mr Vadasz, you might just take the opportunity to explain to your client, before he leaves, what that means.
Also, it would be worthwhile pointing out to him that this means the Board will now have to set a new lot of conditions.
The other thing you might try to explain to him is, if he breaches and goes back in again, he may well finish up serving pretty well the whole balance of the non‑parole period.
I think it would be helpful if you could just explain to him, as I said, what our decision means, what will happen next, and the importance of him trying to adhere to the conditions hereafter.

[1999] SASC 310

21 July 1999