Williams v The Queen - [2021] SASC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

WILLIAMS v THE QUEEN
[2021] SASC 70
Judgment of the Honourable Justice Blue
10 June 2021
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - LIFE SENTENCE - REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD
Application for a non-parole period to be fixed in respect of a sentence of life imprisonment for murder.
On 8 December 2000 the applicant was sentenced to imprisonment for life and on 15 January 2001 a non-parole period of 18 years commencing on 8 December 2000 was fixed. This was equivalent to a non-parole period of 19 years, nine months and 15 days since the applicant was taken into custody.
On 8 May 2019 the applicant was released on parole, initially to reside at the Adelaide Pre Release Centre. On 1 August 2019 he was permitted to reside with a cousin. He volunteered at the Pioneers Association of SA and obtained employment by an exhibition builder and also by a company providing advocacy and assistance services to veterans and post-release prisoners.
On 23 February 2020 the applicant attended a party and stole three mobile phones and a credit card belonging to guests at the party. He was arrested on 23 February 2020 and remained in custody until he was sentenced.
On 3 August 2020 the applicant was sentenced by a Magistrate for the 23 February offending to imprisonment totalling 10 months and one week backdated to commence on 24 February 2020. The Magistrate did not set a non-parole period but referred that question to this Court as the Court that had sentenced the applicant in 2001. By reason of the sentence imposed, the applicant’s parole was automatically cancelled by operation of section 75 of the Correctional Services Act 1982 (SA).
Held:
1.Discussion of principles relevant to fixing a new non-parole period after previous parole has been cancelled (at [17]-[19]).

2. New non-parole period fixed of 18 months commencing on 24 February 2020 (at [27]).
Sentencing Act 2017 (SA) ss 47(1), 47(2), 47(3), 47(5)(c); Correctional Services Act 1982 (SA) s 75; Criminal Law (Sentencing) Act 1988 (SA) s 32(3), referred to.
R v Fricker [2017] SASC 107; R v Roberts (2016) 125 SASR 40, considered.

WILLIAMS v THE QUEEN
[2021] SASC 70
Criminal

BLUE J: The applicant, Brett Stuart Williams, applies pursuant to section 47(3) of the Sentencing Act 2017 (SA) (the Act) for a non-parole period to be fixed in respect of a sentence of life imprisonment for murder imposed on 8 December 2000.
Background
On 30 January 1999 the applicant and Lawrence Harvey Hersbach killed Mr McCormack. They did so by striking Mr McCormack in the head with a camshaft, in the case of the applicant, and a hammer, in the case of Mr Hersbach. They were arrested and taken into custody on 23 February 1999. They were found guilty of murder by a jury. They were sentenced on the basis that they did not intend to murder Mr McCormack but intended to give him a hiding, causing really serious harm, in order to teach him a lesson. They were sentenced on the basis that they believed that Mr McCormack had kicked in the applicant’s front door and stolen a voice activated recorder and a quantity of Serapax tablets and had, during the previous evening, committed a drive-by shooting at Mr Hersbach’s home.
By committing the offence, Mr Williams breached conditions of his parole in respect of sentences of imprisonment totalling 11 years and six months (converted by the Truth in Sentencing legislation to nine years, two months and 11 days) for armed robbery imposed in 1992 and the conditions of a suspended sentence bond imposed in 1998 in respect of a sentence of imprisonment for 12 months for receiving.
On 15 January 2001 the sentencing Judge, having already sentenced the applicant on 8 December 2000 to imprisonment for life, fixed a non-parole period in respect of the applicant’s offences of armed robbery, receiving and murder of 18 years commencing on 8 December 2000. This was equivalent to a non-parole period of 19 years, nine months and 15 days since the applicant was taken into custody.
While serving his sentence, the applicant undertook the following programs in prison:
·Victim Awareness;
·The Violence Prevention Program 2014/15;
·the Alcohol and Other Drugs Program;
·The Alpha Course (a voluntary program with Christian principles);
·Certificate II in Commercial Cookery and Certificate II in Asian Cooking;
·Nutrition Certificate – University of Queensland;
·Certificate IV in Business Leadership and Management and Certificate II in Micro Business Operations;
·Small Business Management and Fitness Leadership at TAFE;
·Qualified Peer Educator; and
·Advanced Diploma in Professional Writing.
The applicant received good reports on the whole from the various institutions in which he was incarcerated. He returned negative urine tests over several years.
While in prison, the applicant was afforded accompanied business leave and was reported to be courteous and polite. He engaged in the Work Ready Release Ready Program and also engaged with a number of community groups (including the Pioneers Association of SA). Before his release, he applied to volunteer with a number of community groups.
On 7 December 2018 the applicant’s non-parole period expired.
On 8 May 2019 applicant was released on parole, initially to reside at the Adelaide Pre-Release Centre. On 1 August 2019 he was permitted to reside with a cousin. He volunteered at the Pioneers Association of SA. In December 2019 he obtained employment by an exhibition builder. He also obtained employment by a company providing advocacy and assistance services to veterans and post-release prisoners.
On the night of 23 February 2020 the applicant went to a hotel and consumed alcohol for the first time since being released on parole in May 2019. He heard the sounds of a party, which was a fiftieth birthday party with a disc jockey, loud music, catering staff and over 150 guests. He entered the party to socialise but, after doing so, decided to commit theft. He stole three mobile phones and a credit card belonging to guests at the party. In the early morning, he was picked up from the party by two friends, one of whom used the stolen credit card to purchase goods to the value of $198. At about 1.45 am police stopped the vehicle, located the three mobile phones and credit card. Police later arrested the applicant. He remained in custody until he was sentenced.
On 3 August 2020 the applicant was sentenced by a Magistrate for three counts of theft and one count of being unlawfully on premises. The Magistrate adopted a starting point of six months imprisonment for the three thefts and 10 months imprisonment for being unlawfully on premises, which were made fully cumulative, and allowed discounts for early guilty pleas resulting in sentences of imprisonment totalling 10 months and one week backdated to commence on 24 February 2020 when the applicant was taken into custody. As required by section 47(5)(c) of the Act, the Magistrate did not set a non-parole period but referred that question to this Court as the Court that had sentenced the applicant in 2001. By reason of the sentence imposed, the applicant’s parole was automatically cancelled by operation of section 75 of the Correctional Services Act 1982 (SA).
On 16 October 2020 the applicant filed an application in this Court to fix a non-parole period. On 31 December 2020 the sentences imposed by the Magistrates Court expired without the question of fixing a non-parole period having been heard or determined by this Court.
On 9 February 2021 the Presiding Member of the Parole Board provided a report to this Court. It set out the history of the applicant’s offending, imprisonment and parole. It concluded that, on the one hand, the applicant has considerable support from members of the community who provided character references to the Board and has many positive supports and skills but, on the other hand, is still immature and makes poor decisions and this is an area in which he needs to seek professional assistance.
On 1 April 2021 the Department for Correctional Services provided a pre-sentence report in respect of the applicant. The applicant was interviewed on 1 April 2021 for the purpose of the report. The applicant said that he had not used alcohol or illicit substances since May 2019 other than on the evening of the offence. This was confirmed by regular testing undergone by the applicant over that period.
Relevant principles
Section 47 of the Act relevantly provides:
47—Duty of court to fix or extend non‑parole periods
(1)Subject to this section, when a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
(a)     if the person is not subject to an existing non‑parole period—fix a non‑parole period; or
(b)     if the person is subject to an existing non‑parole period—review the non‑parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or
…
(2)If the sentence of imprisonment is imposed for an offence committed during a period of release on parole or conditional release from a previous sentence of imprisonment or detention, the court, in fixing a non‑parole period under subsection (1)(a), must have regard to the total period of imprisonment (or detention and imprisonment) that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve.
(3)If a prisoner is serving a sentence of imprisonment but is not subject to an existing non‑parole period, the sentencing court may, subject to subsection (5), fix a non‑parole period, on application by the prisoner or the presiding member of the Parole Board.
…
(5)The above provisions are subject to the following qualifications:
…
(c)     if a person who is subject to a sentence of life imprisonment is further sentenced to imprisonment by the Magistrates Court or the Youth Court, the question of whether a non‑parole period should be fixed or extended must be referred to the court by which the sentence of life imprisonment was imposed;
…
(e)     a court may, by order, decline to fix a non‑parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of—
(i)the gravity of the offence or the circumstances surrounding the offence; or
(ii)the criminal record of the person; or
(iii)the behaviour of the person during any previous period of release on parole or conditional release; or
(iv)any other circumstance.
...
(9)In fixing or extending a non‑parole period, the court—
(a)     must, if the person in respect of whom the non‑parole period is to be fixed or extended is in prison or a training centre serving a sentence of imprisonment or detention, take into account the period already served; and
…
In the present case, section 47(5)(c) applied to require the Magistrates Court to refer the question of fixing a non-parole period to this Court and the Magistrate did so on 3 August 2020. However, on 31 December 2020 the sentences imposed by the Magistrates Court expired without the question having been heard or determined by this Court. It is not clear whether the combined operation of sections 47(1) and 47(5)(c) permits a court to fix a non-parole period in respect of a sentence of imprisonment which has expired by the time the non-parole period is fixed. However, if it does not, subsection 47(3) empowers this Court to fix a non-parole period in respect of the offence of murder and it is common ground that, whether the power to fix a non-parole period is derived from sections 47(1) and 47(5)(c) or from subsection 47(3), it is appropriate to fix a non-parole period with effect from 24 February 2020 taking into account both the original offending and the offending that triggered the cancellation of the original parole.
It is mandatory under subsection 47(2) to have regard to the total period of imprisonment that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve. In a case in which the balance of the previous sentence was imprisonment for life, the balance of the previous sentence will be the balance of the person’s life and the addition of the new sentence will not increase that balance. Subsection 47(2) is better adapted, and more applicable, to a case in which the previous and new sentences are for fixed terms than a case in which one of the sentences is for life. Nevertheless, it is mandatory to take into account the total period under that subsection in a case in which the previous sentence is life imprisonment.[1]
[1] R v Brady [2015] SASC 115, (2015) 123 SASR 294 at [9]-[10] per Vanstone J; R v Fricker [2017] SASC 107 at [23] per Peek J.
In R v Roberts[2] the Full Court said in relation to fixing a non-parole period under subsection 32(3) of the Criminal Law (Sentencing) Act 1988 (SA) (the equivalent of subsection 47(3) of the Act) where the terms of imprisonment were fixed terms:
[2] [2016] SASCFC 41, (2016) 125 SASR 40.
In Foley v Police, Kourakis J identified the relevant considerations in fixing a non-parole period for a term of imprisonment which includes a period of unexpired parole as:
·The prospects of rehabilitation on parole.
·The gravity of the offences on which the offender was imprisoned and then paroled.
·The gravity of the breaching offences on which the offender was imprisoned or the breach of the designated condition.
·The need to deter the offender and others from commission of offences of the type with respect to which he was on parole and offences of the type that breached that parole, or the need to deter the offender and others from breaching a designated condition.
·The need to deter the offender and others from breaching parole.
In R v Earley, Stanley J addressed the considerations relevant to fixing a new non-parole period pursuant to s 32(3). Stanley J said:
In considering the appropriate length of a non-parole period to be imposed, a number of matters are to be taken into account. The non-parole period fixed should continue to reflect the degree of criminality involved in the offending for which the sentence of imprisonment was initially imposed. This process involves an assessment of the amount of time which the prisoner must spend in prison in order to satisfy the punitive, deterrent and preventive purposes of punishment. Other relevant considerations include:
•      the gravity and circumstances of the original offence;
•      the nature, circumstances and seriousness of the breach or breaches of parole;
•      the protection of the community from violence at the hands of the applicant;
•      the likely future response to supervision and whether the applicant is a good candidate for parole;
•      the desirability of the applicant undertaking treatment if released;
•      the sentencing standards that are applicable at the time of the cancellation of the parole; and
•      all the considerations relevant to the fixing of a head sentence, although with greater weight given to rehabilitation.
These authorities demonstrate that, subject to one additional factor, the principles applicable to fixing a non-parole period as part of the exercise of the sentencing discretion in imposing an original sentence apply also to the exercise of the sentencing discretion in fixing a new non-parole period pursuant to s 32(3) after cancellation of a prisoner’s parole as a result of a breach of parole. The additional factor is that, in fixing a new non-parole period in these circumstances, it is necessary that the court also have regard to the gravity of the breaching conduct that has resulted in the cancellation of the parole.
…
… The gravity of the breaching offence may inform both the need for deterrence and the prospect of rehabilitation in fixing a new non-parole period. At least two factors affecting the fixing of the non-parole period when parole has been breached suggest that it will be a higher proportion of the head sentence in those cases than otherwise. First, the breach itself will usually reflect adversely on the prospects of rehabilitation. Secondly, the sentencing court must have regard to the need to deter parolees from breaching their parole. However, these considerations are merely factors that must be weighed in the balance in the exercise of the sentencing discretion.[3]
[3]    At [23]-[25], [27] per Kourakis CJ, Blue and Stanley JJ. (Footnotes omitted)
In R v Fricker,[4] in the context of fixing a non-parole period under subsection 32(3) of the Criminal Law (Sentencing) Act 1988 (SA) where the term of imprisonment was life imprisonment for murder, Peek J identified circumstances relevant to the length of the non-parole period to be fixed in that case in terms which can be generalised (where the previous offence is murder) as follows:
[4] [2017] SASC 107 at [49].
·the circumstances and seriousness of the original offence of murder, and the antecedents of the applicant as at that time;
·the protection of the community from violence at the hands of the applicant;
·the time which the applicant has spent in custody serving the life sentence, and the balance of the life sentence to be served;
·the applicant’s offending committed while in custody (if applicable) and on parole, not only insofar as it reflects badly on the applicant but also insofar as it tends to demonstrate an improvement in refraining from resorting to violence;
·the circumstances and seriousness of the applicant’s offending (or other breach) that led to the cancellation of parole;
·the need to deter the applicant and others from breaching parole;
·any substance abuse problems, and the causal connection between them and the parole breach;
·the applicant’s work ethic and employment prospects;
·the support mechanisms available to the applicant; and
·the applicant’s general suitability for parole and prospects for rehabilitation.
Submissions
It is common ground that it is appropriate to fix a new non-parole period in this case. It is also common ground that the non-parole period should be fixed to commence on 24 February 2020 (when the applicant was taken into custody) and should be fixed in respect of both the previous sentence for murder and the recent sentence imposed by the Magistrate.
It is common ground that, while it will be a matter for the exercise of the Parole Board’s discretion, it is likely that, if a non-parole period is set and when it expires, the Parole Board will require that the applicant has undertaken a further program or programs in custody before release on parole. For example, the Parole Board could require the applicant to undertake again the Violence Prevention Program. It is common ground that the processing of applications for parole was slowed down as a result of the COVID-19 epidemic. The conduct of programs in custody was also slowed down, and preference for such programs tends to be given to prisoners subject of a non-parole period and whose eligibility for parole is relatively imminent. Accordingly, it is unlikely that the applicant will be released on parole on expiry of the non-parole period fixed and likely that there will be a significant delay before any release on parole after that expiry.

The applicant is now aged 55. His cousin, family and friends remain willing to support him in the community. Favourable references were provided by a director of the company that employed him as an exhibition builder, the former President of and two volunteers at the Pioneers Association, a person associated with a college and the applicant’s sister.
The applicant submits that it would be appropriate to fix a non-parole period that would expire imminently. The Director accepts that this would be an appropriate approach.
Fixing non-parole period
I take into account the mandatory considerations of the balance of the applicant’s original sentence (balance of his life), the sentence for the recent offending (10 months and one week) and the period of imprisonment already served by the applicant (in excess of 20 years as at 24 February 2020). I also take into account the other considerations referred to at [18] and [19].
I fix a non-parole period that takes into account both the sentence of life imprisonment and the sentence imposed by the Magistrate in August 2020 on the basis that the non-parole period will be treated as having commenced on 24 February 2020.
I take into account personal and general deterrence, that is the need to fix a non-parole period that will deter the applicant and others from breaching parole. I take into account the seriousness and circumstances of the murder the subject of the original non-parole period. Although significant offending, I take into account the fact that the February 2020 offending did not involve any violence and was of a different order of magnitude to the offending the subject of the original non-parole period. I take into account the applicant’s conduct while in prison, including the many programs he undertook and educational qualifications he obtained. I take into account the applicant’s strong work ethic as displayed by his employment obtained after his release on parole, his prospects of obtaining future employment, his volunteer work and the favourable references he obtained. I take into account the applicant’s support in the community, his general suitability for parole and his prospects of rehabilitation. I note that his prospects of rehabilitation will be taken into account specifically by the Parole Board before making any decision on release on parole.
In all the circumstances, I fix a non-parole period of 18 months, backdated to commence on 24 February 2020.