James George Beauregard-Smith is a convicted Australian rapist and murderer, serving a life prison sentence.

On 16 March 1978, the Supreme Court jury found Beauregard-Smith guilty of murdering nine-year old Craig Alan Holland. Beauregard-Smith was having an affair with Sandra Holland, Craig Holland's mother, for several months before the murder.

The bodies of Sandra Holland and her eldest son, Scott, were found by police under trees and branches in Woodside. Craig Holland was found buried under the floorboards of the family home.

On 10 November 1992, Beauregard-Smith was sentenced to twelve months imprisonment for escaping custody.

On 8 April 1994, one week after his release from prison on parole, he raped a girl at Cudlee Creek in South Australia. On 15 November 1994 Beauregard-Smith was convicted of the rape and was sentenced to twelve years imprisonment, later reduced to eight years on appeal.

'He's in jail, he belongs there'

By Andrew Dowdell - The Advertiser

June 8, 2009

Psychopathic triple-murderer and rapist James George Beauregard-Smith has "zero chance" of being released on parole, Premier Mike Rann has assured the family of his victims.

Beauregard-Smith, 66, was convicted of strangling Sandra Holland and drowning her sons Craig, 9, and Scott, 11, in 1977, and later diagnosed by forensic psychologists as a psychopath. He was released on parole in April, 1994, but raped a 21-year-old woman eight days later and has been in custody ever since.

Mr Rann yesterday told The Advertiser prison would remain home to Beauregard- Smith even after he becomes eligible for parole on November 25.

"Beauregard-Smith would have zero chance of getting my signature on his release. He is where he belongs. In jail. Where he'll stay," Mr Rann said.

Mr Rann said he had faith the state's Parole Board would not approve the release of the triple-murderer but said if it did, he would veto the decision.

A relative of Mrs Holland yesterday sent a detailed letter to The Advertiser as well as to Mr Rann, Parole Board chief Frances Nelson QC and Director of Public Prosecutions Stephen Pallaras, QC, demanding Beauregard-Smith never be released.

"As he has threatened my life, I have changed my name, moved house a number of times, have silent phone numbers and special considerations on the electoral roll, all of this to safeguard me and my family," the letter says.

"I am still terrified of this person as he is a diagnosed psychopath and will definitely harm or kill someone else once he is released from gaol."

Beauregard-Smith knocked Mrs Holland, 32, unconscious on July 13, 1977, then strangled her when she told him she wanted to end an affair and return to her husband.

He then chased Ms Holland's son, Craig, into a bathroom where the boy's brother, Scott, was having a bath, and drowned both boys. In 2000, forensic psychiatrist Ken O'Brien stated that unless there was "meaningful intervention . . .", Beauregard-Smith would remain a danger to the community, particularly to women.

"Beauregard-Smith would have zero chance of getting my signature on his release. He is where he belongs. In jail. Where he'll stay.

R v BEAUREGARD-SMITH No. SCCRM-98-213 [2000] SASC 220 (6 July 2000)

Court

SUPREME COURT OF SOUTH AUSTRALIA

Judgment of the Honourable Justice Wicks

Hearing

22/02/2000, 17/03/2000, 31/03/2000.

Catchwords

APPLICATION TO FIX A NON-PAROLE PERIOD -- Applicant convicted of one count of murder in 1978 - at time of sentencing no provision in law for fixing of non-parole period - subsequent order made by the Court in 1989 where a non-parole period was fixed at 22 years to run from the date applicant was first taken into custody - applicant released on parole in 1994 - a week or so later after release on parole the applicant re-offended - later convicted of one count of rape and two counts of indecent assault - further application to this Court to fix a non-parole period - consideration of purpose of non-parole period - consideration of factors relevant to whether a non-parole period should be fixed and the appropriate length of that non-parole period.

Materials Considered

• Criminal Law (Sentencing) Act 1988 s 32;

• Correctional Services Act 1982 s 67, s 75, referred to.

• R v Miller (Unreported) Doyle CJ Jt No [2000] SASC 16;

• Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, applied.

• Veen v The Queen (No 2) [1988] HCA 14; (1987-1988) 164 CLR 465;

• R v Stewart (1984) 35 SASR 477;

• The Queen v Bugmy (1990) 167 CLR 525;

• The Queen v Shrestha [1991] HCA 26; (1991) 173 CLR 48;

• The Queen v von Einem (1985) 38 SASR 207;

• R v Bednikov (2997) 193 LSJS 264, considered.

Representation

Applicant JAMES GEORGE BEAUREGARD-SMITH:
Counsel: MR N M VADASZ - Solicitors: NICHOLAS VADASZ

Respondent R:
Counsel: MR S K MCEWEN - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

SCCRM-98-213

Judgment No. [2000] SASC 220

6 July 2000

(Criminal: Application)

Criminal

Preliminary

1. WICKS J This is an application by James George Beauregard-Smith ("the applicant") pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 for an order fixing a non-parole period in respect of a life sentence for murder imposed by a Judge of this Court and a sentence of twelve years' imprisonment for rape imposed by this Court reduced by the Court of Criminal Appeal to eight years in February 1995, following an appeal against sentence.

Murder Conviction

2. On 16 March 1978 the applicant was convicted by a jury of murdering Craig Alan Holland, a child of the age of nine years on or about 13 July 1977. The trial Judge sentenced the applicant to imprisonment for life.

3. It appears that at the same time and as part of the one incident the applicant murdered two other victims, the boy's mother, Sandra Holland and his brother, Thomas Scott Holland.

4. The applicant had an affair with Mrs Holland for some months prior to her murder but apparently on the day thereof, she told him that she did not want to see him again and was returning to her husband. The applicant struck her in the course of an argument. She fell and became unconscious. He then strangled her. Her son, Craig, ran into the room. The applicant took him back to the bathroom where he and his brother Scott were having a bath. He drowned both of the boys in the bath.

5. The bodies of Mrs Holland and Scott Holland were found buried under leaves and branches at Woodside and the body of Craig Holland was found under the floorboards of the family home.

6. The crimes were not premeditated in the sense that the applicant went to the house with the intention of killing the victims but it is clear that he subsequently formed an intention to kill them. It appears that throughout the trial the applicant denied the offences charged but later admitted the murder of all three victims.

7. On 10 November 1992, the applicant was convicted and sentenced to imprisonment for one year for escaping from custody.

8. At the time of the conviction, the law did not provide for the fixing of a non-parole period and no non-parole period was fixed in this case.

9. On 15 September 1989, an order was made by the Supreme Court fixing a non-parole period. Such period was fixed at 22 years to run from 16 July 1977, the date the applicant was first taken into custody.

10. On 6 May 1993, the applicant was released on Home Detention until his release on parole.

11. The applicant was released on parole on 1 April 1994 having had the benefit of various remissions for good behaviour while in prison. The parole period was fixed at ten years to expire on 31 March 2004, a period recommended to the Governor pursuant to the previous s 66(3) of the Correctional Services Act 1982.

Previous Convictions

12. Prior to the applicant's conviction of murder he had a number of convictions, mainly for offences of dishonesty, but most of them antedated by a long period the crime of murder referred to earlier in these reasons.

Rape Conviction

13. On 15 November 1994 the applicant was convicted of one count of rape and two counts of indecent assault. The offences occurred at Cuddly Creek on 8 April 1994, a week or so after the applicant's release on parole.

14. In sentencing in relation to the charges for rape and indecent assault, the learned sentencing Judge said that the applicant took the victim to a remote area and subjected her to a series of violent acts. The learned sentencing Judge said to the applicant:

"Quite obviously your acts were premeditated. Your conduct shows you are a man capable of violent acts. The agony and trauma which the young lady has suffered was apparent over the long period in which she gave her evidence. It is quite impossible to assess the harm which your atrocious actions have caused."

15. On 25 November 1994, the applicant was sentenced on the count of rape to a head sentence of twelve years' imprisonment. On the counts of indecent assault, he was convicted without penalty. On appeal, the sentence in respect of the conviction for rape was reduced to eight years. As a life sentence for murder was involved, the District Court Judge who imposed a sentence in respect of the convictions for rape and indecent assault declined to set a non-parole period in respect of those offences leaving the matter to this Court to fix.

Application to set a non-parole period

16. Section 75 of the Correctional Services Act 1982 operates to cancel the parole in respect of the life sentence for murder as from the imposition of a sentence for the offences of rape and indecent assault. As there is now no non-parole period in force, the applicant makes application under s 32(3) of the Criminal Law (Sentencing) Act for a non-parole period to be fixed. Subsections 32(3) and (5) are in the following terms:

"(3) Where 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 ..."

17. Subsection (5) is also relevant to this matter. It is in the following terms:

"(5) The above provisions are subject to the following qualifications:

(a) - (b) ...

(c) 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

(iv) any other circumstance."

18. In subs (10) "the sentencing court" is defined to mean that where the prisoner is subject to a number of sentences of imprisonment imposed by courts of different jurisdiction, the court of the highest jurisdiction is the sentencing court.

Psychiatric and psychological reports

19. The Court received in evidence reports dated respectively 23 November 1998 and 8 January 1999 prepared by Dr K P O'Brien, a consultant psychiatrist and heard evidence from Dr O'Brien in relation to his reports.

20. In the report of 23 November 1998, Dr O'Brien said:

"Mr Beauregard-Smith does not suffer from any form of active mental illness in the form of a psychosis (a break with reality) or of thought disorder. He does not suffer from a clinical depression, an abnormal level of anxiety or any obvious cognitive impairment. It is likely that he suffers from a personality disorder and, essentially, this diagnosis is made on his longitudinal record and his apparent inability (like many prisoners) to benefit and profit from the experience of incarceration ... It would appear that themes relating to control and early gratification of his needs, particularly sexual, dominated at the time of his previous release and may be important factors to be still taken into account by reviewing authorities ..."

21. Dr O'Brien continued his report as follows:

"Mr Beauregard-Smith continues to be a rather enigmatic man. As always, he presents quite favourably and to the best of my knowledge his institutional record is again exemplary. In contrast, his criminal record is disturbing and suggests a propensity to engage in sudden and significantly aggressive acts of, although not exclusively, a sexual nature. He does not suffer from a form of formal mental illness but it is very probable, on the basis of his life history, that he suffers from a personality disorder with significant anti-social features. He may well warrant a diagnosis of anti-social personality disorder or even that of a psychopath or sexual psychopath."

22. Dr O'Brien said, however, that he would be somewhat loathe to confirm a diagnosis of psychopath or sexual psychopath (with all its implications) without recent and thorough psychological testing. He continued:

"The results of such testing, in conjunction with clinical psychiatric review, may well give some more firm pointers about this man's real personality and, by implication, the risks attached should he be released. I would be prepared to re-evaluate him again once such testing has been concluded and the results available."

23. Psychological testing was subsequently undertaken by Mr John Bell, a senior clinical psychologist of the South Australian Forensic Health Service. Mr Bell pointed out that, "an implication of the diagnosis of psychopathy is that few intervention techniques have claimed great success in promoting significant therapeutic change in such individuals." Mr Bell said that he was unaware of any such intervention being available in this state.

24. The second implication to which Mr Bell referred was that Mr Beauregard-Smith would require intensive one-to-one intervention should appropriate interventions become available rather than using groups. He said:

"There would be a requirement to intensively and comprehensively assess him in advance of this, with the requirement of review and outcome data being monitored. The implications of other profile scores, specifically the strong tendency to create a positive impression of himself, may lead to any such evaluation being invalid and in order for that this[sic] not to be the case, would require Mr Beauregard-Smith to change the habitual style which has been present since early childhood."

25. Mr Bell concluded his report as follows:

"With the same consideration in mind any consideration for future parole conditions, which I respectfully recommend should not be considered until any such consistent rehabilitative change has been effected, should be strictly supervised with collateral confirmation being required for any statements that Mr Beauregard-Smith makes with regard to important factors such as his employment standing, relationship formation, friendship groups, accommodation and activities."

26. In his subsequent report dated 8 January 1999, Dr O'Brien discussed certain aspects of Mr Bell's report. He pointed out that Mr Bell had, as part of his assessment, used widely accepted and standardised measurements of personality. He said:

"The obtaining and interpretation of collateral information is an important part of the process in conducting ... [an assessment of personality]."

27. He continued:

"As Mr Bell has indicated, Mr Beauregard-Smith obtained a score which is above the cut-off level for the diagnosis of psychopathy. In other words as a result of testing data, the diagnosis of Psychopathy is confirmed."

28. In his report of 8 January 1999, under the heading "Discussion" Dr O'Brien said:

"Given Mr Beauregard-Smith's previous criminal history and anti-social behaviour, together with his most recent conviction (which he denies) and coupled with the results of psychological testing, the diagnosis of psychopathy, with all its implications is, in my view, established."

29. On page four of his report, Dr O'Brien continued:

"Notwithstanding any improvement that may have been made in more recent years, it is my view that at least some of the characteristics of psychopathy still remain relatively unaltered. He [Mr Beauregard-Smith] will remain at risk, therefore, at some level to the community, notwithstanding his protestations to the contrary. Unfortunately, given the nature of psychopathy there is little reassuring information either in clinical practice or the literature that psychiatric/psychological intervention will materially alter that situation. There is a body of professional opinion that believes that with the passage of time, and with age, a degree of maturation (and implied stability) accrues. Given the fact that Mr Beauregard-Smith re-offended shortly after returning into the community after many years in gaol, it is difficult to escape the conclusion that he did not particularly profit from that experience."

30. A report dated 12 November 1999 from Dr Bruce Westmore, a forensic psychiatrist who practices in Sydney was also admitted in evidence.

31. Dr Westmore thought that the most reliable provisional diagnosis which could be offered about Mr Beauregard-Smith was that he suffers a severe personality disorder of an anti-social type.

32. Dr Westmore said:

"The age of this man, his recent offence, the duration over which he has offended and the nature and severity of his previous offences, particularly the homicides, are all factors which I believe indicate that Mr Beauregard-Smith represents an ongoing risk to the community at worst and at best, an unknown risk to the community. Precisely where he is on this spectrum cannot be answered in my view, principally because he has not had access to the necessary psychiatric and psychological treatments and assessments to understand his complex psychology more comprehensively. Until that is done he remains as Dr O'Brien reports in November 1998, 'a rather enigmatic man.' Risks to the community cannot be excluded at this time although I would agree with the opinions expressed by Dr O'Brien, Mr Bell and the Parole Board that if he is to be released, he requires a trial of psychological and psychiatric assessments and therapy, this to enable the mental health professionals to reach a definitive diagnosis about him and to see what impact treatment might have on him.

I would not recommend that Mr Beauregard-Smith be released on parole at this time unless it is correct that there are back up legal mechanisms available to for example the Parole Board, to continue his detention should it become apparent after appropriate assessments and therapy that he remain a continuing and possibly long term risk to the community. Mr Beauregard-Smith may have to accept that the final psychiatric recommendation is that he never be released, this if it is felt he represents an unacceptable risk to the community. If such back up mechanisms are available however then I would recommend that he be considered for a non-parole period. This will enable him to move to an environment where I understand he might be more able to access appropriate ongoing assessments. I am also quite uncertain how any internal psychological changes which may occur in this man are going to be reliably assessed. It is unlikely significant clinical changes will be seen. Psychological tests may be useful as part of this longitudinal assessment. Because of the very serious nature of his previous behaviours, the uncertainty about his current psychological condition and the equal uncertainty about what ongoing risk he poses to the community, I would recommend that such assessments and treatments remain in place for at least two years and possibly longer. It is difficult to be more precise about the time required for this assessment to be completed as much will depend on how often he can be seen by therapists, what treatment services and facilities are offered to him in a general sense and what progress if any he makes during the course of those treatments."

Dr O'Brien's evidence

33. Dr O'Brien gave evidence. In the course of cross-examination by counsel for the applicant, it was suggested that the type of personality disorder which the applicant has may be amenable to therapeutic intervention. Dr O'Brien replied that if one scans the world literature on intervention or therapy in respect of personality disorders, it is not very reassuring. Dr O'Brien was asked what intervention there had been in recent years to see what could be done for the applicant. He indicated that to his knowledge what had been made available to the applicant by the Correctional Services Department had been courses dealing with, for example, anger management and victim awareness. Apart from that, the applicant has been employed in and around the gaol on various trades such as kitchen, painting, laundry, boot-shop etc. Dr O'Brien said that no matter how valuable the anger management course, the victim awareness course and placements in industrial therapy have been, they did not go to the heart of the matter which is a deficit in the applicant's personality which has constantly got him into strife over an extended period of time. Dr O'Brien said that unless there is meaningful intervention in that area and the change can be validated, nothing really will change.

34. It was put to Dr O'Brien that there were a large number of prisoners who would have been diagnosed as suffering from personality disorders. In response he pointed out that that is so but that it is not unique to South Australia. That is the position in almost every British prison system. He said the difficulties about providing programmes for persons with personality disorders are as much to do with the science and the validation of any intervention as with resources. He said that 90 percent of people in a conventional gaol would probably attract a diagnosis of a personality disorder of one kind or another. He said that to accommodate these people would be to effect a significant and major shift in institutional thinking and programmes, strongly supported by government, to try and experiment with intervention which may or may not in time be successful. He said it would be an extraordinarily costly programme but that personally he would strongly welcome a willingness to experiment with the setting up of trial programmes of such a nature. Unfortunately, to date, such programmes do not exist, even at a trial level.

35. Dr O'Brien said there had been discussions about the topic and he has been a member of two committees set up over the last 12 years to deal with the problems. These committees were looking at setting up special care units or behavioural units to deal with specific individuals whether individuals with a significant sexual problem or anger problem or drug problem. Those efforts to date have not achieved any finality in terms of dedicated programmes being set up. Dr O'Brien said that he was not talking about victim awareness courses or anger management courses but specific programmes perhaps in a dedicated part of the prison that would be run for such purposes. He referred to the kind of therapeutic community where you would, perhaps, hand-pick a number of prisoners and where one would train up correctional staff and use, most likely, institutional psychologists to run such programmes. He said that he was not aware of any plans in this regard.

36. Dr O'Brien agreed that at the very least there should be a pre-release programme implemented with respect to the applicant. That programme would be in anticipation that the applicant would be released back into the community. Such a programme does not exist at the present time. He said that the programme that he would have in mind would firstly be to seek from the Department of Correctional Services whether they are prepared to fund and support a number of professionals who have the requisite training and experience to conduct daily assessments and interventions on somebody like the applicant. He said that in designing such a programme they would need to have regard to the views of experts and colleagues interstate and around the world. They would have to be conversant with world literature and what may or may not work. Clearly, there would be resource implications. Such a programme would be experimental by nature and would need to be trialled with agreed measurements.

37. Dr O'Brien agreed that the role of mainstream medicine and psychiatry in the management of personality disorders is limited. He said that it would be a grave mistake to medicalise the concept of personality disorder and suggest that it is the prerogative of the medical profession to have some form of intervention established. He said that that was society's problem and that it had to be addressed by society in terms of what do you do with personality disordered people in prison at the end of their sentence. Do you keep them in or do you let them out? He said that that was what the Parole Board is all about.

38. Dr O'Brien gave evidence regarding anti-social personality disorders as follows:

"Q You referred to a general view that anti-social personality disorders tend to decline or reduce with age. Is that an appropriate way of putting it.

A I said that there was a view that with the passage of time and aging the phenomenon of burnout has been described, but I then gave some - expressed some reservations about accepting that totally.

Q It does not apply in every case.

A No but it does exist as a view.

Q As a general view, people with anti-social personality disorders soften and change with time.

A There is a view that some do.

Q You are not saying that Mr Beauregard-Smith does not fall into that category, are you.

A I really cannot make a comment. I don't know if he falls into that category or not. All I know is that after many years in gaol, he re-offended as soon as the shackles of supervision were lessened, and that does not give me a great deal of confidence.

Q Again, in circumstances where the assistance that I think you and others determined he required just simply was not provided.

A It wasn't provided, but one doesn't know that, even if it was provided, whether that would have been sufficient to render him more safe to the community. That is an unanswerable question at the present time."

39. Dr O'Brien was then asked some further questions about pre-release programmes that could be put in place at the present time. He said that at the simple level there would have to be programmes dealing with anger-management, victim awareness and victim empathy. All of these programmes would have to be undertaken again. If he were managing these programmes, Dr O'Brien indicated that he would want to know who were actually conducting the courses and what level of training and experience and supervision such persons may have had. He would then, with experienced forensic colleagues, both in psychology and psychiatry look for what seemed to be the best evidence available world-wide for meaningful interventions. Funding from government would be needed. Such courses could not be funded from the present budget of the Department of Corrective Services. There would be a problem of moving prisoners to an institution where the appropriate courses are being conducted.

40. Dr O'Brien was then asked about post-release programmes. He said that he thought these programmes were predicated under pre-release programmes and their efficacy. He would not even contemplate post-release programmes until he had all the evidence that the pre-release programmes had actually done something worthwhile. In the case of post-release programmes there would have to be very tight supervision because the external structure that exists in a gaol would then be gone. He continued:

"... what we know about Mr Beauregard-Smith is that he does very well in gaol, so you really can't make any reliable predictions about Mr Beauregard-Smith on his gaol experience because it is uniformly good. It is on the outside that Mr Beauregard-Smith is the problem, it is not in gaol, and that's the difficulty with predictions."

Other Witnesses

41. Mr Vadasz, as counsel appearing for the applicant called Mr A W Patterson, a former manager of the Mobilong Gaol to give evidence. Mr Patterson spoke of the applicant's good conduct while in prison in that gaol. He was much older than the average prisoner and from his age he was able to exert considerable influence for the good amongst the inmates of the gaol.

42. The next witness called by Mr Vadasz was Mr G S Glanville. Mr Glanville first met the applicant in or about 1988 at a time when he, Mr Glanville, was secretary of the Corrective Services Advisory Council and it was through that body that he came to meet the applicant. Corrective Services Advisory Council was a charitable organisation.

43. In or about 1992 the applicant came to occupy the pre-release centre at Northfield known as "The Cottages". Whilst at that centre, the applicant was allowed out into the community on day release.

44. Whilst living at "The Cottages", the applicant caught a bus to the city and attended at the office of the Offenders Aid Rehabilitation Service located in Halifax Street, Adelaide. At that stage, he was on day-release and free to take suitable employment. These arrangements commenced in the early part of 1993. In that time, the applicant spent time with Mr Glanville. They talked about the things needed to be done to learn to fit back into society. Subsequently, he was given a job of being an assistant on a delivery van engaged in collecting donated goods and delivering beds and other property to people in need. None of this work was supervised by any prison officer.

45. On 6 May 1993, the applicant was released on Home Detention and at that time resided on a full-time basis with his then wife. This time, Mr Glanville said that he had some contact with the applicant but not a great deal.

46. Subsequently, the applicant left the Offenders Aid and Rehabilitation Service and obtained a full-time paid position with St Vincent de Paul. In that employment, he was not supervised by any Correctional Services Officer.

47. The next witness called by Mr Vadasz was Ms J A Townsend, a social worker employed by the Department of Correctional Services. Ms Townsend had the management of Mr Beauregard-Smith's file while in Yatala Labor Prison and also while he was an occupant of "The Cottages" at Northfield.

48. When asked what treatment had been made available to the applicant at the time of his release on Home Detention in May 1993, Ms Townsend replied that she did not believe that any treatment was provided in the period from May 1993 to the applicant's arrest in April 1994. Since his sentencing in 1994, the applicant has participated in the anger-management programme, the domestic violence programme and the victim awareness programme. In fact there are six core programmes including drug and alcohol, cognitive skills and literacy and numeracy in addition to the ones Ms Townsend had already referred to. The applicant has been a willing participant in the programmes which he attended. In addition, there is an on-going programme dealing primarily with social skills. The applicant has participated in this programme as well.

49. Ms Townsend was asked whether the emphasis changed in circumstances where a person serving a life sentence does not have a non-parole period as opposed to someone who has a release date which the Correctional Services Department can work to. Her answer was that with release programmes, people are unable to obtain a low security classification if they do not have a non-parole period set so they are unable to go to a low security prison such as Cadell or "The Cottages". She was further asked whether there was a designated programme through the prison system starting with a higher security classification and moving along. Her explanation was that with people who have obtained a non-parole period there is a plan which the Prisoner Assessment Committee will develop in relation to the amount of time a person is to spend at a particular prison or pre-release centre.

50. Ms Townsend said that as the applicant did not have a sentence plan. The applicant is to remain in Mobilong Prison so long as no non-parole period has been set.

51. Ms Townsend said that favourable comments had been received in relation to the applicant's work with the minimum of personal supervision in the kitchen, the bakehouse, the boot-shop, the brickyard, the gardens, the clothing store and numerous other areas.

52. Ms Townsend then gave the following evidence:

"Q Given your involvement with Mr Beauregard-Smith and your knowledge of the system at Mobilong, are you able to say whether or not there is any scope for further development, useful scope for further development, personal development, for Mr Beauregard-Smith within Mobilong.

A We have, apart from offering him a psychiatrist and psychologist, not a lot of further personal development in the medium security prison.

Q As his social worker would you like to see the implementation of a sentencing plan.

A Yes - to a low security prison.

Q Yes.

A Yes.

Q Do you think his own development would benefit from a sentence plan.

A In relation to re-socialisation, yes, I do believe so.

Q Do you think he would respond to that kind of development.

A I believe so."

53. In cross-examination by counsel for the Director of Public Prosecutions, the following exchange occurred:

"Q Do I understand you correctly that the only way a prisoner can get into the pre-release centre is to have a non-parole period set.

A That's right.

Q It's for the last 12 months of their sentence that they're eligible for pre-release centre.

A Technically, yes.

Q It can be stretched a bit, I understand that.

A Yes.

Q Without having a non-parole period set, they cannot be considered for pre-release centre.

A That's right."

54. The next witness called by Mr Vadasz was Ms Jeannette Padman, the Senior Social Worker at Mobilong Prison. One of Ms Padman's duties is to run programmes of various kinds including drug and alcohol programmes, a victim awareness programme, an anger management programme and a domestic violence programme. Ms Padman said that she will run a one-to-one programme with persons who are not suitable to take part in group programmes. However, the programmes generally run in groups. They range approximately in attendance from about 3 to about 15 persons. These programmes follow a fixed curriculum but changes are made from time to time.

55. A number of programmes had been conducted in relation to the applicant, but they were conducted on a group rather than on a one-to-one basis.

56. It was put to Ms Padman that as things now stand it is the case that the applicant cannot progress out of medium security. She agreed that that was so and that without a non parole period, for security reasons, it would be very foolish to put a person into lower security if such person were not to have the benefit of a release date. Such a thing does not happen. Ms Padman was asked whether that meant that some re-socialisation programmes are just simply not made available to the applicant at this stage. She replied that it was very difficult to re-socialise somebody "when you haven't got an outside". She said that they had no facility to actually take somebody outside the prison and that the prison was neither designed nor staffed for that.

57. In the course of Ms Padman's evidence, the following exchange with counsel occurred:

"Q As the manager of the intervention team and senior social worker, if Mr Beauregard-Smith were to be able to progress, in other words if he was given a non parole period, would you be involved in the planning of further rehabilitative programmes for him.

A. I would be involved, but the Prisoner Assessment Committee would be more involved. They are a team that specialises in looking at a whole range of things for rehabilitation. Q What sort of people sit on the prisoner assessment team. A. The people who actually look at it well before it even goes, before all the paper work that is done; senior assessment social workers and psychologists within the Department. People who sit on the team they range from a representative from Community Corrections, a representative from the Aboriginal community, a representative from the prison system, representatives from victims' awareness area, victims of crime, the police, it is a whole range of people who sit on the Prisoner Assessment Committee and they are under the Minister so they are not directly responsible to the prison system so they have greater powers."

58. In cross examination of Ms Padman, the following exchange occurred:

"Q But do I understand you to say that there is an obstacle to completing a re-socialisation programme in that one cannot go into low security until one has a release date set.

A That's correct. It would be very foolish of the prison system to put a person into low security unless they have a release date set because they are a security risk, and there are many people that get caught in this area. I mean people without a bottom, as we call it, are one of the ones but also a person who is required for deportation is another one, it would be very silly to put them into low security. Q By people without a bottom you mean people with no - A No non-parole period. Q That obstacle, that they can't go into low security until they have a non parole period set, I want to ask you whether you know whether that is a matter of law, or regulation, or policy, or practice. A At the present time it is policy because we have had some problems which have reverberated, unfortunately, on a whole lot of things. It is not law, no. Q So, in effect, and I don't suggest it is you personally saying this but on behalf of the departmentalises, you are really advising the Court that the situation amounts to this: until His Honour gives this man a non parole period there is a limited amount of rehabilitation that the Department can do. A That is correct. The rehabilitation too also depends on his ability to actually access the very lower security areas. Now that can be also his behaviour in prison; if a person is escaping on a regular basis, his ability to access lower security would be minimised. So there are some other factors as well but that particular factor is an overriding one, no way would he be moving anywhere except medium security.

59. It was put to Ms Padman that Dr O'Brien says that in terms of assessing the benefit of programmes for the applicant's behaviour, assessing them in gaol is one thing, assessing and prognosticating about his behaviour out of gaol is another. Ms Padman responded by saying that inside prison is a totally different world than outside prison. With a long rehabilitation programme it is possible to have some idea, in low security, of what a person's behaviour would be on the outside. I acknowledge that there is a different world outside prison and many people have problems with outside that do not occur inside prison.

60. In re-examination Mr Vadasz enquired whether with the exception of one or two programmes recently devised by Mr Kernot, a prison psychologist, that the applicant had exhausted the current rehabilitative programmes available to him. Ms Padman responded by saying that there are individual one-to-one programmes that could be conducted by a general psychologist within the area. Many of the forensic psychologists within the prison system have worked extensively with people who have personality disorders. She said, that if Mr O'Brien (the consultant psychiatrist referred to earlier in these reasons) wants an extensive programme that he thinks is better for personality disorder to change behaviour, such a programme could be started at Mobilong Gaol and continued over the system with the psychologists that are available. Ms Padman said that they had not done that because there had been no indication that the applicant was going to be released from gaol. She said that they were waiting for some direction and that was the fixing of a non parole period.

61. I accept the evidence of Dr O'Brien and the other witnesses to whom I have referred.

Release into the community

62. The setting of a non-parole period is the first step in the process which leads to the eventual release of a prisoner into the community. Whether or not a non-parole period is set is a matter of discretion on the part of the judge concerned. He or she does not have to fix a period although there is nothing to stop an applicant from making application from time to time. Once a non-parole period is fixed, a prisoner may make application to the Parole Board for release on parole: s 67(1) of the Correctional Services Act 1982. The application for release on parole cannot be made more than six months before the expiration of the non-parole period fixed in respect of the prisoner's sentence: s 67(3). The application is given detailed consideration having regard to various criteria set out in s 67. The Parole Board is given a discretion as to the recommending of release: s 67(6). Release on parole only occurs when it is recommended by the Parole Board and approved by the Governor. The governor would act on the advice of the Executive Council in the matter - in effect the advice of Cabinet.

63. The point is to be made that release on parole does not rest entirely with a judge in fixing a non-parole period; the Parole Board and the government of the day both have an important role to play in the matter. The Parole Board has an independent role to recommend parole although it is required to have regard to any relevant remarks made by the Court in passing sentence.

Non-parole period - general principles

64. A sentence must be appropriate and proportionate to the crime in question. Preventive detention, as such, has no part to play in our system - so as to lead to the imposition of a sentence beyond what is appropriate to the crime - merely in an attempt to protect society. On the other hand, the Criminal Law (Sentencing) Act clearly requires the protection of society to be taken into account in arriving at a sentencing package which is appropriate to the criminality involved: Veen v The Queen (No 2) [1988] HCA 14; (1987-1988) 164 CLR 465 at 472 per Mason CJ and Brennan, Dawson and Toohey JJ.

65. In R v Stewart (1984) 35 SASR 477, King CJ set out a number of matters which are relevant to the fixing of a non-parole period. He said, at p 477:

" The first question which I think a judge has to ask himself on an application of this kind is: what is the minimum time which the prisoner must spend in prison in order to satisfy the punitive and deterrent and preventive purposes of punishment?

Murder is the deliberate taking of human life and is regarded as the most serious crime known to the criminal law. Any time which a person convicted of murder must spend in prison must be proportionate to the gravity of that crime."

66. Further on, he continued, at p 479:

" Having considered what is the minimum term of imprisonment which is required to meet the punitive and protective purposes of punishment I must then consider whether parole is appropriate on other grounds. That involves a consideration of the likelihood of the applicant responding to parole. I must consider what prospects there are of his rehabilitation by means of parole and what prospects there are of his observing the terms of parole, responding to it and leading a good and useful life in consequence."

67. These passages from the judgment of King CJ in R v Stewart are not intended to be exhaustive of the subject matter discussed, although they raise the principal matters to which a judge needs to have regard. Also, it appears that considerations which a sentencing judge must take into account when fixing a non-parole period will be the same as those applicable to the fixing of a head sentence. However, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes applicable to each function: The Queen v Bugmy [1990] HCA 18; (1990) 169 CLR 525, per Mason CJ and McHugh J at p 531.

68. The purposes of the setting of a non-parole period were discussed by the High Court in The Queen v Shrestha [1991] HCA 26; (1991) 173 CLR 48 at p 67:

"The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation and rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody."

69. Later the majority of the Court said at p 68:

" The fact that considerations of mitigation and rehabilitation will ordinarily found a decision that a prisoner be released on parole does not mean that they are the only considerations which are relevant to the question (for the sentencing judge) whether a convicted person should be eligible for release on parole at some future time or to the subsequent question (for the parole authority) whether the prisoner should be actually released. All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and at the subsequent stage when the parole authority is considering whether the prisoner should actually be released on parole at or after that time. Thus, in Power v The Queen, Barwick CJ, Menzies, Stephen and Mason JJ drew attention to the fact that the legislative intent to be gathered from the terms of the parole legislation applicable in that case was to provide for possible mitigation of the punishment of the prisoner only when the stage is reached where 'the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence'. This approach has been consistently accepted in subsequent cases in this Court. Except where it is inappropriate that a convicted person should ever be considered for release on parole, the sentencing judge must formulate an overall sentence, including a non-parole period, at the end of which the parole authority must determine, according to the circumstances which then exist, whether the offender should be released on parole." (References omitted.)

A non-parole period in the context of a mandatory life sentence

70. The principles in setting a non-parole period in relation to a sentence were discussed by King CJ in The Queen v von Einem (1985) 38 SASR 207. At p 220 he held:

" It seems to me that the basic consideration in fixing a non-parole period for the crime of murder is that it is fixed in relation to a sentence of imprisonment for life. The legislature has made that sentence mandatory. Parliament could take a different view of the appropriate sentence for murder. In some places the court is empowered to impose a determinate sentence for that crime as for other crimes. But it is for Parliament and not the court to make a change of that kind. It would be wrong for the courts to approach the task of fixing non-parole periods in a manner which disregarded the fact that the mandatory head sentence is imprisonment for life.

A sentence of imprisonment for life means a sentence of imprisonment for the term of the prisoner's natural life. This is the only sentence which the law, which Parliament has enacted, permits for the crime of murder. The stringency of this mandatory sentence is mitigated to some extent by the power entrusted to the courts to fix a non-parole period, having the effect that the prisoner will be released on parole at the expiration of that period if he accepts the conditions attached to his parole by the Parole Board. A non-parole period should always bear a relation, which is appropriate in the circumstances, to the head sentence. Where the head sentence is the term of the prisoner's natural life, regard should be had, in my opinion, in fixing the non-parole period, not only to the number of years which will be spent in prison by reason of the non-parole period, but to the relationship of the non-parole period to the normal span of life. This involves some consideration of the age of the prisoner. To ignore the last-mentioned factor, would be to fix the non-parole period as though it were related to a determinate sentence and would to that extent negate the mandate of Parliament that the sentence of murder is imprisonment of life."

71. This statement has been applied to many cases since.

72. The remarks of King CJ in The Queen v von Einem may have been misunderstood in certain respects. In R v Bednikov (1997) 193 LSJS 254, Olsson J said at p 284:

" It cannot be stressed too strongly that, in adverting to a need to consider the age of the person sentenced, King CJ was not implying that a non-parole period was to be arrived at simply by some broad mathematical formula. Indeed, to do so would not only be to ignore the fundamental principles ... and a balanced application of them, but also would produce quite capricious and anomalous comparative tariffs for crimes of a similar nature committed by persons of widely differing ages ...

I consider that, at the end of the day, the fundamental starting point must be a consistent application of the [fundamental sentencing] principles ... to all cases, on a basis which throws up some reasonable sentencing tariff consistency in relation to those relative categories of homicide which tend to be used as broad yardsticks. The question of age of the offender is but one consideration. It may be of critical practical importance in the case of older offenders, where a merciful approach may warrant some moderation of an otherwise justified non-parole period."

A non-parole period

73. So long as I am of opinion that it would be inappropriate to fix a non-parole period, I am entitled to decline to fix one. The murder of Mrs Holland and her two sons was an act of sheer brutality. The applicant served 17 years or so of a life sentence before being released on parole in 1994. Within a week or so of commencing his parole, the applicant took a young lady in a motor car to a secluded place and raped her. He was convicted and sentenced to 12 years in prison, the sentence being reduced to eight years by the Court of Criminal Appeal. The disturbing feature of this case is that the applicant committed a very serious crime in about a week or so after having secured his release on parole. It must be remembered, however, that he had enjoyed considerable freedom in the year immediately preceding his release on parole.

74. In considering the question of a non-parole period, I must have regard to the criminality involved. Also, I must ascertain what is the minimum time spent in gaol to satisfy the punitive and deterrent purposes of punishment. The crimes here are murder and rape. Both are very serious offences, although murder stands alone in terms of gravity.

75. Earlier in these reasons, I have dealt at length with the evidence and reports of the psychiatrist Dr K P O'Brien and the report of the psychiatrist Dr Bruce Westmore. So far as their reports and the evidence of Dr O'Brien are concerned, the position may be summarised as follows. In the second of his reports Dr K P O'Brien came to the conclusion that the applicant was a psychopath and that at least some of the characteristics of that condition still remain relatively unaltered. He considered that he would remain a risk at some level to the community. He said that given the nature of psychopathy there is little reassuring information either in clinical practice or the literature that psychiatric or psychological intervention would materially alter that situation.

76. Dr O'Brien said that the applicant had attended a number of courses within the prison system such as courses dealing with anger management and victim awareness. No matter how valuable these courses were, they did not go to the heart of the matter which was the applicant's personality and unless there is meaningful intervention in that area, nothing will change. He said at the very least there should be a pre-release programme implemented with respect to the applicant but that such a programme does not exist at the present time. Also, post-release programmes are not offered at the present time. Supervision would need to be tight because the external structure of the gaol would be gone.

77. According to Dr O'Brien, the applicant does very well in gaol but it is not possible to make reliable predictions on how he might behave in the community.

78. Dr Westmore, in his report expressed the view that the applicant represented an on-going risk to the community at worse and an unknown risk to the community at best. I draw attention to Dr Westmore's report where he says that to assess where the applicant is on that spectrum would need detailed psychiatric and psychological treatments and assessments to understand his psychology more comprehensively.

79. Dr Westmore said that he would not recommend that the applicant be released without back up legal mechanisms available to the Parole Board, for example, to continue his detention should it become apparent after appropriate assessments and therapy that he remain a continuing and possibly long term risk to the community.

80. I have given very careful consideration to the psychiatric and psychological evidence to which I have earlier referred in these reasons and if that were the only consideration, I would probably decline to fix a non-parole period. However, in the circumstances of this case, there are other issues which need to be considered. As I have explained earlier in these reasons, the setting of a non-parole period is but one step towards the eventual release of a prisoner into the community. In addition to the fixing of a non-parole period, the Parole Board will need to work towards the prisoner's release with the eventual decision in the hands of the Governor with a favourable recommendation from the Board. No doubt before any ultimate release occurs, further psychiatric advice can be sought and acted upon if thought necessary. The fixing of a non-parole period will enable the applicant to proceed from a medium security prison towards a prison of low security.

81. The applicant is now 57 years of age. He has spent a total of 23 years or thereabouts in gaol.

82. The Crown does not oppose the setting of a non-parole period in this case; nor does it consent. Counsel for the Crown said that the setting of a non-parole period was one for the Court.

83. In evidence, a number of the witnesses made the point that in the prison system no effort is made to put a prisoner on a path of rehabilitation leading to his eventual release on parole unless a non-parole period has been set in relation to that prisoner. The applicant is now placed in medium security and will remain there until a non-parole period has been set in relation to him. He will then progress over time to decreasing levels of security with a view to a smooth transition to being released on parole.

84. The basic theory of the parole system, is that considerations of rehabilitation make it unnecessary and undesirable that the whole of the sentence should be served in custody: R v Shrestha (supra). A particular difficulty arises in the present case because the head sentence is a mandatory sentence for life. In this case regard must be had to the age of the prisoner and the prospect that he might die in gaol. Such a consideration may serve to mitigate what might otherwise be regarded as a proper non-parole period.

85. A number of Victim Impact Statements from members of the Holland family and Ms Grice, the victim of the rape which occurred in 1994, were received by the Court. It is only from reading this material that one can appreciate the devastating effect on the lives of individuals which the crimes in question have had. Over 20 years later the individuals concerned still suffer from the consequences of the applicant's conduct. They suffer anguish, an acute sense of loss of loved ones and a feeling of deprivation. They experience a loss of family and a sadness for the loss of what might have been, a loss compounded by the complete and utter futility of what occurred as a result of the applicant's behaviour.

86. The applicant, while originally denying that he had committed the murder of Mrs Holland and her two sons, eventually confessed to the crime. So far as the rape was concerned, he has maintained at all times that the sexual arrangements which he had with Ms Grice were consensual.

87. In all the circumstances I have decided to fix a non-parole period in this case.

The duration of a non-parole period and its commencement date

88. In this case, a non-parole period was set in relation to the conviction for murder. That was for a period of 22 years commencing on 16 July 1977. While out on parole, the applicant committed rape. He was convicted of that offence and sentenced to 12 years' imprisonment reduced to eight years on appeal. The applicant's sentence for rape commenced on 25 November 1994. The effect of the applicant being sentenced to imprisonment for rape was that his parole in relation to the sentence for murder was revoked and he became liable to serve the balance of that sentence in gaol: Correctional Services Act, s 75. Also, on the revocation of his parole, he ceased to be subject to a non-parole period. The Court has a discretion to fix a non-parole period in relation to the applicant on application: Criminal Law (Sentencing) Act, s 32(3).

89. Where a court fixes a non-parole period, the court must specify the date on which the non-parole period was to commence or was taken to have commenced: Criminal Law (Sentencing) Act, s 30(4). Also, in fixing a non-parole period, as the applicant is currently serving a sentence of imprisonment, the period already served must be taken into account: Criminal Law (Sentencing) Act, s 32(7)(a).

90. In this matter it appears that I should have regard to what is generally known as the totality principle as it appears that such principle has application to the setting of a non-parole period: R v Miller (Unreported, Doyle CJ, Judgment No  [2000] SASC 16). In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, McHugh J, at pp 307-308, described this principle as follows:

"The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved."

91. I have given thought to that matter in the present case and I am satisfied in the circumstances that the non-parole period that I am about to set does not infringe that principle.

92. In this matter, the applicant has been in prison since he was first taken into custody on 16 July 1977 with the exception of a week or so between the commencement of his parole and his being taken into custody in connection with the rape charge.

93. In the present case, a non-parole period cannot be fixed to run from the date the applicant was first taken into custody because of the existence of a broken period between the release of the applicant on parole in 1994 and his subsequent arrest. I have decided to fix a non-parole period in relation to the applicant to commence on 25 November 1994 being the date the applicant was sentenced in relation to the rape charge. In my view, having regard to all the circumstances of this case, I consider that a period of 15 years would be appropriate.

94. For the reasons I have given, I therefore order that pursuant to subs 32(3) of the Criminal Law (Sentencing) Act 1988 a non-parole period of 15 years be fixed in relation to the applicant, such period to be deemed to have commenced on 25 November 1994, the date when the applicant was sentenced in relation to the conviction for rape.