R v CAC [2026] SASC 64

Applicant: CAC In Person Counsel: MS R GRISTWOOD - Solicitor: LEGAL SERVICES COMMISSION (SA) First Respondent: THE KING (SA) In Person Counsel: MS E NOONE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Second Respondent: PAROLE BOARD OF SOUTH AUSTRALIA No Attendance Hearing Date/s: 02/02/2026, 16/03/2026, 16/04/2026 File No/s: SCCRM-25-049909 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v CAC [2026] SASC 64 Judgment of the Honourable Justice Gray 7 May 2026 CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - LIFE SENTENCE - REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD On 23 March 1992, the applicant pleaded guilty to the murder of his then wife. The Court of Criminal Appeal imposed a non-parole period of 25 years, to commence from 26 March 1992. The applicant served that non-parole period and was released on parole on 27 July 2016 when he was 76 years old. The applicant’s parole was cancelled after he was taken into custody on 16 October 2024 and charged with the offence of maintaining an unlawful sexual relationship with a child. The applicant is currently 86 years of age and is serving a life sentence for murder with no non-parole period. That sentence is being served concurrently with a sentence of nine years for maintaining an unlawful sexual relationship with a child. That nine-year sentence will expire on 15 October 2033. 1 The applicant applies, pursuant to s 47 of the Sentencing Act 2017 (SA), for a new non-parole period to be imposed for both the life sentence for murder and for the sentence imposed in respect of the offence of maintaining an unlawful sexual relationship with a child. Held: -- 1 of 10 -- (1) The Court fixes a non-parole period of five years, with the non-parole period to commence from 16 October 2024. Sentencing Act 2017 (SA) s 47, referred to. R v Bakewell [2022] SASC 39; Foley v Police [2008] SASC 338; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; R v Brady [2011] SASCFC 79; R v [CAC] [1993] SASC 4255; R v Fricker [2017] SASC 107; R v Roberts [2016] SASCFC 41; R v Webb [1971] VR 147; Rendic v The Queen (2021) 138 SASR 214; Sauth Thi v Police [2025] SASC 169; Siganto v the Queen (1988) 194 CLR 656, considered. -- 2 of 10 -- R v CAC [2026] SASC 64 Criminal: Application GRAY J: 1 This matter concerns an application brought pursuant to s 47 of the Sentencing Act 2017 (SA) to fix a new non-parole period. It is agreed between the parties that the new non-parole period should be backdated to commence on 16 October 2024. 2 The applicant was born on 17 August 1939 and is 86 years of age. He is currently serving a life sentence for murder with no non-parole period. That sentence is being served concurrently with a sentence of nine years for maintaining an unlawful sexual relationship with a child. The nine-year sentence for maintaining an unlawful sexual relationship with a child will expire on 15 October 2033. 3 I have been asked to set a single non-parole period for both the life sentence and the sentence in respect of maintaining an unlawful sexual relationship with a child. 4 The applicant’s counsel submits that he is an elderly man and has asked that I consider a non-parole period which would allow for some hope that the applicant will not die in jail. As the applicant’s counsel properly conceded, that consideration needs to be meted against the seriousness of the offending before this Court. The offending 5 On 23 March 1992, the applicant pleaded guilty to the murder of his then wife. He was found to have killed her by discharging a shotgun at her and he was found to have intended to kill her. The circumstances of that offending are set out in some detail by Olsson J in his Honour’s sentencing remarks.1 There was also significant consideration of the circumstances of that offending by the Court of Criminal Appeal.2 Duggan J held as follows in relation to the nature of the offending:3 The callous and pre-meditated manner in which the prisoner carried out this offence places it in the high range of seriousness for offences of murder. The facts are a vivid illustration of the vulnerability of a woman in the deceased’s position and for that reason the aspect of general deterrence assumes considerable importance in the approach to sentencing. There is little doubt on the material presented to the learned sentencing judge that the prisoner came to Adelaide from Darwin with the express purpose of killing his wife. He purchased a shotgun with that in mind and cut the barrel down so that it could be more 1 Sentencing Remarks in R v [CAC] (Supreme Court of South Australia, Olsson J, 05 July 1993). 2 R v [CAC] [1993] SASC 4255. See particularly, the decision of Bollen J (with whom Mulligan J concurred). Mulligan J generally agreed as did Justice Duggan in separate reasons. 3 R v [CAC] [1993] SASC 4255, at 6 (Duggan J). -- 3 of 10 -- [2026] SASC 64 Gray J 2 easily concealed. He then proceeded to stalk his wife over a period of days so as to provide himself with the most suitable opportunity for confronting her. When she refused to accede to his demands that she accompany him he shot her. There is some ambiguity in the record of interview as to his precise intention, but the clear inference to be drawn from the whole of the evidence is that he fired the shot intending to kill her and that he utilised some experience he had received in the army in aiming the rifle at a particular area of the deceased’s body so as to achieve his purpose. 6 His Honour went on to state:4 There is nothing in the circumstances of the offence itself which could be relied upon to mitigate this conduct. The only considerations which were advanced as providing some mitigation were the absence of prior convictions and the fact of the plea of guilty. 7 Duggan J went on to hold:5 In the present case it could hardly be said that the plea of guilty resulted from genuine remorse. Furthermore the plea, coming at the time which it did, provided little scope for a reduction in sentence on the grounds of willingness to co-operate with authorities. The prisoner was committed for trial on 31 August 1992. He pleaded guilty on 30 April 1993, approximately four days before the proposed commencement of the trial. In my view late pleas of guilty made in such circumstances are of very little weight in reducing what would otherwise be the appropriate penalty. 8 The Court of Criminal Appeal imposed a non-parole period of 25 years, with that period to commence from 26 March 1992. It is agreed between the parties that the applicant before his release on parole, spent 24 years, 4 months and 2 days in custody. 9 The applicant was released on parole on 27 July 2016 when he was 76 years old. The applicant was taken into custody on 16 October 2024, and his parole was cancelled on 17 December 2024. 10 The applicant was taken into custody in respect of the offending the subject of the maintaining an unlawful sexual relationship with a child charge. The circumstances of that offending are detailed in the sentencing remarks of Barnett DCJ. 11 Her Honour in sentencing said:6 [CAC], you have pleaded guilty to one count of sexual abuse of a child contrary to s 50 of the Criminal Law Consolidation Act. The maximum penalty for that offence is imprisonment for life. You are entitled to a discount of up to 25% on account of the timing of your plea. In about June 2023 you commenced tutoring the victim in mathematics. She would come to your house to receive tutoring services. About six months into tutoring you commenced sexually abusing the victim approximately twice a week when she came over, until your 4 R v [CAC] [1993] SASC 4255, at 6-7 (Duggan J). 5 R v [CAC] [1993] SASC 4255, at 7 (Duggan J). 6 Sentencing Remarks in R v [CAC] (District Court of South Australia, Barnett DCJ, 20 June 2025). -- 4 of 10 -- [2026] SASC 64 Gray J 3 arrest on 16 October 2024. That is a period of about 10 months in which time the victim was aged between 13 and 14 years old, and you were aged between 84 and 85 years old. Your offending came to light due to suspicions held by your wife who observed gifts that you had bought for the victim and that you had spent lots of time together. She also noticed that you had started taking Viagra and had requested for the victim to sleep over at your house. As a result of these suspicions she recorded the audio of an interaction between you and the victim on her iPad where you discussed sexual acts and that there were sounds consistent with the occurrence of sexual acts. She provided the police with the iPad and the recording. The sexual acts which you have admitted include penile-vaginal intercourse, penile-anal intercourse, the performance of fellatio on yourself and the performance of cunnilingus by you on the victim, and touching the victim's breasts and bottom. 12 Barnett DCJ imposed a sentence of imprisonment of nine years and directed the sentence commence from 16 October 2024. Behaviour on parole and in prison 13 The most recent Parole Board Report expresses a number of concerns about the applicant’s engagement with his community corrections officer. The submissions of the applicant’s counsel indicate that there was a period of supervision between 2019 and 2021 in which there was a poor relationship between the applicant and the particular community corrections officer assigned to the applicant. 14 I note that the concerns in relation to the applicant’s attitude related predominantly to the period between 2019 and 2021. I also note that in the year prior to the applicant’s arrest for the maintaining a sexual relationship with a child charge the Parole Board considered the applicant’s interaction with supervisors to have improved and the applicant was willing to engage in meaningful discussions. The applicant’s reporting frequency was varied as a result. 15 Considering both Parole Board reports overall, it is clear however, that concerns about the manner in which the applicant engaged with supervision extended beyond the period when he had a poor relationship with his case manager.7 There continued to be some issues noted, including the maintenance of anti-authoritarian values in 2023. However, as the applicant’s counsel points out from about mid 2021 onwards, there was no issue reported with his engagement and supervision which was for the most part deemed to be respectful.8 Ultimately, the applicant’s behaviour has been characterised in the most recent Parole Board report as being argumentative and concerning.9 7 Parole Board Report of E F Nelson KC dated 13 February 2025; Parole Board Report of E F Nelson KC dated 02 March 2026 (FDN 7) (‘Parole Board Report’). 8 Parole Board Report of E F Nelson KC dated 02 March 2026 (FDN 7), at 5 [6], [8]. 9 Parole Board Report (n 7) at 7. -- 5 of 10 -- [2026] SASC 64 Gray J 4 16 The applicant has been in custody in respect of his most recent offending since 17 October 2024. The special aspects pre-sentence report10 indicates that the applicant has displayed good behaviour and has spent majority of his time in custody on an enhanced regime. Whilst there are two matters recorded in respect of his behaviour, these matters are considered minor and the case notes indicate that he most frequently is described as polite. The report also indicates that the applicant has experienced some ill health whilst in prison and has at times been placed in the high dependency unit for elderly prisoners with high health needs. In early 2026, the applicant was placed in the aged and infirm unit at Port Augusta, and he is reported as being social with other prisoners in that unit. 17 The applicant has some significant health issues, having had a pacemaker fitted and a knee reconstruction. The applicant also reports that his vision is declining and his breathing is poor. Personal circumstances 18 The applicant was born in Kenya in 1939. His mother left the family early, leaving the two youngest children in the care of her husband. The applicant left school at the age of 15 years and joined the Merchant Navy. After 18 months, he joined the British Army. He saw active duty in a number of countries. The applicant then left the army and became a bus driver. Whilst working as a bus driver the applicant met and married the victim of the murder that he later committed. The applicant and his then wife came to Australia where he initially worked on a General Motors Holden assembly line. He then qualified as a high school teacher with a Bachelor of Education. He was employed as a high school teacher up until around the time of the murder of his then wife. As indicated above, the applicant served over 24 years in custody in respect of that offending. 19 There are some discrepancies in the records as to the date of the applicant’s release from custody. However, it is an agreed position of the parties that the applicant was released on parole on 27 July 2016 when he was 76 years old. The applicant remained on parole in the community until 17 December 2024, after which his parole was cancelled. The applicant re-married after his release on parole and he remains married. The applicant’s current wife continues to communicate with him and provide support to the applicant whilst he is in custody although, she has indicated that she does not support the applicant’s further release on parole. Victim impact statements 20 The impact of an injury, and the impact of loss or damage caused by a defendant’s criminal conduct at common law have always been regarded as 10 Special Aspect Pre-sentence Report of Hugo Lines dated 12 March 2026 (FDN 4) (‘Special Aspects Report’). -- 6 of 10 -- [2026] SASC 64 Gray J 5 relevant matters for a court to consider sentencing.11 The legislative provisions which concern victim impact statements are consistent with and do not derogate from the common law principles.12 At the hearing of this matter a victim impact statement of Mr Rodger Dalby, who is the former partner of the victim of the murder committed by the applicant was read. The prosecutor also read the statement of the mother of the complainant in respect of the maintain an unlawful sexual relationship with a child offending. 21 The victim impact statement of Mr Dalby indicates the lasting impact of the applicant’s offending in respect of the murder of Mr Dalby’s partner and the impact of the applicant having not expressed any remorse in respect of that offending. 22 The mother of the victim of the maintain an unlawful sexual relationship with a child charge references the impact of the applicant’s offending upon her desire to feel safe in her own home. She references the fact that the applicant knew that she was living in a domestic violence safe house and that what the applicant took advantage of her family whilst they were recovering from domestic violence. The applicant presented as a friendly figure towards not only the victim but other children in the street. The applicant is said to have offered to provide tutoring to the victim at a time he knew the victim was not doing well at school and took advantage of that situation. The mother of the child referenced how the applicant manipulated her daughter by buying gifts. She makes reference to the constant guilt that she feels for permitting the applicant to have contact with her daughter. The mother of the child notes the victim’s young age at the time that the applicant started sexually abusing her and the inability of her daughter to speak about what he did to her, and the manner in which the applicant’s conduct impacted the childhood innocence of her daughter, including the consequences of her daughter having to live with trying to forget the things that the applicant did to her. 23 I have had regard to the impact of the injury loss and damage suffered by both victims and their families resulting from the applicant’s admitted criminal conduct. Fixing a non-parole period 24 Section 47 of the Sentencing Act 2017 (SA) relevantly provides: (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 11 R v Webb [1971] VR 147, at 150-1 (Winnecke CJ, Pape and Lush JJ); R v P (1992) 64 A Crim R 381, at 384-5 (Burchett, Miles and O’Loughlin JJ); Siganto v the Queen [1998] HCA 74; (1988) 194 CLR 656, at 665-6 [29] (Gleeson CJ, Gummow, Hayne and Callinan JJ). 12 Rendic v The Queen [2021] SASCA 23; (2021) 138 SASR 214, at [5]-[6], [9] (Lovell JA, Kelly P agreeing). See generally Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at 469-70, at [19] (French CJ, Crennan and Kiefel JJ); Sauth Thi v Police [2025] SASC 169, at [22]. -- 7 of 10 -- [2026] SASC 64 Gray J 6 … (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 (4) The fact that the prisoner has completed a non-parole period previously fixed in respect of the same sentence of imprisonment, or that a court has previously declined to fix a non-parole period in respect of that sentence, does not preclude an application under subsection (3). (5) The above provisions are subject to the following qualifications: … (b) if fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years; … 25 The application made by the applicant enlivens the power conferred by s 47(3) of the Sentencing Act.13 The discretion to fix a non-parole period pursuant to s 47(3) is to be exercised judicially and is not confined by sub-s 47(5)(b) of the Sentencing Act, as this is the second time that a non-parole period is to be set in respect of the applicant being a person sentenced to life imprisonment.14 26 The relevant considerations are:15 1. The prospects of rehabilitation on parole. 2. The gravity of the offence or offences for which the offender was imprisoned and then paroled. 3. The gravity of the breaching offences on which the offender was imprisoned or the breach of the designated condition. 4. The need to deter the offender and others from commission of offences of a type with respect to which he was on parole and the offences of a 13 R v Bakewell [2022] SASC 39 at [46] (Kourakis CJ); R v Brady [2011] SASCFC 79 at [27]-[28] (Nyland J). 14 R v Bakewell [2022] SASC 39 at [47] (Kourakis CJ). 15 R v Fricker [2017] SASC 107, at [20] (Peek J); R v Roberts [2016] SASCFC 41, at [15]-[17]; Foley v Police [2008] SASC 338, at [22] (Kourakis J). -- 8 of 10 -- [2026] SASC 64 Gray J 7 type that breached that parole or the need to deter the offender and others from breaching a designated condition. 5. The need to deter the offenders and others from breaching parole. Consideration 27 I have in considering the question of non-parole period had regard to the impact of the applicant’s offending upon the victims of his offending. I have had regard to the injury, loss, or damage suffered as a consequence of the applicant’s offending as provided for in the victim impact statements.16 28 Both the offending in respect of the murder charge and the offending involved in the maintaining an unlawful sexual relationship with a child involves serious offending. The non-parole period I set must recognise the need to deter the applicant and others from engaging in criminal conduct of this nature. 29 It is concerning that in the special aspects report, it is recorded that the applicant reflects very poor insight into the offending and made comments to the effect that the child victim was enticing him and the offending was consensual.17 It is also concerning that in the Parole Board Report, it is noted that in 2020 the applicant appeared to show no remorse concerning the murder he committed and that he expressed no empathy or remorse to those affected by his offending and remained focused on the victim of his murder having done things to him.18 30 The difficulty with the task of setting a new non-parole period in this matter is the issue of how a realistic assessment of the prospect of rehabilitation can be made in the circumstances of this case. The offending which breached the applicant’s parole was very serious. The offender history of the applicant is such that he is a poor candidate for parole. Whilst there was some improvement in engagement with supervision in the year prior to the applicant being taken into custody for the offending associated with the maintaining an unlawful sexual relationship with a child, overall, his behaviour on parole was considered to be argumentative and concerning. 31 The applicant is currently being accommodated within what is an aged care facility within the prison system. I note that the applicant’s counsel has sought that a non-parole period be set such that the applicant has some prospect of being released on parole into the community. When this consideration is weighed in the context of the applicant’s advanced age and the seriousness of the offending, the prospect of the applicant reaching an age at which he will be eligible for parole is limited. That said, I do consider that it is appropriate to set a new non-parole period to provide some prospect of the applicant being rehabilitated in the community should he reach an age at which he will become eligible for parole, and should the 16 Sentencing Act 2017 (SA) s 14. 17 Special Aspects Report dated 12 March 2026, (n 9) at 6. 18 Parole Board Report (n 7) at 3. -- 9 of 10 -- [2026] SASC 64 Gray J 8 Parole Board at that stage, assess the applicant as being suitable for release into the community. 32 Ultimately, I must consider the question of the safety of the community. Were it not for the applicant’s advanced age and fragility, and the fact that the non- parole period I impose will represent a significant if not the entirety of the applicant’s remaining life, I would have imposed a higher non-parole period. Considering all the circumstances of this case, having regard to the circumstances of the applicant’s offending and his personal circumstances, including the matters referred to by his counsel, I set a non-parole period of five years, with the non-parole period to commence from 16 October 2024. -- 10 of 10 --