NICOLE MCGUINNESS v R [2025] SASC 18

Applicant: NICOLE MCGUINNESS Counsel: MR J HENDERSON - Solicitor: SHAW LEGAL & ADVISORY Respondent: R Counsel: MS L HURLEY - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Second Respondent: PAROLE BOARD OF SOUTH AUSTRALIA No Attendance Hearing Date/s: 20/01/2025 File No/s: SCCRM-24-045374 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 McGUINNESS [2025] SASC 18 Judgment of the Honourable Justice Bampton 25 February 2025 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 Application to fix a non-parole period pursuant to s 47(3) of the Sentencing Act 2017 (SA) – where applicant was convicted of murder, sentenced to life imprisonment, and a non-parole period of 18 years was fixed – where the applicant has been previously released on parole and had parole cancelled – where a new non-parole period was fixed and the applicant was again released on parole – where the applicant breached parole conditions and parole was cancelled. Held (granting the application): Non-parole period of 18 months fixed, backdated to 11 August 2024. Sentencing Act 2017 (SA) ss 47(3), 47(5)(b), referred to. R v McGuinness [2022] SASC 84, considered. -- 1 of 11 -- -- 2 of 11 -- R v MCGUINNESS [2025] SASC 18 Criminal: Application to fix a non-parole period 1 BAMPTON J: On 24 July 2003, Nicole McGuinness was sentenced by Perry J to life imprisonment, with a non-parole period of 18 years backdated to 20 November 2001, following her plea of guilty to the murder of Joanne Lillecrapp (formerly known as John Lillecrapp). 2 Ms McGuinness was paroled on 13 January 2021. Her parole was cancelled on 22 March 2022 and her life sentence reinstated due to a proven breach of the “no drugs” parole condition. 3 On 16 August 2022, upon Ms McGuinness’ application to fix a new non-parole period pursuant to s 47(3) of the Sentencing Act 2017 (SA) (“the Act”), the Court fixed a new non-parole of 12 months backdated to 24 October 2021. Ms McGuinness was again granted parole on 26 June 2024. Due to breaches of parole conditions, a Parole Board warrant was executed on 11 August 2024, and Ms McGuinness was returned to prison. Following an interview by the Parole Board, Ms McGuinness’ parole was cancelled and her life sentenced reinstated on 2 October 2024. 4 Ms McGuinness now makes application for the fixing of a new non-parole period. The application was heard on 20 January 2025. The sentence of life imprisonment 5 Justice Perry summarised Ms McGuinness’ offending and that of her co-accused in his sentencing remarks as follows: At the time of the killing you had both been residing at the victim’s house at Angle Park for about four weeks. [The victim was 53 years old]. You [Ms McGuinness and Ms Casagrande] had been in a relationship with each other for about three years. The victim had befriended you and offered you accommodation when you visited from interstate. You, Ms Casagrande, gave to the victim some money to be banked on your behalf. When you asked the victim for the PIN number of the bank account into which [the victim] had placed the money, in order to withdraw it, [the victim] refused. … Against that background, you both resolved to drug the victim in the expectation that this might enable you to elicit from [the victim] the PIN number. To this end, you laced a meal, which you prepared for [the victim], with Rivotril. After the drug took effect, the victim still refused to give the PIN number. A struggle ensued. You, Ms Casagrande, punched the victim and broke [the victim’s] nose. You, Ms McGuinness, took a knife from the kitchen and threatened the victim with it. After these assaults, [the victim] gave the PIN number. -- 3 of 11 -- [2025] SASC 18 Bampton J 2 You, Ms Casagrande, went to the bank, but the PIN number proved incorrect. You were unable to access the account. When you returned to the house you found Ms McGuinness sitting on top of the victim, holding the knife, with a pillow over [the victim’s] face. It appeared that the victim had been stabbed in the temple a number of times and was bleeding from the resulting wounds and from the nose. You, Ms McGuinness, then stabbed the victim once through the heart and four times through the stomach, killing [the victim]. You accept that you intended to kill, although you say that you now have no memory of the stabbing. Between the two of you, you attempted to dispose of the body. When it proved too heavy to put into the boot of the vehicle in the driveway, you used, between you, a hacksaw, a knife and an axe to dismember the body. The torso was then dumped at Port Parham, and the legs in the Adelaide Hills. The head was burned in an incinerator in the yard of a commercial premises at Wingfield. Victim impact statements 6 Two victim impact statements were read during the hearing on 20 January 2025 on behalf of Ron Lillecrapp, the brother of Joanne Lillecrapp. 7 In the first statement dated July 2022, Mr Lillecrapp expresses his despair and frustration at Ms McGuinness’ release into the community, her use of illicit drugs, and the danger he considers she presents to the community. He expresses his disbelief that during Ms McGuinness’ first release on parole, she overdosed after having conducted Google searches of her name and seeing the nature of the reports about her offending. He says he regards this as just an excuse for her behaviour. Mr Lillecrapp points out he lives with the anguish and pain of what happened to his much-loved sibling every second of every day, which he describes as a life sentence. 8 In his January 2025 victim impact statement, Mr Lillecrapp states that each time Ms McGuinness is given the privilege of parole and re-entering society, she abuses it by resorting to illicit drug use. He argues that she has not rehabilitated because if she had, she would not have to return to court, and he would not have to relive Joanne’s murder yet again. He asks how many chances does Ms McGuinness get, bearing in mind her history, and how many times does he have to come to court and defend not only Joanne, but all those people who have been affected by the murder. Mr Lillecrapp is completely opposed to the fixing of a non-parole period, pleading he wants justice for Joanne. Ms McGuinness’ grants of parole 9 The presiding member of Parole Board has provided the Court with a report dated 18 December 2024 detailing Ms McGuinness’ incarceration and response on parole. 10 The presiding member notes that the psychiatrist Dr Branson reported in June 2003 that Ms McGuinness satisfied the criteria for borderline personality -- 4 of 11 -- [2025] SASC 18 Bampton J 3 disorder, which Dr Branson described as “a serious developmental disorder characterised by unstable moods, chaotic interpersonal relationships, impulsivity, identity disturbance and substance abuse”. A psychiatric report provided to the Parole Board by the psychiatrist Dr Smith on 20 December 2018 reported that Ms McGuinness’ features of borderline personality disorder had become less prominent, in that she was, at the time of the report, aware of how substance abuse influenced her offending. It was reported that Ms McGuinness’ polysubstance use disorder was in remission whilst she was in prison and that there was no evidence of her having a depressive or psychotic disorder. 11 The presiding member had also provided a report dated 10 June 2022 in respect of Ms McGuinness’ previous application to fix a non-parole period. The presiding member reported that following her incarceration, Ms McGuinness undertook a brief intervention program relating to substance abuse, a brief anger management program, and a brief intervention program relating to domestic violence. Facilitators of each program noted that Ms McGuinness engaged positively. 12 Ms McGuinness’ work ethic and commitment to her employment in the garden and as a cleaner at the Adelaide Women’s Prison (“AWP”), then at the Northfield Distribution Centre after her transfer to the Adelaide Pre-Release Centre (“APRC”), was also noted to be high. 13 After having spent time in the APRC, Ms McGuinness was returned to the AWP in February 2018 due to behavioural issues, including intimidating behaviour. In August 2018, she was transferred back to the APRC as a prisoner. Thereafter, she was provided with various therapeutic programs to deal with addictions and behaviour. In October 2019, she was referred to a program to deal with interpersonal challenges. 14 In the first four years of her incarceration, Ms McGuinness used drugs illegally but from May 2012 until she first applied for parole, she was urine tested 19 times and returned negative results. First grant of parole 13 January 2021 15 Ms McGuinness was released by the Parole Board on 13 January 2021 but was unable to abstain from using illegal drugs. On 5 May 2021 and 12 May 2021, she tested positive to amphetamine and methamphetamine. This was in breach of the rules and regulations at the APRC where Ms McGuinness was living as a parolee. 16 Ms McGuinness was released from a Parole Board warrant on 30 September 2021 to return to the APRC. 17 On 24 October 2021, Ms McGuinness’ accommodation at the APRC was searched and five capped syringes, prescription medications, and other items of contraband were located. Ms McGuinness returned positive urine test results to -- 5 of 11 -- [2025] SASC 18 Bampton J 4 opioids, benzodiazepine, amphetamines, and methamphetamines. Testing also detected that Ms McGuinness had recently used heroin, and she acknowledged that she had taken approximately 30 serepax tablets. Ms McGuinness’ speech was noted to be slurred, her eyes glazed, and she was unsteady on her feet. As she had difficulties breathing and had an altered level of consciousness, she was transferred by ambulance to the Modbury Hospital. Cancellation of parole and reinstatement of life sentence 22 March 2022 18 Ms McGuinness’ parole was cancelled on 22 March 2022 and her life sentence reinstated. Fixing of a new non-parole period 16 August 2022 19 Following her application for the fixing of a new non-parole period, a Judge of the Supreme Court fixed a further non-parole period of 12 months, backdated to 24 October 2021.1 Second grant of parole 26 June 2024 20 The Parole Board received a pre-parole report and submissions of support from Seeds of Affinity, an alcohol and other drug prisoner counsellor, and Ms Bertossa of the Flinders Wellbeing Centre. 21 Ms McGuinness engaged in the modified dialectical behaviour program from October 2022 to November 2022, tailored to her borderline personality disorder. 22 Following an interview with Ms McGuinness on 24 January 2023, the Parole Board resolved to approve her release on parole. Ms McGuinness was transferred to the APRC on 27 February 2023. Initially, Ms McGuinness settled in smoothly. It was expected that Ms McGuinness would progress to off-centre activity and her goal was to volunteer with the greyhound adoption program. Ms McGuinness was noted to engage actively with the Department for Correctional Services’ psychologist, the Aboriginal Sobriety Group, the Flinders Wellbeing Centre, and Seeds of Affinity. 23 On 14 September 2023, the Parole Board was informed that Ms McGuinness was in unauthorised possession of a mobile phone and that she had been using the phone since at least 5 September 2023. Ms McGuinness tested positive to buprenorphine on 15 September 2023 and was regressed back to the AWP. She also admitted to taking someone else’s medication, saying “I do things without thinking when I am depressed”. The Parole Board re-interviewed Ms McGuinness on 26 March 2024 and determined to approve her release on parole, subject to her continued good behaviour. 24 On 3 June 2024, the APRC confirmed that Ms McGuinness was accepted into the Work Ready, Release Ready program. She had the intention of 1 R v McGuinness [2022] SASC 84. -- 6 of 11 -- [2025] SASC 18 Bampton J 5 maintaining regular contact with Seeds of Affinity and had stabilised on the buvidal program. She had not, at that time, been subject to any urine testing, nor had she been subject to any disciplinary action. 25 Ms McGuinness was released on parole on 26 June 2024 and returned a positive urine test within one week. It was considered highly unlikely that the positive test was due to her admitted use of panadeine forte. The Parole Board declined to issue a warrant but summonsed her for interview. When questioned by the Parole Board about breaching curfew on a number of occasions, Ms McGuinness gave various excuses, for example: “her phone had been run over by an Uber”; the person who took her to the movies returned her after curfew, although Ms McGuinness could not remember the name of the movie she had seen upon further questioning; and she was unable to find a taxi. 26 On 24 July 2024, having returned a positive urine test to benzodiazepine, Ms McGuinness revealed that she had been prescribed Valium, which she had not declared to her case manager. She reported that the drug had been prescribed by her general practitioner and provided her case manager with a box recording a prescription dated 11 July 2024. It was noted that there were only six tablets left in the packet from the issued 50 tablets, suggesting that in 13 days, 44 tablets had been consumed. In response to this suggestion, Ms McGuinness asserted that the rest of the tablets were in her locker at the APRC. Cancellation of parole and reinstatement of life sentence 2 October 2024 27 Ms Guinness was interviewed by the Parole Board on 2 October 2024, at which time the Parole Board was aware that Ms McGuinness had substituted her urine with another person’s urine on 7 August 2024. She had also been associating with another offender who was a known drug user, contrary to the directions of her case manager. Further, she tested positive to benzodiazepine on 8 August 2024 and acknowledged having used $400 of heroin intravenously. Ms McGuinness agreed that she had consumed tablets in prison that were not prescribed for her, knowing it was wrong, saying that she had a sore back and when offered the tablets, took them because she was not coping. Ms McGuinness also produced a script for the anti-depressant, escitalopram, prescribed by a general practitioner. 28 Ms Linda Fisk from Seeds of Affinity accompanied Ms McGuinness to the Parole Board interview on 2 October 2024 and informed the Parole Board that Ms McGuinness was not honest with her, even though Ms McGuinness was able to ring Ms Fisk at any time, day or night. Ms Fisk reported to the Parole Board that Ms McGuinness was still very immature. The Parole Board understood from Ms Fisk that despite the considerable support she was offering, Ms McGuinness was not taking advantage of that support and not making the effort to avoid drug use. Ms Fisk also noted that Ms McGuinness was a different person in prison to the person she saw in the community. 29 Ms McGuinness’ community corrections officer reported to the Parole Board that Ms McGuinness was deceitful and was not making sufficient effort. The -- 7 of 11 -- [2025] SASC 18 Bampton J 6 community corrections officer conceded that Ms McGuinness had good intentions but said that she was unable to put things that she knows she needs to do into place. 30 Ms McGuinness’ parole was cancelled on 2 October 2024 and her life sentence reinstated. 31 The presiding member concluded the report stating that while Ms McGuinness has had a great deal of support and intervention, she has either been unwilling or unable to refrain from illicit drug use. The presiding member reiterated that Ms McGuinness was under the influence of illegal drugs when she committed the murder and whilst she continues to use drugs, her risk of reoffending remains high. 32 The presiding member pointed out Ms McGuinness has had access to all the programs and intervention available currently in the AWP and until she makes a genuine commitment to remain abstinent from illegal drugs, no amount of counselling, support, and intervention will assist her. Second application for the fixing of a new non-parole period 33 The Parole Board is not opposed to the fixing of a new non-parole period and has advised that Ms McGuinness needs time to reflect on her lack of commitment and to undertake such intervention as may be available to her to address her criminogenic factors. The principles applicable to fixing a non-parole period 34 In determining this application, the Court must apply the same principles as those applicable to fixing a non-parole period, as part of the exercise of the sentencing discretion, in the context of imposing an original sentence. The Court must also take into account the breaching conduct which has resulted in the cancellation of parole and the need to deter others from breaching parole. In fixing a new non-parole period, I must have regard to: 1. the prospects of Ms McGuinness’ rehabilitation on parole; 2. the circumstances and gravity of the offence for which Ms McGuinness was imprisoned and granted parole; 3. the circumstances and gravity of Ms McGuinness’ breaches of parole; 4. the need to deter Ms McGuinness and others from further offending; and 5. the need to deter Ms McGuinness and others from breaching parole. Ms McGuinness’ submissions 35 Counsel for Ms McGuinness submitted that the presiding member’s report details comprehensively the relevant chronology and Ms McGuinness’ breaches of parole, as well as the supports that have been available to her in custody. -- 8 of 11 -- [2025] SASC 18 Bampton J 7 36 It was submitted that, although Ms McGuinness has had parole cancelled on two occasions, she is not a lost cause. Reference was made to the presiding member’s account of her corrections officer conceding that Ms McGuinness has good intentions. It was submitted that Ms McGuinness is a person who engages well and meaningfully whilst in custody, and that she has been attending once per week with Ms Rankine of the Aboriginal Sobriety Group one-on-one and once per week in a group context. 37 It was submitted that Ms McGuinness continues to seek the assistance of Ms Fisk of Seeds of Affinity, who has provided a letter to the Court confirming that the support provided by Seeds of Affinity remains in place. In her letter, Ms Fisk states that she would like to see more structure provided to Ms McGuinness when she is next released on parole. Ms Fisk reports that women face a more difficult transition from prison than men, and that the APRC is not equipped to provide women with the same opportunities that a man might receive whilst serving time. Ms Fisk affirms that drug use is the most pressing issue for Ms McGuinness and that Seeds of Affinity will assist her to find employment before she begins parole, guiding her in the right direction and helping her to establish more pro-social relationships. 38 It was submitted that Ms McGuinness also continues to consult a clinical psychologist from Flinders Wellbeing Centre. Those consultations focus on post-traumatic stress disorder and maladaptive coping mechanisms. Ms McGuinness’ counsel explained that the persons who are released on parole and permitted to leave the APRC are in custody with persons who are not permitted to leave, which it was submitted creates a tension. Effectively, once Ms McGuinness was granted parole, it was submitted that the doors were swung open to her and as she did not want to remain in the APRC, she left without any structure or anything to do, breaching curfew conditions and using illicit drugs. 39 Ms McGuinness proposes to obtain employment prior to applying for release on parole and seeking permission to leave the APRC only for work. It is her proposal that she not seek full release unless and until structure is in place regarding employment. 40 Ms McGuinness instructs her counsel that, given her offending and the public nature of it, she has found it incredibly difficult to obtain employment other than through the prison system. As she has very few friends and no family support in South Australia, each time she has been released, the only people she knows have been those with whom she has associated for the last 20 years in custody. It was submitted that Ms McGuinness is committed to her rehabilitation and to abstaining from illicit drugs. 41 It was submitted Ms McGuinness had a prescription that accounted for the positive test to benzodiazepine on 24 July 2024, although she had not disclosed this to her corrections officer. Regarding the positive test to morphine on 3 July 2024, it was submitted that Ms McGuinness had taken another prisoner’s -- 9 of 11 -- [2025] SASC 18 Bampton J 8 medication having been told that it was panadeine forte, when it may have been a stronger pain medication. With respect to the curfew breach on 30 July 2024, it was submitted that Ms McGuinness was between 10 and 15 minutes late returning to the APRC and because of that breach, a monitoring condition was added to her conditions. However, the electronic monitoring only lasted one week because, on 7 August 2024, she admitted to her corrections officer that she had used heroin and that she had replaced a urine test sample with someone else’s urine. Upon making those admissions, a Parole Board warrant was issued and executed on 11 August 2024. 42 It was submitted that the escitalopram was prescribed to improve Ms McGuinness’ mood, however, it drastically reduced it. She reports she made various calls to Lifeline and Beyond Blue as she was depressed to the point of being suicidal and then decided to obtain some heroin. She instructs that the purpose of taking the heroin was to address her depression and because she was considering overdosing on it. 43 Whilst in custody, Ms McGuinness has obtained a Certificate I in kitchen operations, a forklift licence, a working at heights clearance, an excavator ticket, and a civil construction ticket. It was submitted that, whilst she does not have many personal supports, she has enjoyed several professional supports which she is now meaningfully engaging with. Consideration 44 As submitted by counsel for the Director, it appears that Ms McGuinness relapsed into substance abuse upon her two releases on parole. She has had opportunities granted to her by the Parole Board when it was determined not to immediately cancel parole after initial breaches. As submitted, Ms McGuinness has supports and programs available to her and it is up to her to make a genuine commitment to rehabilitation. 45 Ms McGuinness is now 57 years of age. In determining the application, I bear in mind the matters detailed in the Parole Board’s report and the presiding member’s comment regarding Ms McGuinness’ need for time to reflect on her lack of commitment and to undertake intervention as may be available to her to address her criminogenic factors. I must be guarded with respect to Ms McGuinness’ prospects of rehabilitation. She has difficulty abstaining from illicit drug use and it must be borne in mind that the offence of murder was committed whilst she was using illicit drugs. 46 The need to deter Ms McGuinness and others from offending and breaching parole is a significant factor in fixing a non-parole period. 47 In the circumstances, I fix a non-parole of 18 months, backdated to 11 August 2024, the date the Parole Board warrant was executed, allowing time for Ms McGuinness to address her lack of commitment, undertake any necessary -- 10 of 11 -- [2025] SASC 18 Bampton J 9 interventions and put in place measures to support her upon her next release on parole. -- 11 of 11 --