CHRISTIAN ANDREW PEREZ v R [2025] SASC 95

Applicant: CHRISTIAN ANDREW PEREZ Counsel: MS S CARTER - Solicitor: CARTER & CO LAWYERS First Respondent: R Counsel: MS E SHAW - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 05/05/2025, 19/05/2025 File No/s: SCCRM-25-006062 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 PEREZ [2025] SASC 95 Judgment of the Honourable Justice Stein 12 June 2025 CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - LIFE SENTENCE - REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD This is an application to fix a non-parole period pursuant to s 47(3) of the Sentencing Act 2017 (SA). On 29 June 2006, following a plea of guilty to murder, the applicant was sentenced to imprisonment for life with a non-parole period of 14 years, backdated to 3 January 2004. The applicant was released on parole on 20 February 2018. On 28 December 2023, the applicant’s parole was cancelled after returning positive results to drug screening tests. Held: 1. The application to fix a non-parole period is granted. 2. A non-parole period of 18 months is fixed, backdated to 28 December 2023. Sentencing Act 2017 (SA) s 47, referred to. R v Brady (2015) 123 SASR 294; R v Roberts [2016] SASCFC 41; R v Fricker [2017] SASC 107; R v Bakewell [2022] SASC 39, considered. -- 1 of 10 -- -- 2 of 10 -- R v PEREZ [2025] SASC 95 Criminal: Application 1 STEIN J: Mr Perez has applied for an order that, pursuant to s 47(3) of the Sentencing Act 2017 (SA), a non-parole period be set in respect of his sentence of life imprisonment. 2 On 29 June 2006, after pleading guilty to murder, Mr Perez was sentenced to life imprisonment with a non-parole period of 14 years, backdated to 3 January 2004. The Parole Board resolved to release Mr Perez on parole on 20 February 2018. On 28 December 2023, the Parole Board determined to cancel Mr Perez’s parole. 3 For the reasons below, I have determined to fix a non-parole period of 18 months, backdated to 28 December 2023. Background 4 On 1 January 2004, Mr Perez murdered Mr Kenneth Murphy. On New Year’s Eve, Mr Perez went to the Mars Bar, a popular venue for homosexual men, and later in the morning of 1 January 2004 went to the home of Mr Murphy. Mr Perez said Mr Murphy made sexual advances to him which he did not welcome but he agreed to give him a massage. When Mr Murphy was lying face down on a bed, Mr Perez attacked him with a wheel brace, then went to the kitchen, took a knife and stabbed Mr Murphy in the neck and abdomen. With the assistance of his family, he obtained legal representation and, on 3 January 2004, surrendered to police and admitted to the killing. The sentencing remarks of Bleby J indicate that at the time, Mr Perez had been a heavy intravenous user of methylamphetamine for about 10 years, overlapping with an earlier period of 10 years of substantial use of cannabis and other drugs, including LSD and cocaine. Mr Perez was significantly affected by methylamphetamine at the time of the murder. In sentencing, Bleby J found there were aggravating circumstances including that Mr Perez brought the wheel brace with him to the house. Justice Bleby, however, noted that Mr Perez acknowledged his guilt, surrendered to police and accepted responsibility for his actions. 5 While in custody, Mr Perez received consistent reports of good behaviour and excellent work. He was assessed at low risk of violent re-offending and therefore was not considered suitable for the violence prevention program. He completed an anger management course. Breaches of Pre-Release Centre regulations and parole 6 Mr Perez was initially released to reside as a parolee at the Adelaide Pre- Release Centre. -- 3 of 10 -- [2025] SASC 95 Stein J 2 7 On 1 August 2018, Mr Perez received a negative test and was due to re- commence employment as a project fire fighter for the Department of Environment, Water and Natural Resources on 3 September 2018. 8 On 28 August 2018, Mr Perez advised the regional director his car had been damaged; he attributed this to a former Department for Correctional Services officer, Ms Stretton, with whom he had had a disagreement. Mr Perez was told to cease all contact with Ms Stretton. On 2 September 2018, Ms Stretton phoned the Adelaide Pre-Release Centre claiming Mr Perez was harassing her. Ms Stretton provided various information which resulted in Mr Perez being searched and being found in possession of a number of items, including two strips of Suboxone, a USB flash drive and a glue stick. Mr Perez was returned to Yatala Labour Prison and charged with delivering a prohibited item to a prisoner. 9 Mr Perez’s antecedent report shows that on 9 April 2019 he was convicted of three counts of delivering a prohibited item to a prisoner and discharged without penalty. 10 On 30 October 2018, during an interview with the Parole Board, Mr Perez told the Parole Board that he had sustained a shoulder injury which was causing him considerable pain and distress and he was using Suboxone to manage his pain. The Parole Board received a certificate from an orthopaedic surgeon confirming Mr Perez had a rupture to his bicep tendon. 11 On 16 November 2018, Mr Perez tested positive to buprenorphine for which he did not have a prescription. 12 On 28 November 2018, Mr Perez’s case manager was notified that Mr Perez had published on Facebook a post concerning an alleged relationship between Ms Stretton and another prisoner. That post was deleted 90 minutes after it was posted. 13 On 29 November 2018, Mr Perez tested positive to non-prescribed buprenorphine. That day, Mr Perez was found in possession of, among other things, an open packet of Suboxone. 14 Mr Perez’s case manager was concerned by Mr Perez’s desire to go on the Suboxone program when there were other pain relief medications appropriately available and Mr Perez was informed he was not to take Suboxone on parole. His case manager received messages from a medical practitioner advising that Mr Perez was seeking to be placed on the Suboxone program. Mr Perez’s case manager reported to the Parole Board that Mr Perez’s engagement on supervision was superficial and he was deceptive about his drug use. 15 On 30 November 2018, the Parole Board issued a warrant and on that day Mr Perez was returned to custody where he remained until 2 April 2019. While in custody, Mr Perez returned a negative test on 3 December 2018. -- 4 of 10 -- [2025] SASC 95 Stein J 3 16 On 2 April 2019, Mr Perez was interviewed by the Parole Board, during which Mr Perez spoke about steps he had taken to address his substance issues in custody. The Parole Board emphasised the need for Mr Perez to be honest and open with his community corrections officer. 17 On 18 April 2019, Mr Perez was referred by his general practitioner for counselling and management including for his post-traumatic stress disorder. 18 On and from 12 May 2019, Mr Perez started voluntarily to attend fortnightly sessions with Drug and Alcohol Services SA during which he acknowledged a history of opioid dependence. 19 On 25 July 2019, Mr Perez returned a positive test to buprenorphine and alcohol and on 29 August 2019 tested positive to ethanol in a random test. At this point, the Parole Board was not prepared to issue a warrant but issued a summons for interview. Mr Perez was interviewed by the Parole Board on 25 September 2019 and warned that a further breach might result in cancellation of his parole. 20 On 17 December 2020, Mr Perez again tested positive to non-prescribed buprenorphine. This occurred again on 25 February 2021, which prompted the Parole Board to issue a summons. On 24 April 2021, the Parole Board agreed to vary Mr Perez’s conditions to enable him to attend his nephew’s 21st birthday party. Mr Perez acknowledged that since 2018 he had illegally used Suboxone. This mostly occurred after supervision and on the weekends to avoid testing positive. Mr Perez was taken into the opioid dependency program as a preventative measure. 21 On 2 June 2021, during an interview by the Parole Board, the Parole Board reinforced Mr Perez’s conditions. 22 During 2021, Mr Perez enrolled in a Bachelor of Mathematics and Industrial Applied Mathematics at university and appeared to be managing well. 23 On 7 October 2022, Mr Perez returned a positive test to methamphetamine and amphetamine. The Parole Board issued a summons for his arrest. Mr Perez attributed his drug use to stress from university studies and caring for his elderly father. 24 On 21 November 2022, Mr Perez was tested but provided only a minimal sample. He admitted he had used methamphetamine prior to that date and had been smoking it once or twice a week for about a year. 25 Mr Perez was taken into custody on 25 November 2022. When interviewed by the Parole Board on 24 January 2023, Mr Perez admitted he had been deceitful and had not used supports available to him. 26 On 13 September 2023, Mr Perez tested positive for methamphetamine and admitted using methamphetamine over three consecutive weekends. Mr Perez was -- 5 of 10 -- [2025] SASC 95 Stein J 4 interviewed again by the Parole Board on 15 December 2023. The Parole Board resolved to defer a decision on alleged breaches, pending receipt of a report. Mr Perez was taken into custody on 18 December 2023 and his parole was cancelled on 28 December 2023 when the Parole Board found two further breaches of his parole by using methamphetamine. The Parole Board considered those breaches were serious breaches of his parole conditions. The Parole Board was provided with a report from Mr Perez’s community corrections officer which, among other things, referred to Mr Perez’s sustained deception in relation to his drug use. Parole Board report 27 Much of the chronology set out above is distilled from a report received from the Parole Board. 28 The Parole Board does not oppose a new non-parole period being set. 29 In the Parole Board report dated 31 March 2025, the Parole Board noted that Mr Perez was enrolled in business studies on a full-time basis. In 2024, Mr Perez was actively involved in the Kairos Inside program, attended prison fellowship regularly, had agreed to participate in the SMART Recovery program for substance abuse and had weekly visits from his family and his committed partner. Mr Perez wished to complete his degree in mathematics. 30 The Parole Board observed that Mr Perez has the support of family, stable accommodation and is an intelligent man, capable of achieving well-remunerated employment. A history of casual sexual relationships, combined with substance abuse, tends to indicate a problematic lifestyle choice and the Parole Board considers Mr Perez’s substance abuse a significant criminogenic factor which is implicated in his offending. The Parole Board stated that until Mr Perez makes a definite commitment to change his lifestyle and address his substance abuse, no amount of counselling or intervention will be helpful. The Parole Board stated that it would like to think that cancellation of his parole has been a sufficiently serious penalty to cause Mr Perez to reflect on his behaviour and conclude he needs to address his substance abuse in his best interests. Submissions of the applicant 31 Mr Perez’s counsel referred to Mr Perez’s good employment history, good relationships with prison officers and good reports about his behaviour. Mr Perez acknowledges that his offending involved drug use and he was sentenced on that basis. Counsel pointed to the only offending since release being the conviction for being in possession of prohibited items in 2019 for which Mr Perez was discharged without penalty. While he self-reported on occasions, Mr Perez was said to be ashamed of his drug use and relapses. 32 Mr Perez has an extremely supportive family including his elderly father who lives in his own property. Mr Perez’s father has been diagnosed with leukaemia -- 6 of 10 -- [2025] SASC 95 Stein J 5 and requires ongoing support. Mr Perez’s counsel submitted Mr Perez will have stable accommodation which is a pro-social factor. Mr Perez will reside with his father and that home will be left to Mr Perez when his father passes. Mr Perez wishes to assist his elderly and struggling father, including with his health condition. 33 Counsel submitted that Mr Perez is very aware of his triggers and that he must be careful with stress, including stress of relationship breakdown, and the need to speak with his support workers about such stress. Mr Perez has been engaging in both group therapy and one-on-one SMART Recovery program sessions, undertaking a prison ministry course, engaging in the Positive Lifestyle Program with the Salvation Army and attending weekly Alcoholics Anonymous sessions consistently since January to apply the techniques taught for his own benefit. 34 Counsel submitted that Mr Perez has been in a meaningful, healthy and committed relationship since 2023, which Mr Perez seeks to continue in the community. His partner visits Mr Perez’s father regularly and conducts videoconference calls with Mr Perez. 35 Mr Perez acknowledges that he is an addict and is undertaking programs and obtaining support. He understands and knows he must continue to be open with his supports in relation to his triggers. 36 Counsel submitted that, even when sentenced for murder with a long non- parole period, Mr Perez was given hope he would be released back into the community. The cancellation of his parole was devastating to him and he realised the potential consequence that he could be required to spend the rest of his life in custody. Counsel contended that Mr Perez’s powerful reaction to receipt of the Parole Board letter cancelling his parole was such that the Court could be satisfied he did not ever want to be in receipt of a letter of that kind again. Submissions of the Director of Public Prosecutions 37 Counsel for the Director did not oppose the fixing of a non-parole period and directed submissions at the principles to be applied in fixing a new non-parole period. 38 Counsel for the Director pointed to the numerous breaches of conditions by Mr Perez and the particular concerns around drugs in light of the circumstances of the offending and Mr Perez’s significant drug addiction which was a strong feature in the original offence of murder. This was particularly significant given Mr Perez’s drug breaches. While accepting that receiving the letter from the Parole Board cancelling his parole may have had a cathartic response, counsel nevertheless pointed to the warnings given to Mr Perez by the Parole Board as a result of which Mr Perez was not left with any uncertainty as to the consequence of further breaches. Counsel for the Director also reinforced the significance of Mr Perez’s substance abuse as a criminogenic factor and the importance of -- 7 of 10 -- [2025] SASC 95 Stein J 6 Mr Perez committing to addressing that substance abuse. The Director acknowledged Mr Perez’s positive pro-social supports. Relevant principles 39 Section 47 of the Sentencing Act 2017 (SA) provides as follows: … (3) If a prisoner is serving a sentence of imprisonment but is not subject to an existing non-parole period, the sentencing court may, subject to subsection (5), fix a non- parole period, on application by the prisoner or the presiding member of the Parole Board. … (5) The above provisions are subject to the following qualifications: (a) a non-parole period may not be fixed— (i) in respect of a person who is liable to serve a total period of imprisonment (or detention and imprisonment) of less than 12 months; or (ii) in respect of a person who is liable to serve a sentence in the community while subject to an intensive correction order; (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; (c) if a person who is subject to a sentence of life imprisonment is further sentenced to imprisonment by the Magistrates Court or the Youth Court, the question of whether a non-parole period should be fixed or extended must be referred to the court by which the sentence of life imprisonment was imposed; (d) if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four-fifths the length of the sentence; (e) a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of— (i) the gravity of the offence or the circumstances surrounding the offence; or (ii) the criminal record of the person; or (iii) the behaviour of the person during any previous period of release on parole or conditional release; or (iv) any other circumstance -- 8 of 10 -- [2025] SASC 95 Stein J 7 40 The principles which apply in relation to the discretion to fix a non-parole period where a person is serving a sentence of imprisonment but is not subject to a non-parole period are well settled. In R v Fricker,1 Peek J set out relevant considerations as including: • the prospects of rehabilitation on parole; • the gravity of the offences on which the offender was imprisoned and then paroled; • the gravity of the breaching offences on which the offender was imprisoned or breach of the designated conditions; • the need to deter the offender and others from commission of offences of the kind in relation to which the prisoner was on parole and offences of the type that breached the parole; • the need to deter the offender and others from breaching parole. 41 In R v Bakewell,2 Kourakis CJ concluded s 47(5)(b) only applies when the court is fixing a non-parole period for the first time. Consideration 42 As the history set out above demonstrates, while on parole, Mr Perez has relapsed into illicit substance abuse. On a number of occasions his drug tests have been positive. He has also admitted to significant use of illicit drugs which was not detected partly as a consequence of deception. 43 While Mr Perez has breached his parole on multiple occasions through illicit substance abuse, he has only received one conviction, being that in 2019 for delivering a prohibited item to a prisoner for which he was discharged without penalty. 44 Mr Perez’s substance abuse is nonetheless of significant concern, especially in light of the link between drug use and the offending for which he was sentenced, being offending of the most serious kind. I accept and agree with the Parole Board’s observations about the importance of Mr Perez making a genuine commitment to, and addressing, his substance abuse without which intervention and counselling will be of little utility. Given the significance of Mr Perez’s breaches of parole conditions through drug use and the associated criminogenic risk, Mr Perez’s insight into his triggers and willingness to be open with his supports is critical. The Parole Board letter, including by reference to Mr Perez’s 2024 annual review report, indicates Mr Perez’s increased levels of awareness. Since his return to custody in late 2023, Mr Perez appears to have taken active, positive steps towards rehabilitation through engaging in the programs to which 1 [2017] SASC 107 at [20], quoting R v Roberts [2016] SASCFC 41. 2 [2022] SASC 39 at [46]-[48] citing R v Brady (2015) 123 SASR 294; R v Fricker [2017] SASC 107. -- 9 of 10 -- [2025] SASC 95 Stein J 8 I have referred above. His voluntary attendance at Alcoholics Anonymous to learn and apply techniques to address his drug difficulties suggests a commitment to facing his substance abuse issues. 45 I am prepared to accept his counsel’s submissions that the Parole Board letter announcing the cancellation of Mr Perez’s parole has had a profound effect on him. In doing so, I have not overlooked that the Parole Board did warn Mr Perez. Since receiving that letter, Mr Perez has spent about 17 months in custody with time to reflect on the potential consequences of the prospect he may not be released. 46 I consider it appropriate to fix a new non-parole period. In doing so, I take into account the steps Mr Perez has taken, including his engagement in the SMART Recovery program and Alcoholics Anonymous. These efforts are a positive step towards Mr Perez addressing his problems with illicit drug use and the associated risk of offending. Nevertheless, Mr Perez will have to translate those efforts into abstinence in the community when faced with the challenges of stressors and triggers. 47 Taking into account the impact of the cancellation of parole upon him, the steps he has taken and the time he has spent in custody, I am satisfied Mr Perez has substantially served a period of time in custody as a sufficient reminder of the critical importance of complying with his parole conditions and the paramountcy of maintaining his abstinence from illicit drug use to ensure he does not further breach his parole conditions. Order 48 Taking into account all the matters to which I have referred, I fix a non-parole period of 18 months, backdated to commence on 28 December 2023. -- 10 of 10 --