R v Andrews - [2022] SADC 13

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ANDREWS
[2022] SADC 13
Reasons for Ruling of his Honour Judge Soulio (ex tempore)
22 November 2021
CRIMINAL
Defendant pleaded guilty to aggravated robbery committed as an adult aged 25 years - defendant's antecedent history included convictions for aggravated robbery when aged 20 years, and convictions for serious criminal trespass as an 11 year old, counts of robbery and aggravated robbery committed as a juvenile aged 15 years - whether defendant falls to be sentenced as a serious repeat offender - question of whether current offending constitutes a third qualifying offence within the meaning of s 53 of the Sentencing Act 2017 - and if so, whether defendant has brought himself within the exception pursuant to s 54(2) of the Sentencing Act such that the serious repeat offender provisions should not apply.
Sentencing Act 2017 (SA) ss 6, 52, 53, 54,55; Criminal Law (Sentencing Act) 1988 (SA) s 3; Young Offenders Act 1993 (SA) ss 23, 29; Criminal Law (High Risk Offenders) Act 2015 (SA) ss 5, 6, referred to.
R v Jackamarra [2013] SASCFC 98; Attorney-General (SA) v Smith [2020] SASC 108; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Attorney-General (SA) v Woods-Pierce & Ors [2021] SASCA 112, considered.

R v ANDREWS
[2022] SADC 13
Introduction

The defendant, Troy Michael Andrews, falls to be sentenced after pleading guilty to an offence of aggravated robbery committed on 3 May 2021. He was arrested on 5 May 2021, after handing himself in to authorities, and has been in custody ever since.
The defendant was born on 25 July 1995. He is now 26 years old. He was 25 years old when the offence was committed. His antecedent history includes a conviction for attempted aggravated robbery committed on 9 March 2014 when he was 20 years old. He was sentenced to imprisonment for three years and three months, with a non parole period of two years.
The defendant also has convictions, as a juvenile, amongst other things, for serious criminal trespass in a place of residence committed on 28 May 2011; and two counts of aggravated robbery committed between 4 and 5 July 2011 when he was 15 years old. He was sentenced to three months detention, and to one year and three months detention, respectively, for that juvenile offending.
Sentencing issue – Serious Repeat Offender?
An issue arises as to whether the defendant now falls to be sentenced as a serious repeat offender. There are two aspects:
First – does the current offending constitute a third qualifying offence within the meaning of s 53 of the Sentencing Act 2017 (‘the Act’).
Second – if so, has the defendant brought himself within the provisions of s 54(2) of the Act such that the serious repeat offender provisions should not apply.
The first issue requires consideration as to whether the offences for which the defendant was sentenced to detention as a juvenile are qualifying offences within the meaning contemplated in s 53 of the Act.
Section 53 provides:
(1)A person is, by force of this subsection, taken to be a serious repeat offender if the person (whether as an adult or as a youth) has committed and been convicted of—
(a) at least 3 serious offences committed on separate occasions (whether or not the same offence on each occasion); or
(b) at least 2 serious sexual offences committed on separate occasions (whether or not the same offence on each occasion).
(2)For the purposes of this section, when determining the number of occasions on which a person has committed a particular kind of offence, the offence for which the person is being sentenced is to be included if it is of the relevant kind.
A serious offence is defined in s 52. The offences committed by the defendant, to which I have referred, all fall within the category of serious offences. The proviso to s 52 however, says:
An offence … listed in para (a) or (b) is not a serious offence unless a sentence of imprisonment (other than a wholly suspended sentence or a sentence that consists only of a community based custodial sentence) has been, or is to be, imposed for the offence;
The issue for consideration is whether a sentence of detention pursuant to the provisions of the Young Offenders Act 1993 is a sentence of imprisonment for the purposes of s 52, and in turn, s 53, of the Act.
Prosecution Position
Counsel for the Director of Public Prosecutions (‘the DPP’) contended that the offences committed when the defendant was a juvenile namely serious criminal trespass, robbery, and aggravated robbery, are qualifying offences, in that the imposition of a sanction of detention is to be equated with a sentence of imprisonment within the meaning of s 52. That is the reference to ‘imprisonment’ should be read as a reference to ‘detention’.
In R v Jackamarra,[1] a decision dealing with the cognate Serious Repeat Offender provisions in the Criminal Law (Sentencing) Act 1988 (‘CLSA’), the issue as to whether only offences dealt with in the adult courts, and which had attracted a sentence of imprisonment, could constitute qualifying offences. The issue did not ultimately need to be decided, given that the provisions insofar as they relied on the prior commission of a qualifying serious sexual offence, did not include a requirement that a sentence of immediate imprisonment had been imposed for the earlier offending. However, in obiter, Vanstone J said:[2]
… There is no indication in the Second Reading Speech (South Australia, Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Bill, House of Assembly, 13 May 2009, page 2700) that there was a greater need for a measure such as this in relation to sexual offences as opposed to non sexual offences. That leads me to the view that Parliament used the word imprisonment in s 20A(3)(b) to encompass detention.
[1] R v Jackamarra [2013] SASCFC 98.
[2] R v Jackamarra [2013] SASCFC 98 at [9].
Counsel for the DPP submitted that s 6(3) of the Act is in practically similar terms to s 3A(3) of the predecessor legislation. She pointed to the observation of Vanstone J that s 3A(3) had the effect of applying the CLSA to the sentencing of youths, and given the provision that ‘a reference to imprisonment is to be read as a reference to detention’,[3] it was unnecessary for Parliament to have specifically stipulated that a sentence of detention would also qualify an offence as a “serious offence”.
[3] In s 3A(3) CLSA.
Counsel for the DPP also relied, in part, on the observations of a judge of this Court in sentencing remarks in a matter of R v Taylor,[4] where the sentencing judge said:
An issue is whether detention is imprisonment for the purposes of Part 3 Division 4 of the Sentencing Act. I find that it is. While in other contexts detention is not imprisonment, the text, context and purpose of Division 4 satisfies me that detention is to be regarded as a form of imprisonment for the purposes of that division.
[4] R v Taylor sentencing remarks delivered 6 September 2021.
Consideration
The observations made when sentencing in R v Taylor are of persuasive assistance, but are not binding. It appears that defence counsel in that matter did not draw to the attention of the sentencing judge the decision of Lovell J in Attorney-General (South Australia) v Smith.[5] There Lovell J was dealing with the High Risk Offender provisions.[6] He noted:[7]
In their ordinary meanings, both imprisonment and detention are defined in terms of a deprivation of liberty. The nature of both penalties is the same; the confinement of a person. As Kirby J stated in Fardon v Attorney-General (Qld), “simply calling the imprisonment by a different name (detention) does not alter its true character or punitive effect”.[8]
[5]     Attorney-General (SA) v Smith [2020] SASC 108.
[6]     Criminal Law (High Risk Offenders) Act 2015.
[7]     Attorney-General (SA) v Smith [2020] SASC 108 at [27].
[8]     Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [165] (Kirby J was in the minority on the result).
However Lovell J went on to say:[9]
Section 6 of the HRO Act clearly states that the HRO Act does not apply to youths. The respondent could not be classified as a “serious sexual offender” at the time he committed the offence as the HRO Act did not apply to him due to his age. He cannot suddenly retrospectively be classified as a “serious sexual offender” for his offending as a youth later in life simply because he has committed further offending as an adult. The use of the expression “sentenced to a period of imprisonment” as opposed to “detention” in s 5(a) of the HRO Act is entirely consistent with the operation of s 6 of the HRO Act. In context, the definition of a “high risk offender” must only apply to those offenders who have served a period of imprisonment, not detention; the meaning of the words in ss 5 and 6 of the HRO Act are clear. To accept the argument of Mr Nguyen for the Attorney-General would require giving the expression “period of imprisonment” a wider meaning than is warranted when considering the purpose of the text in context. It is not a case of asking what Parliament would have intended in these circumstances. The proper question is: “Does the intended meaning of the words used by Parliament extend to these circumstances?”. The answer is clearly no. The HRO Act only applies to those persons who have been sentenced to a period of imprisonment, not detention.
[9] Attorney-General (SA) v Smith [2020] SASC 108 at [36].
It is to be observed that s 6(3) of the Act, by sub-placitum (a) provides:
(1) Subject to a provision of this Act to the contrary, this Act applies in relation to the sentencing of a youth and the enforcement of a sentence against a youth.
...
(3) In applying a provision of this Act to a youth who is being or has been dealt with as a youth (and not as an adult)—
(a) a reference to imprisonment is to be read as a reference to detention; and …
However, the section specifically addresses the sentencing of a youth, or the enforcement of a sentence against a youth. That has work to do in the context of considering a declaration under s 55 of the Act as to whether a youth is to be declared a recidivist young offender. Section 55 operates differently to s 53 in that a declaration under s 55 is discretionary – that is, the youth is liable to be declared such, and the court must consider whether to make such declaration. In doing so, the court takes into account ‘the youth’s history of offending’ which appears to encompass the entire history of offending. If the recidivist young offender is being dealt with in the Youth Court, the limitations relating to a sentence of detention under s 23 of the Young Offenders Act 1993 still apply.
In dealing with adults, if the qualifying offences have been committed, the adult offender ‘is, by force of this sub-section, taken to be a serious repeat offender’.[10]
[10] Sentencing Act 2017 s 53(1).
Further, the sentencing remarks in R v Taylor were made prior to the decisions of the Court of Appeal in Attorney-General (SA) v Woods-Pierce & Ors.[11]
[11] Attorney-General (SA) v Woods-Pierce & Ors [2021] SASCA 112.
There the Court of Appeal was also dealing with Extended Supervision Orders (‘ESO’) under the the Criminal Law (High Risk Offenders) Act 2015 (‘HRO Act’). The Court held that a court may make an ESO in relation to a person who was a youth at the time they committed the qualifying offending, ‘but was sentenced as an adult to a period of imprisonment.’
Each of the defendants dealt with in Attorney-General (SA) v Woods-Pierce & Ors had previously been committed to the District Court for sentencing as an adult pursuant to s 219 of the Young Offenders Act.
The Court of Appeal said:[12]
The first [issue] arises from the requirement in s 5 of the HRO Act that the offender “was sentenced to a period of imprisonment”, or “is serving a sentence of imprisonment”. The issue of construction to which this requirement gives rise is whether the word “imprisonment” in this context extends to any form of custodial confinement, or whether it is limited to incarceration in a prison. The former construction would mean that a person who has been detained in a youth detention centre may qualify as a high risk offender. The latter construction would mean that a person who committed offences as a youth would only qualify as a high risk offender if he or she was sentenced, on an exceptional basis under the YO Act, to a period of imprisonment. (citations omitted)
As will be seen, this first issue was resolved in favour of the latter construction by Lovell J in Attorney-General (SA) v Smith.[13] We agree with this construction of the word “imprisonment” under s 5 of the HRO Act, and it was not challenged in the present appeals.
[12] Attorney-General (SA) v Woods-Pierce & Ors [2021] SASCA 112 at [28]-[29].
[13] Attorney-General (SA) v Smith [2020] SASC 108.
The background to the decision of Lovell J in R v Smith is set out in Attorney-General (SA) v Woods-Pierce & Ors as follows:[14]
Mr Smith was convicted of two counts of rape (a serious sexual offence for the purposes of the HRO Act) that he committed when 15 years of age. He was sentenced to a period of youth detention for this offending. Over a decade later, when he was an adult, Mr Smith was convicted of three counts of possessing child exploitation material contrary to s 63A of the CLCA. This offending did not constitute a ‘serious sexual offence’, but was qualifying offending for the purposes of s 5(b)(i) of the HRO Act. However, in order for the trigger in s 5(b)(i) to be enlivened, it was also necessary that Mr Smith be a person referred to in s 5(a) (that is, “a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence”).
The application for an ESO in relation to Mr Smith raised, and indeed turned upon, the first construction issue identified earlier in these reasons. Mr Smith argued that he did not qualify as a high risk offender because he had not been “imprisoned” for the serious sexual offending. Instead, he had been sentenced to youth detention. The Attorney-General submitted that the term “imprisonment” had a wide and non-technical meaning that included any form of deprivation of liberty or confinement such that it extended to youth detention.
Lovell J determined this issue in favour of Mr Smith, and against the construction contended for in that case by the Attorney-General, holding that “the HRO Act only applies to those persons who have been sentenced to a period of imprisonment, not detention.”[15]
The Attorney-General now accepts the correctness of this conclusion in relation to the construction of s 5 of the HRO Act. As we have already mentioned, we consider that this concession was properly made.
[14] Attorney-General (SA) v Woods-Pierce & Ors [2021] SASCA 112 at [33]-[36].
[15] Attorney-General (SA) v Smith [2020] SASC 108 at [36].
Conclusion
I take the view, for the reasons expressed by the Court of Appeal in Woods-Pierce,[16] and Lovell J in Smith,[17] albeit in relation to a different legislation, that in determining whether the defendant here is a serious repeat offender, only qualifying offences for which he had been sentenced to imprisonment, rather than detention as a youth, are to be taken into account.
[16] Attorney-General (SA) v Woods-Pierce & Ors [2021] SASCA 112.
[17] Attorney-General (SA) v Smith [2020] SASC 108.
Otherwise, to construe detention as a youth as equal to imprisonment as an adult, for the purposes of s 54, would carry the potential consequence, for example, of a youth sentenced to one week of detention on two occasions for ‘house breaks’ as the age of 14, being sentenced as a serious repeat offender if convicted of trafficking in drugs on a single occasion at the age of 40. Given the retrospective operation of the legislation, I hold the view that that could not have been intended.
Further, it seems to me that if the interpretation contended for by counsel for the DPP is correct, that potentially means that a youth who had committed three qualifying offences, and been sentenced to detention as a youth, rather than imprisonment as an adult for such offending, would immediately, upon reaching the age of 18 years, automatically be a serious repeat offender when being sentenced thereafter for any offence.[18] Again, I hold the view that that could not have been intended.
[18] The application of s 54(1) is not restricted to sentencing for serious offences.
I find that the defendant is not to be sentenced as a serious repeat offender on the basis that his conviction for the subject offending constitutes his second, not his third, serious offence within the meaning of s 53 of the Act.
In the event that is not a correct interpretation of the legislation I will give consideration as to whether the defendant has brought himself within the provisions of s 54(2) of the Sentencing Act in the course of the sentencing remarks which follow.