R v Bechara

Case [2014] SASCFC 36

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BECHARA

[2014] SASCFC 36

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Vanstone)

10 April 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER

The appellant appeals against the sentence imposed in the District Court on his conviction of a number of serious commercial drug related offences. The offending consisted of four separate incursions into criminal activity over a period of about thirteen months.

The sentencing Judge declared the appellant to be a serious repeat offender pursuant to s 20B(3) of the Criminal Law (Sentencing) Act 1988 (SA). Having made that declaration, the Judge sentenced the appellant to a term of imprisonment of 22 years and six months, cumulative on the seven months and 5 days unexpired balance of a previous sentence. A total period of 23 years, one month and five days imprisonment was imposed and backdated to commence on the date that the appellant was taken into custody. In accordance with s 20BA of the Criminal Law (Sentencing) Act 1988 (SA), a non-parole period of 18 years was imposed.

The appellant appeals on the grounds that the sentence was manifestly excessive and that the Judge erred in making a serious repeat offender declaration. The appellant also complains that the Judge erred in various other respects.

Held (Kourakis CJ and Sulan J agreeing):

The Judge had regard to the wrong maximum penalty for the offence of trafficking in methylamphetamine and, therefore, the sentencing discretion miscarried (Kourakis CJ at [6]).

The Judge made an error of law when he considered the application to declare the appellant a serious repeat offender, in that he failed to address one of the conditions on which the statutory power rests; whether the offender’s history warrants a particularly severe sentence in order to protect the community (Kourakis CJ at [31]).

The serious repeat offender declaration was not necessary to adequately protect the community. Applying ordinary sentencing principles, the appellant would be sentenced to the same term of imprisonment as that imposed by the Judge (Kourakis CJ at [6]).

The head sentence imposed by the Judge is the sentence which should have been imposed. In the absence of s 20BA of the Criminal Law (Sentencing) Act 1988 (SA), a non-parole period of three quarters of the head sentence is fixed; the non-parole period is reduced to 17 years and 3 months imprisonment (Kourakis CJ at [73]).

Appeal allowed; the sentence fixed by the Judge and the s 20B declaration set aside; a sentence of 23 years, one month and five days imprisonment with a non-parole period of 17 years and 3 months imposed (Kourakis CJ at [74]). 

Vanstone J (dissenting):

It was open to the sentencing Judge to…

Continue reading R v Bechara

Sign in free to access the full text

Details
AGLC
R v Bechara [2014] SASCFC 36
Case
[2014] SASCFC 36
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against a sentence and a declaration made under section 20B of the *Sentencing Act* (SA) concerning the appellant, who was convicted of serious drug trafficking offences. The sentencing judge had declared the appellant a serious repeat offender and imposed a sentence of 22 years and six months imprisonment with a non-parole period of 18 years, noting that the appellant had committed further serious drug offences while on parole and then while on bail for those offences. The offences involved large quantities of drugs and money, and a police task force was established to investigate.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the sentencing judge erred in making the serious repeat offender declaration and whether the sentence imposed was appropriate. Specifically, the court considered whether the judge had properly applied the criteria in section 20B(3)(b) of the *Sentencing Act*, which requires the court to be of the opinion that the offender's history of offending warrants a particularly severe sentence in order to protect the community. The court also considered the impact of a conceded error regarding the applicable maximum penalty on the declaration and the sentence.

The court reasoned that while the appellant's history of offending, including committing offences while on parole and bail, was serious, the sentencing judge had failed to adequately address the specific condition in section 20B(3)(b) of the *Sentencing Act* regarding the necessity of a particularly severe sentence for community protection. The court also noted that the serious repeat offender declaration, once made, has an independent existence, but in this instance, the sentence under appeal was inextricably linked to the declaration. Consequently, the court allowed the appeal to the extent of setting aside the original sentence and the section 20B declaration.

The Full Court imposed a new sentence of 23 years, one month, and five days imprisonment, with a non-parole period of 17 years and three months. This adjustment was made after setting aside the serious repeat offender declaration, meaning the sentence no longer had to comply with the four-fifths minimum non-parole period requirement of section 20BA(1)(b) of the *Sentencing Act*. The court determined that a non-parole period of three-quarters of the total head sentence was appropriate, taking into account the appellant's poor prospects of rehabilitation but also his advanced age upon eventual release.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In the course of his sentencing remarks the Judge referred to the appellant’s counsel’s submission, that the appellant had embarked on the offending to clear his brother’s gambling debts as well as debts which the appellant owed to criminals. It is not clear whether or not the Judge accepted the submission but if that was the appellant’s initial motivation it is clear from the evidence that his involvement in drug trafficking had extended well beyond its early purpose by the time he was apprehended. The appellant’s counsel, rightly, did not advance that circumstance as a mitigating factor. If it had been advanced as a mitigating factor, the onus would have fallen on the appellant to prove it on the balance of probabilities.The Appellant’s Personal Background At the time of sentencing the appellant was 44 years of age, having been born in Lebanon on 10 August 1968. He is married with two children aged about 22 and 16 years. He received a private school education in Adelaide until, at age 14, he left school to become involved in business activities. The appellant’s wife suffers from severe autoimmune disease which has resulted in major functional limitations and an incapacity to undertake domestic duties and to care for their two children. The appellant was also one of several carers of his father who has been left in a vegetative state by catastrophic injuries suffered in a car accident. In 1996 the appellant was convicted of possession of cannabis for sale and he received a suspended sentence. In March 2001 in Perth the appellant was convicted of possession of heroin for sale and was sentenced to 10 years imprisonment. On the appellant’s prison transfer to South Australia from Western Australia, a non-parole period was fixed in the District Court of this State which resulted in the appellant’s release on parole on 30 June 2003. The relatively early release of the appellant on that sentence was the result of judicial leniency extended because of the medical condition of his wife. The appellant committed the Allenby Gardens and Gepps Cross cannabis offences whilst still on parole for the Western Australian offending. The appellant was arrested for the cannabis offences on 26 August 2010 and subsequently granted bail. The second offence of trafficking in methylamphetamine and the cocaine offending were committed whilst the appellant was on bail. Indeed the second offence of methylamphetamine trafficking was committed even though the home of the appellant’s Queensland buyer had been searched by police on 27 August 2010. The appellant was arrested in relation to the methylamphetamine and cocaine offences on 2 February 2011 and has been in custody since that time. The Appellant’s Sentence The Judge gave the following reasons for making a serious repeat offender declaration pursuant to s 20B of the Sentencing Act:There is no doubt that, having committed these offences, that section [s 20B of the Sentencing Act] does apply to you, and [defence counsel] conceded as much today.I must therefore decide whether a particularly severe sentence is warranted in order to protect the community from your offending.I have had regard to what his Honour Sulan J said in R v Williams, and in particular the factors his Honour outlined there, the number of prior offences, the seriousness of those offences, your age and prospects of rehabilitation, time which has elapsed since your previous convictions, the likelihood of re-offending, and the reason why it is necessary to protect the community by a particularly severe sentence.It seems to me that you should be the subject of such a declaration. Having been paroled for a particularly serious drug trafficking offence, you committed further serious drug offences while on parole, and committed further serious drug offences while on bail for those offences.All the offences were on a large scale, involving large amounts of money, and were masterminded and orchestrated by you. Your activities were so serious that a specific police task force was set up to investigate. Considerable resources at great public expense were directed towards the detection of these crimes.It seems to me that that type of offending is the very type of offending which this piece of legislation was intended to deal with. It is the type of offending which does call for a particularly severe sentence to act as both a personal and general deterrent, and to signal the disapproval of the community of this type of criminality.It also signals that because of your preparedness to offend whilst on parole and whilst on bail, a sentence with a particularly long non-parole period is called for.I therefore declare you a serious repeat offender. It follows then that the sentence I impose need not be proportionate to the seriousness of the particular crimes for which you are to be sentenced and the non-parole period must be four fifths of the sentence.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There remains the question of the appellant’s non-parole period. The Judge fixed a non-parole period of 18 years in order to comply with the four-fifths minimum requirements proposed by s 20BA(1)(b) of the Sentencing Act. That maximum requirement is no longer applicable by reason of the setting aside of the serious repeat offender declaration. The need for a more severe sentence for the purposes of s 20B(3)(b) of the Sentencing Act is to be determined by reference to the head sentence. So much is clear because the Court has a wide discretion to fix a very high, non-parole period, indeed to decline to fix one at all even in the absence of s 20BA of the Sentencing Act. Moreover the close supervision of conditional parole in itself provides a measure of community protection. Nonetheless, the appellant’s prospects of rehabilitation judged by his past conduct are very poor. However, given the advanced age he will have attained on his eventual release I would fix a non-parole period of three quarters of his total head sentence.Conclusion I would allow the appeal for the limited purpose of reducing the non-parole period. The orders I would make are:·Appeal allowed.·Set aside the sentence fixed by the Judge and the s 20B declaration.·Impose a sentence of 23 years, one month and five days with a non-parole period of 17 years 3 months commencing on 2 February 2011. SULAN J: I agree with the reasons of the Chief Justice and with the orders that he proposes. I make the following observation. In R v Williams,[20] I stated that I considered it to be only appropriate to make a declaration if the Court is satisfied that a disproportionate sentence is required to protect the community. I observed that, only in rare cases, will the Court be justified in departing from the recognised principle of proportionality. In making that statement, and in my reasons,[21] I made it clear that the declaration should only be made in circumstances in which the sentencing Judge considered that a disproportionate sentence was required for the offence with which the Judge was dealing, in order to protect the community. [20] (2006) 96 SASR 226 at [68]-[69].[21] See (2006) 96 SASR 226 at [66]-[67]. The maximum penalties for serious offenders are sufficiently high to give judges a wider discretion to impose significant penalties for defendants who repeatedly break the law. A judge is also given a wide discretion in setting a non-parole period. It may well be justified, in cases of a person who repeatedly offends, to set a non-parole period of four-fifths the head sentence, or more, without the sentence being disproportionate to the offending. There may be cases where a disproportionate sentence is required for the protection of the public but, in my view, those cases would be rare. VANSTONE J: I have had the benefit of reading the reasons in draft form of the Chief Justice. As his Honour observes, in R v Jackamarra [2013] SASCFC 98, I set out my reasons for concluding that a serious repeat offender declaration might be made irrespective of whether the sentence to be imposed could be justified on usual sentencing principles. Since the Chief Justice has quoted from my reasons there is no need for me to elaborate on the position I took.

Ratio Decidendi

Legal Principle Established

Once made, a serious repeat offender declaration enlivens s 20BA if the person so declared falls to be sentenced for other offences in the future.[4] It follows that an order made pursuant to s 20B of the Sentencing Act has an existence independently of the sentence it first affects. Nonetheless, the sentence under appeal was fixed by reference to s 20B of the Sentencing Act. The product of that process is, in this case, the sentence of 22 years and six months with a non-parole period of 18 years. The initial making of a serious repeat offender declaration is inextricably linked to the fixing of the sentence for the offence in respect of which the declaration is made. In this case, that sentence is affected by the error conceded by the Director and it falls to this Court to review both the sentence and the declaration. [4] R v Jackamarra [2013] SASCFC 98, [60] & [101].Serious Repeat Offender Declarations Even if I be mistaken in thinking the effect of the error as to the applicable maximum vitiates the serious repeat offender declaration, I am in any event satisfied that the Judge made an error of law in his consideration of the application of s 20B of the Sentencing Act by failing to address one of the conditions on which the statutory powers rests; namely, whether the offender’s history “warrants a particularly severe sentence in order to protect the community”. Before explaining why I would so hold, it is convenient to set out the terms of s 20B and s 20BA of the Sentencing Act. They provide:20B—Serious repeat offenders(a1)A person will, by force of this subsection, be taken to be a serious repeat offender if the person (whether as an adult or as a youth)—(a) has committed on at least 3 separate occasions a category A serious offence to which this Division applies (whether or not the same offence on each occasion); and(b) has been convicted of those offences.(1)Without limiting subsection (a1), a person is liable to be declared a serious repeat offender if the following conditions apply:(a) the person (whether as an adult or as a youth)—(i)has committed on at least 3 separate occasions an offence to which this Division applies (whether or not the same offence on each occasion); and(ii)has been convicted of those offences; or(b) the person (whether as an adult or as a youth)—(i)has committed on at least 2 separate occasions a serious sexual offence against a person or persons under the age of 14 years (whether or not the same offence on each occasion); and(ii)has been convicted of those offences; or(c) the person (whether as an adult or as a youth)—(i)has committed on at least 2 separate occasions a category A serious offence (whether or not the same offence on each occasion); and(ii)has been convicted of those offences.(1a)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.(3)If a court convicts a person of a serious offence, and the person is liable, or becomes liable as a result of the conviction, to a declaration that he or she is a serious repeat offender, the court—(a) must consider whether to make such a declaration; and(b) if of the opinion that the person's history of offending warrants a particularly severe sentence in order to protect the community—should make such a declaration.20BA—Sentencing of serious repeat offenders(1)The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):(a) the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;(b) any non parole period fixed in relation to the sentence must be at least four fifths the length of the sentence.(2)However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—(a) his or her personal circumstances are so exceptional as to outweigh the primary policy of the criminal law of emphasising public safety; and(b) it is, in all the circumstances, not appropriate that he or she be sentenced as a serious repeat offender.