R v Curtis (No 2)

Case [2009] SASC 350

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v CURTIS (No 2)

[2009] SASC 350

Reasons for Sentence of The Honourable Justice Gray

23 November 2009

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - PROTECTION OF COMMUNITY

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

CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - HABITUAL CRIMINALS - DISCRETION TO MAKE DECLARATION

Defendant convicted of manslaughter - prosecution applied, pursuant to section 20B of the Criminal Law (Sentencing) Act 1988 (SA), that the defendant be declared a serious repeat offender - operation of section 20B - whether defendant liable to be declared a serious repeat offender - whether defendant's history of offending warrants particularly severe sentence in order to protect the community.

Held: application granted - defendant declared to be serious repeat offender - defendant's history of offending warrants declaration.

Criminal Law (Sentencing) Act 1988 (SA) Pt III, s 20, s 20A, s 20B and 32(5)(ba); Criminal Law (Sentencing) (Serious Repeat Offenders) Amendment Act 2003 (SA); Criminal Law Consolidation Act 1935 - 1957 (SA) s 319 and 321; Habitual Criminals Act 1957 (NSW); Penalties and Sentences Act 1992 (Qld) s 161B; Sentencing Act 1991 (Vic) s 18A; Sentencing Act 1995 (WA) s 98; Sentencing Act 1997 (Tas) s 19; Sentencing Act 1995 (NT) s 65, referred to.
R v Tjami (2000) 77 SASR 514; Hoare v R (1989) 167 CLR 348; Strong v R (2005) 224 CLR 1; R v Tregaskis [1937] SASR 358; R v Cook [1955] SASR 304; R v White [1962] SASR 114; R v White [1967] SASR 184; R v White (1968) 122 CLR 467; R v Williams (2006) 96 SASR 226; R v Robinson [2003] SADC 182; R v Robinson [2004] SASC 189, considered.

R v CURTIS (No 2)
[2009] SASC 350

Serious Repeat Offender

GRAY J.

  1. On 28 July 2009, the defendant Leon Curtis was found guilty by unanimous jury verdict of manslaughter. 

  2. At the time of sentencing submissions, the prosecution sought, pursuant to section 20B of the Criminal Law (Sentencing) Act 1988 (SA), that the defendant be declared a serious repeat offender.

  3. On the hearing of the application a number of reports were tendered by consent.  The facts and circumstances contained in those reports were accepted as accurate.  The materials before the Court included an antecedent report, pre-sentence reports dated 25 August 2009, 10 August 2006 and 4 June 2004, parole reports dated 17 September 2007 and 27 October 2004, a bail enquiry report dated 27 September 2002, psychiatric reports dated 11 June 2009 and 28 May 2009, parole board correspondence, the victim impact statement of the victim’s sister and certificates of record from previous appearances at the Magistrates Court.

    Background

  4. The defendant is an Aboriginal man born on 8 January 1979 in Alice Springs.  He is now 30 years of age.  The defendant moved with his…

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AGLC
R v Curtis (No 2) [2009] SASC 350
Case
[2009] SASC 350
Decision Date

CaseChat Overview and Summary

The case of R v Curtis (No 2) involved a defendant convicted of manslaughter, with the prosecution seeking a declaration under section 20B of the Criminal Law (Sentencing) Act 1988 (SA) that the defendant be classified as a serious repeat offender. The key legal issues revolved around the application of section 20B, determining whether the defendant was eligible for such a declaration, and assessing whether his history warranted a particularly severe sentence to protect the community.

The court considered the defendant's extensive criminal history, which included multiple convictions for assault occasioning actual bodily harm, committed against a vulnerable woman in a domestic relationship. The nature and frequency of these offences, along with the significant violence involved, formed the basis of the prosecution's application. The court examined the statutory criteria and the precedent set by cases like R v Tregaskis and R v Cook, which highlighted factors such as the number and seriousness of previous offences, the intervals between them, and any efforts by the offender to live honestly.

After reviewing the defendant's history and the statutory framework, the court concluded that the defendant's repeated acts of serious violence, particularly against a vulnerable woman, justified a declaration under section 20B. The court determined that the defendant's extensive history of offending warranted a particularly severe sentence to adequately protect the community, including the Aboriginal community in which he lived.

The court granted the prosecution's application, declaring the defendant a serious repeat offender. This decision underscores the importance of considering the offender's history and the need to protect the community from serious repeat offenders.

Orders

Orders of the court

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Background

Background to the litigation

On the hearing of the application a number of reports were tendered by consent. The facts and circumstances contained in those reports were accepted as accurate. The materials before the Court included an antecedent report, pre-sentence reports dated 25 August 2009, 10 August 2006 and 4 June 2004, parole reports dated 17 September 2007 and 27 October 2004, a bail enquiry report dated 27 September 2002, psychiatric reports dated 11 June 2009 and 28 May 2009, parole board correspondence, the victim impact statement of the victim’s sister and certificates of record from previous appearances at the Magistrates Court.Background The defendant is an Aboriginal man born on 8 January 1979 in Alice Springs. He is now 30 years of age. The defendant moved with his family to the Anangu Pitjantjatjara Lands when approximately five years of age. After his parents separated in his early childhood, he at times resided with his mother at Yalata, but spent most of his time with his father in Coober Pedy. The defendant’s antecedents are extensive and commenced when he was a juvenile. Of significance, the antecedent report records numerous convictions for common assault and a number of convictions for committing assault occasioning actual bodily harm. On 2 May 2000 the defendant was convicted of two charges of assault occasioning actual bodily harm and a sentence of 12 months imprisonment was imposed. Similarly, on 8 June 2004, the defendant was convicted of the charge of assault occasioning actual bodily harm and sentenced to five months imprisonment. On 15 August 2006, the defendant was again convicted of the charge of assault occasioning actual bodily harm and was sentenced to a term of imprisonment of two years and three months. The offence committed in 2000 was said to have involved a male victim and related to an incident in or near a hotel. However the convictions for the assaults occasioning actual bodily harm in 2004 and 2006 both involved domestic violence against the de facto partner of the defendant. The victim of these offences was also the victim of the charge of manslaughter the subject of these proceedings. The pre-sentence report in relation to the 2004 offence records that the defendant was intoxicated at the time. The defendant indicated that he became violent when he consumed alcohol and that he had previously been violent towards his de facto partner on other occasions. A later bail report notes that the defendant would become violent towards his friends, relatives and immediate family when intoxicated. The 2006 offence involved serious injury to the defendant’s de facto partner, including stab wounds. The pre-sentence report contained the following account of the offence:… [The defendant] stated that [the victim] was continually following and tormenting him. He decided he had had enough so picked up a tyre rim that was nearby and lashed out at her. He admits that he laid many blows to various parts of her body, including her head. [The defendant] claimed he did not know how badly hurt she was although he said he did see that she was bleeding and hurt. He was not able to explain why he did not provide any medical assistance to her or advise anyone she had been hurt. Upon reflection, [the defendant] reluctantly admitted that he was fortunate to not have killed her. He also admitted that, other than [the victim’s] taunts, the blows were unprovoked.…He admitted that whenever he assaulted her, he would use whatever object was in the immediate vicinity and use that to inflict injuries to her. He also admitted that when he did this, he would aim for her head or any part of her body that was exposed. Again, he admitted that this assault was not provoked other than she annoyed or tormented him.According to the pre-sentence report, the NPY Women’s Council Domestic Violence Service had made the unfortunate prophecy that the defendant would not stop assaulting his de facto partner until he eventually killed her.

Evidence

Evidence Before The Court

In Tregaskis,[11] a case involving the exercise of the discretion to declare an offender a habitual criminal pursuant to section 319 of the Criminal Law Consolidation Act, similar factors were considered. Section 319 relevantly provided that “when any person is convicted… of an offence” (of a class defined in a schedule) and “has been previously convicted on at least three previous occasions of an offence [of that class]” the “judge may, in his discretion, declare … that such person is an habitual criminal”. The declaration effectively enabled the preventative detention of the habitual criminal after the expiration of the term fixed by the sentence.[12] The Court observed that:[13]…the practice is that the declaration is not made, unless it appears to the Judge that the prisoner has been leading a persistently dishonest or criminal life. For that purpose the criminal record will frequently, if not generally, afford sufficient prima facie evidence of the fact: that is, if the crimes are numerous and serious, and the intervals – between the discharge from prison and the commission of the subsequent crimes – are short. But, on the other hand, if there should be any considerable interval between the convictions it is possible that further evidence would be required, and certainly any genuine attempt by the prisoner to live honestly should receive serious consideration. The matters to be considered are the nature and the number of the crimes committed, and the intervals between them, together with any evidence that may be forthcoming of any effort to live honestly.[Emphasis added][11] R v Tregaskis [1937] SASR 358 at 359 (Angas Parsons, Napier and Cleland JJ).[12] Criminal Law Consolidation Act 1935- 1952 (SA) section 321. [13] R v Tregaskis [1937] SASR 358. These factors were considered in Cook,[14] an appeal from a declaration under section 319 of the Criminal Law Consolidation Act that the appellant was a habitual criminal. In delivering the judgment of the Court, Napier CJ emphasised the relative youth of the offender and the minor nature of his previous convictions:We feel some difficulty with respect to the appeal. We agree with Abbott J. that the appellant has brought himself within the terms of s. 319, and that for the last five years he has been leading a persistently dishonest and criminal life. It follows that he has qualified for the declaration in the terms of the section (R. v. Tregaskis), but the difficulty that we feel is, first, that five years is not a long record, as these things go; secondly, we gather that his past offences have generally been in the nature of petty thefts; and, lastly, the appellant is, even now, little more than a boy.…it seems to us that, in practice, our statute is mainly directed to preventive detention, and we think that… the declaration, which involves preventive detention, “should be regarded as an exceptional sentence and not one to be given merely in lieu of imprisonment” (R. v. Askew). …We feel, as we have said, grave hesitation in disturbing the sentence imposed by the trial Judge, but we think that there is a question of principle to be considered. It seems to us that the age of the offender ought to be taken into account. We are not to be understood as holding that this is, in itself, conclusive, but we attach some importance to the fact that the previous convictions have been for – relatively speaking – petty crimes. We agree that they disclose a criminal tendency and a persistence in crime, but we think that they can hardly be described as the work of a “professional criminal.” We agree that the public must be protected, and, if the appellant persists in this course of conduct, he cannot expect any further consideration, but on this occasion, we think that it will be sufficient to impose a substantial term of imprisonment. [Emphasis added][14] R v Cook [1955] SASR 304 at 306.

Decision

Reasons for decision

GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J

It appears clear that as long as the offence under consideration was committed after 27 July 2003, previous offences may be taken into consideration in order to determine whether a declaration is warranted. As Nyland J observed, if convictions recorded prior to the passing of the legislation were not to be taken into account, it would have the effect of stultifying the intended operation of the provisions for some years.Consideration of the Application Counsel for the defendant submitted that the Court should be cautious before making a declaration that a traditional Aboriginal man is a serious repeat offender. Counsel contended that in light of the state of traditional Aboriginal life in its interface with western society, a traditional man such as the defendant is not armed with the knowledge expected to be held by his non-indigenous counterparts. Counsel further submitted that the operation of section 32(5)(ba) of the Sentencing Act achieves the same result as section 20B(4)(b) and that, in light of the foregoing, the Court should find that the mandatory minimum non-parole period is sufficient, without the need to turn to issues of proportionality raised by section 20B(4)(a). Counsel for the prosecution submitted that, given that statutory pre-conditions are satisfied, the Court must consider making a declaration that the defendant is a serious repeat offender. Counsel contended that the thrust of the legislation is not simply the protection of the wider community, but also the community in which the defendant lives. Counsel submitted that the defendant has shown a propensity to exhibit violence, particularly against women, in the Aboriginal community in which he lives and that there is a real need to protect Aboriginal women in this community in the future. I have reached the conclusion that section 20B is enlivened and the defendant is liable to be declared a serious repeat offender. He has committed on at least three separate occasions a serious offence for which he received a sentence of imprisonment which was not suspended; namely, the convictions for charges of assault occasioning actual bodily harm in 2000, 2004 and 2006. The offence of manslaughter constitutes the defendant’s fourth serious offence committed on a separate occasion. Assault occasioning actual bodily harm is a “serious offence” as defined in section 20A of the Sentencing Act. That definition includes an offence against a person under part 3 of the Criminal Law Consolidation Act.[33] It is to be observed that section 20B(3) of the Sentencing Act provides that an offence for which an offender is to be sentenced can be included as one of the three offences committed on separate occasions. As a consequence, the conviction for manslaughter could qualify as the third relevant offence if any issue as to retrospectivity arose.[33] Criminal Law Consolidation Act 1935 (SA) section 20(4). Note that the maximum offence for assault causing harm is five years: section 20(4)(c). As outlined above, the antecedent record of the defendant is very poor. These antecedents include numerous convictions for assault in addition to the offences of assault occasioning actual bodily harm discussed earlier. A disturbing feature of his history is that a number of the serious offences he has perpetrated have been committed against a vulnerable woman in a domestic arrangement. These offences have involved the significant use of violence and force.