R v Curtis (No 2) - [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.

On 28 July 2009, the defendant Leon Curtis was found guilty by unanimous jury verdict of manslaughter.
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.
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.
The parole report subsequent to the 2006 offences outlined that the defendant generally blamed the victim for his offending and this attitude to his offending had not altered over time:
[The defendant] continues to exhibit projection of blame onto the victim, minimising of harm to the victim, failure to acknowledge his role in violent altercations between he and the victim, and denial of the potential for further harm to the victim, should their relationship continue. [The defendant] has continued to resist acknowledging responsibility for his own violence, and this is a theme which has also been observed in [the defendant’s] statements pertaining to earlier offences. He has exhibited cognitive distortions in as much as he rationalises and justifies his offending by blaming victim provocation.
The report went on to highlight that the defendant continually demonstrated “pro-criminal attitudes” supportive of further violence towards not only the victim, but any potential domestic partner. The report noted that despite these attitudes having been challenged throughout his contact with community corrections and institutions, they remained unchanged. Most significantly, the report outlined that the defendant appeared to believe that provocation entitled a violent response.
It is instructive to note that the relationship between the defendant and his previous de facto partner was also characterised by violence.
The crime of manslaughter for which the defendant was convicted involved the killing of his de facto partner by an unlawful and dangerous act. The unchallenged evidence led at trial established that the victim was bludgeoned to death in a prolonged brutal attack. She suffered numerous wounds. Her autopsy demonstrated that she suffered 58 separate injuries, many of these being severe lacerations to her head. The evidence indicated that the injuries and wounds from which she died were caused by a number of weapons.
Although there was a possibility that others were involved in the attack on the victim, the evidence established that the defendant was responsible for the infliction of a number of the wounds and injuries. The defendant’s conduct was unlawful and a cause of the victim’s death.
The defendant’s offending was aggravated by the fact that at the time of the offence, the defendant was on parole in relation to a previous serious assault upon his de facto partner. The defendant was released on parole on the condition that he not have contact with her.
The pre-sentence report prepared in relation to his present offending records the defendant’s history of substance abuse and acts of violence when affected by alcohol. According to the pre-sentence report, the defendant suffers an ongoing and serious alcohol abuse problem. The defendant has also used cannabis and in his adolescence was a heavy petrol sniffer. It appears that this history of substance abuse has been a direct contributing factor to the defendant’s violence in a domestic setting. These observations correlate with those in the earlier reports which clearly link the defendant’s offending with substance abuse.
The pre-sentence report highlights that the defendant’s violence has been explosive, impulsive and reactive, and the author observed:
This tends to indicate that he is unable or unwilling to inhibit his reactions to provocation by the victim, and his failure to acknowledge consequences of his actions, are significant cognitive factors in the offending. The frequency with which assault has featured in his criminal antecedents indicates that these issues may be long-term offence-related factors for [the defendant].
All available reports indicate that the defendant takes no responsibility for his offending and instead projects blame on the victim. There is no record of the defendant attending community-based programs designed to address his risk of re-offending, although some programs in respect of Alcohol and Other Drugs were undertaken. Notwithstanding referrals to multiple programs to address his violence and anger management issues, these programs were not undertaken. The reports confirm that the defendant has been aware of the support services in his local community but has chosen not to access these services. The 2007 parole report notes that the defendant is minimally motivated to undertake any intervention and does not appear to believe this is necessary.
Several reports present a picture of the defendant as a person requiring support, suffering the consequences of unemployment and substance abuse. The reports suggest that the defendant may have suffered some degree of organic brain damage as a consequence of his earlier problem with petrol sniffing. A recurring theme arising in the reports is the recommendation to have the defendant’s level of cognitive function accurately assessed. However, notwithstanding the concerns as to his mental function, it is instructive to note that a psychiatric report prepared prior to the trial confirmed that the defendant was mentally fit to stand trial and there was no evidence that he suffered any psychiatric disorder.
Considerations of the Aboriginality of offenders were discussed generally in Tjami where Nyland J observed:[1]
[1] R v Tjami (2000) 77 SASR 514 at [8] – [9].
In [Fernando], Wood J, of the Supreme Court of New South Wales, had the task of sentencing an Aboriginal man who had pleaded guilty to one count of malicious wounding with a knife. During submissions, counsel referred his Honour to numerous authorities, reports and papers which discussed the sentencing of Aboriginal offenders. Wood J gave a summary of the propositions emerging therefrom which I respectfully adopt (at 62):
The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group.
The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.
While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.
That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part."
The propositions listed by Wood J do not, nor do they purport to, alter the sentencing process which is to be applied to Aboriginal offenders. Rather, the propositions reaffirm that the same sentencing process should apply to all offenders. This does not, however, mean that sentences are simply applied rigidly. Sentencing is a flexible process and there are, therefore, many considerations of aggravation and mitigation which the court may and should take into account when reaching a decision as to an appropriate sentence. In carrying out this exercise, a sentencing judge needs to be sensitive to the fact that there are particular mitigating factors which might apply more readily to Aboriginal offenders. The matters set out by Wood J are therefore a useful guide to be borne in mind in such cases.
The observations of Nyland J are relevant and apposite to the within proceedings.
Relevant Law
Section 20B of the Sentencing Act provides that a person is liable to be declared a serious repeat offender if a number of conditions are met. That section relevantly provides:
Declaration that person is serious repeat offender
(1)A person is liable to be declared a serious repeat offender if the following conditions apply:
(a)     the person—
(i)has committed on at least 3 separate occasions an offence to which this section applies (whether or not the same offence on each occasion); and
(ii)    has been convicted of those offences; or
(b)     the person—
(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.
(2)     An offence is one to which this section applies if—
(a)     the offence is—
(i)     a serious offence; or
(ii)an offence against the law of another State or Territory that would, if committed in this State, be a serious offence; or
(iii)an offence against a law of the Commonwealth dealing with the unlawful importation of drugs into Australia; and
(b)     either—
(i)a sentence of imprisonment (other than a suspended sentence) has been imposed for the offence; or
(ii)if a penalty is yet to be imposed—a sentence of imprisonment (other than a suspended sentence) is, in the circumstances, the appropriate penalty.
(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.
(4)If a court convicts a person of a serious offence, and the person is declared (or has previously been declared) to be a serious repeat offender—
(a)     the court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence; and
(b)     any non-parole period fixed in relation to the sentence must be at least four-fifths the length of the sentence.
A “serious offence” is defined in section 20A as:
(a)     a serious drug offence; or
(b)     one of the following offences:
(i)an offence against the person under Part 3 of the Criminal Law Consolidation Act 1935;
(ii)    an offence of robbery or aggravated robbery;
(iii)     home invasion;
(iv)     an offence of damage to property by fire or explosives;
(v)    an offence of causing a bushfire;
(vi)a conspiracy to commit, or an attempt to commit, an offence referred to in subparagraph (i), (ii), (iii), (iv) or (v); or
(c)     an offence that is committed in circumstances in which the offender uses violence or a threat of violence for the purpose of committing the offence, in the course of committing the offence, or for the purpose of escaping from the scene of the offence;
Section 20B was introduced by the Criminal Law (Sentencing) (Serious Repeat Offenders) Amendment Act 2003 (SA). The provision came into force on 27 July 2003 and repealed and replaced section 22 of the Sentencing Act which had formed the habitual criminals scheme. Prior to the enactment of section 22, declarations of habitual criminals were made pursuant to section 319 of the Criminal Law Consolidation Act 1935 - 1957 (SA). Those provisions were repealed upon the commencement of the Sentencing Act in 1988. There are no interstate equivalents to section 20B although various regimes to address habitual criminals or indefinite detention have been enacted.[2]
[2] See eg Habitual Criminals Act 1957 (NSW); Penalties and Sentences Act 1992 (Qld) section 161B: “serious violent offender”; Sentencing Act 1991 (Vic) section 18A “indefinite detention”; Sentencing Act 1995 (WA) section 98: “indefinite imprisonment”; Sentencing Act 1997 (Tas) section 19: declaration of “dangerous criminals”; Sentencing Act 1995 (NT) section 65: “indefinite sentence”.

Section 20B is enlivened if a person has committed and has been convicted of a serious offence on at least three separate occasions. In these circumstances the court must consider making a declaration, and should make such a declaration, if the court is of the opinion that the person’s history of offending warrants a particularly severe sentence in order to protect the community. If a person is declared a serious repeat offender, the court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence. Further, any non‑parole period fixed must be at least four-fifths the length of the sentence.
As with many of the recent amendments to the Sentencing Act,[3] the rationale informing the introduction of section 20B was to emphasise the protection of the community as a primary consideration in sentencing. The second reading speech, when discussing the move away from the previous habitual criminals model, highlights this focus:[4]
There are policy principles that, although vague, can help us with habitual criminals. They are:
·Any alternative proposal should not be about ‘preventive detention’ and ‘predictions of dangerousness’. These are imprecise subjective phrases with unfortunate connotations. Something far more objective and tangible is needed. The best phrase and policy setting is ‘the protection of society’. …
·The protection of society from serious offenders is something that concerns everyone. Legislation should be pursued that will give primacy to the protection of society from serious offenders but will not cast the net so wide as to destroy the credibility of the scheme with the judges and the public.
…
·Any [alternative] scheme should be based on a discretion conferred upon the judiciary and should avoid mandatory sentencing.
[3] See eg section 32A of the Criminal Law (Sentencing) Act 1988 (SA) and the relevant second reading speech - South Australia, Parliamentary Debates, Legislative Council, 13 March 2007, 1566 (P Holloway, Minister for Police).
[4] South Australia, Parliamentary Debates, House of Assembly, Wednesday 19 February 2003, 2323 (Hon MJ Atkinson, Attorney-General).
The proposal for replacement of the old habitual criminals scheme was relevantly framed as follows:[5]
·A sentencing court is given the authority to make a declaration that an offender is a serious repeat offender. The reason for the declaration is that it is appropriate to do so for protection of the public. It should be noted that the authority is discretionary. The court is not compelled to invoke it only because the threshold is reached.
·The effects of the declaration are that (a) the court is empowered to impose a sentence for the protection of the public that is more than proportional to the seriousness of the offence actually the subject of the sentence and (b) any non-parole period fixed for the sentence must be at least 80 per cent of the length of the sentence. The effect of the second of these is obvious. A general principle of sentencing law is that the sentencing court must impose a proportionate sentence. The principle of proportionality says that a sentence should not be increased beyond what is proportionate to the gravity of the crime committed by the offender merely to extend the period of protection of society from the risk of reoffending by the offender. This was established in Veen (No.2) (1988) 33 ACR 230. If the court finds it desirable, that principle may be breached to a degree that the court believes warranted.
…
[Emphasis added]
[5] South Australia, Parliamentary Debates, House of Assembly, Wednesday 19 February 2003, 2323 (Hon MJ Atkinson, Attorney-General).
As highlighted above, the principle of parity in sentencing law mandates that a sentence of imprisonment should not exceed that which can be justified as appropriate or proportionate to the gravity of the crime.[6] The common law does not sanction preventative detention. However, the second reading speech illustrates that the specific purpose of the provisions is to provide the sentencing judge with a discretion to fix a sentence that is not proportionate to the offence, if the protection of the community warrants such a sentence.
[6] See Hoare v R (1989) 167 CLR 348 at 354; Veenv The Queen (No 2) (1988) 164 CLR 465.
It is instructive to note that despite the observations in the second reading speech that the amendments should have as their focus “the protection of society” rather than the terminology of “predictions of dangerousness” or “preventative detention” as was used in the habitual criminals scheme, an assessment of the need to protect society necessarily involves an assessment of dangerousness or risk of the individual offender re-offending. Despite the terminology used, the common theme underpinning the various schemes is a desire to protect the community, and such aim is achieved via an assessment of risk of an individual offending and the incapacitation of that individual, generally through a form of preventative detention. As a consequence, authorities and commentary in relation to the old scheme and in relation to similar schemes from other jurisdictions have a relevance to the inquiry as to whether to declare an individual a serious repeat offender.
In Strong,[7] the High Court had occasion to consider the Habitual Criminals Act 1957 (NSW). Kirby J traced the history of the legislation: [8]
… The common occurrence of repeat offending has produced many legislative attempts to deal with the problem. In 1871, the United Kingdom Parliament enacted the Prevention of Crimes Act 1871 UK affording, in England, a statutory regime for the additional punishment of habitual criminals. Legislation of a like kind was quickly enacted in Australia for the same purpose, namely to provide a power to judges to impose additional punishment in sentencing as a deterrence against repeat offending, to protect the public and to respond to the presumed existence of an identifiable "criminal class".
In New South Wales this approach led to the enactment of the Habitual Criminals Act 1905 NSW. That Act permitted a judge, in specified circumstances, to declare a person convicted of identified offences "an habitual criminal" (s 3(a)). Following such a declaration, the person so "declared" could be detained "at the expiration of his sentence" during the pleasure of the Executive (s 5). The detention was under conditions of confinement requiring the person "to work at some trade or avocation", being "offered facilities for selling or otherwise disposing of the products of his labour" (s 6). It was left to the Executive, having determined that the "habitual criminal is sufficiently reformed, or for other good cause", to release the prisoner on licence (s 7). Male and female habitual criminals were to be kept apart (s 10) and alcoholic liquor prohibited in their places of confinement (s 11).
The essential object of the system was said to be two-fold: to protect the public and to afford the habitual criminal the opportunity for reform.
The 1957 NSW Act: This legislative scheme was eventually viewed as a failure both in England and in Australia. In 1948, the Criminal Justice Act 1948 UK in England repealed the previous legislation. It substituted a regime that, in turn, became the model for the Act invoked in the appellant's case. That Act, the Habitual Criminals Act, adopted by the State Parliament of New South Wales in 1957, consciously followed the later English Act. It did so on the basis that the judiciary had resorted to the 1905 Act, mistakenly but bona fide, particularly in the case of juvenile offenders, as a means of ensuring that prisoners would receive training in a trade. This, the Minister declared, had not been the intention of that Act. He quoted Dr Norval Norris's description of an habitual criminal as "one who possesses criminal qualities inherent or latent in his mental constitution (but who is not insane or mentally deficient); who has manifested a settled practice in crime; and who presents a danger to the society in which he lives (but is not merely a prostitute, vagrant, habitual drunkard or habitual petty delinquent)".
It was for that reason that the Habitual Criminals Act was enacted in New South Wales to follow the reforms adopted by the English Act of 1948. In accordance with the stated purpose, the Habitual Criminals Act treated the pronouncement of the person to be "an habitual criminal" as a separate judicial act. It was one to be made on the specified pre-conditions and not (as such) "part of the sentence of such person". The pre-conditions and the incidents of the pronouncement were tightened in 1957. It remained in the discretion of the judge, if "satisfied that it is expedient with a view to such person's reformation or the prevention of crime that such person should be detained in prison for a substantial time". The discretion so to order was intended to be a real one. As this Court explained in R v White, it was not a power to be exercised where, "notwithstanding a person has three convictions or more, he is not really an habitual criminal".
…For various reasons, from the 1970s, the Habitual Criminals Act, and statutes like it in other jurisdictions, fell into disuse in Australia. In the Australian Criminal Reports series, which began in 1979, there is not a single case involving the application of the Habitual Criminals Act. In part, this may have reflected changing attitudes of prosecutors and in part the view of judges that the assumptions, procedures and consequences of such legislation had been overtaken by later sentencing developments. A similar change had occurred in respect of the somewhat analogous provisions of the Inebriates Act 1912 NSW and its equivalents. In proposals for the reform of the law of sentencing as late as 1996, the New South Wales Law Reform Commission recommended the repeal of the Habitual Criminals Act, …
The Law Reform Commission recorded that the Office of the Director of Public Prosecutions at that time was in favour of repeal of the Habitual Criminals Act and that already the Act had "fallen into disuse". Nevertheless, the Act was not repealed. It remains part of the law of the State. Over the last decade, in the way of these things, there has been a revival in Australian law of notions of preventive detention for "the protection of the public". This has been given effect in legislation providing for lengthy mandatory imprisonment for repeat offenders; additional sentences of indefinite detention; and specific legislation addressed to certain long-term prisoners. So long as such laws are constitutionally valid, when they are invoked (as here) it is the duty of courts to uphold them and of sentencing judges to apply them in accordance with their language and purpose. In the present appeal, no challenge was raised to the constitutional validity of the Habitual Criminals Act.
[Footnotes omitted – emphasis added]
[7] Strong v R (2005) 224 CLR 1.
[8] Strong v R (2005) 224 CLR 1 at [57] – [62].
The facts of the case were summarised by McHugh J as follows:[9]
The District Court of New South Wales sentenced the appellant to four years' imprisonment for the offence of intimidation and five years for the offence of stalking. He was given a total non-parole period of six years. At a further hearing, the District Court pronounced the appellant an habitual criminal holding that he was "now and will continue to be a threat to the community, certainly for the foreseeable future". As a result of making the pronouncement, the District Court sentenced the appellant as an habitual criminal to fourteen years' imprisonment, a term that was to be served concurrently with the sentences for the intimidation and stalking offences.
Subsequently, the Court of Criminal Appeal allowed an appeal against the sentences for intimidation and stalking. A majority of the Court re-sentenced the appellant to three years' imprisonment for the intimidation offence and four and a half years' imprisonment for the stalking offence with a non-parole period of five years. The Court also gave the appellant leave to appeal against the pronouncement that he was an habitual criminal but dismissed his appeal against that pronouncement. The Court (by majority) also granted leave to appeal against the sentence as an habitual criminal and re-sentenced the appellant to a term of eight years' imprisonment in respect of the pronouncement.
Subsequently, this Court granted special leave to appeal from the order of the Court of Criminal Appeal on the following ground:
The majority of the Court of Criminal Appeal (the Court) erred in approaching the appeal against the pronouncement and sentence under the Habitual Criminals Act 1957 (the Act), upon the basis that the Court, applying the principles identified in House v The King, was constrained by the decision of the primary judge, whereas the Court, having upheld the appeal against sentence, was obliged to address itself, afresh, to the questions arising for determination under s 4 of the Act.
[9] Strong v R (2005) 224 CLR 1 at [17] - [19].
In the course of the reasons of the Court, observations of general relevance to the issues arising in the present proceeding were made. In particular, Kirby J observed:[10]
[10] Strong v R (2005) 224 CLR 1 at [77] - [82].
The rule of scrupulous care: In so far as there is any doubt at all about the foregoing, it should be resolved in this appeal in a way consistent with the unbroken authority of this Court on the approach to be taken to legislation such as the Habitual Criminals Act.
In White, in 1968 this Court unanimously stressed the confinement of orders under legislation such as the Habitual Criminals Act to cases really requiring them. It emphasised the substantial content of the discretionary power to make such orders and hence the importance of making them only where a consideration of all the circumstances warranted it.
In relation to somewhat different legislation, but also providing for preventive detention, this Court has repeatedly stated that the powers conferred "should be confined to very exceptional cases where the exercise of the power is demonstrably necessary". In Lowndes v The Queen, the Court unanimously affirmed the approach of Hayne JA in the Court of Appeal of Victoria in R v Moffatt to the effect that, the power being exceptional, the exercise of the power could only be warranted by exceptional circumstances. This was also the approach taken in McGarry. It led the majority of this Court in that case to insist that full details of the offender's past conduct should be provided to the sentencing judge under conditions that afforded the person affected a proper opportunity to meet the prosecution's case. That did not happen in the present appellant's case.
The respondent argued that these earlier cases were distinguishable. It is true that the Habitual Criminals Act and the legislation considered in the authorities just mentioned, other than White, are different. The Habitual Criminals Act does not provide for indefinite detention. It provides for concurrent and not consecutive sentences. It is enlivened by different considerations. However, what is common is the exceptional addition to the punishment normal to proved offences; the consequent risk of disproportion between the immediate crime and its punishment; and the added punishment "for the purpose of extending the protection of society from the recidivism of the offender".
The foregoing are the considerations that led in Chester v The Queen, Thompson v The Queen, Lowndes and McGarry to this Court's insistence upon serious, individual and scrupulous attention by the judiciary in every case where such exceptional legislation is invoked. Those considerations led me in Thompson to say:
Where there was any possibility that an order of indefinite imprisonment might be made, it was essential that the procedures observed should be regular and scrupulously thorough and that the materials, including the pre-sentence reports, should be as adequate and complete as fairness to the prisoner required.
In a sense, the importance of basing orders under the Habitual Criminals Act upon up-to-date and complete materials concerning the prisoner, the subject of an application for a pronouncement under that Act, is reflected in the provisions of s 9 of the Act. That section requires that, before sentencing any person under the provisions of the Habitual Criminals Act, a judge "shall consider any report in respect of such person that may be obtained by such judge from the Adult Probation Service".
[Footnotes omitted]
The Habitual Criminals Act and other habitual criminals’ schemes differ from the declaration of serious repeat offenders under the South Australian legislation. Those regimes did not and do not contain the explicit removal of a requirement of proportionality as contained in section 20B of the Sentencing Act, although such removal is implicit in regimes which entitle a court to fix indeterminate sentences. However, the above observations are illustrative of the general flavour of the regimes; regimes intended to protect the community. The authorities provide some guidance or indication as to the considerations relevant in exercising the discretion to declare an individual a serious repeat offender.
As earlier observed, despite the perceived change in emphasis from the question of ascertaining risk or preventative detention, to the issue of protection of the community, these considerations are fundamentally related. The factors outlined all operate to assess whether the person’s history of offending warrants a particularly severe sentence in order to protect the community.
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.

The approach taken in Cook was distinguished in White[15] where, despite the youth of the offender, a declaration that he was a habitual criminal was affirmed by the Full Court, as the manner in which his offences were committed indicated that notwithstanding his youth he was a skilled professional criminal. In distinguishing Cook the Court said:[16]
We should be prepared to follow that case in any other to which it properly applied, but, in the present case, we think that the offences were – very clearly indeed – the activity of a “skilled professional criminal.” The main purpose of the enactment is to protect the public against the depredations of those who make a practice of living by crime, i.e., by shutting them up where they have no opportunity of preying upon the public, until such time as they show some sign of mending their ways.
[Emphasis added]
[15] R v White [1962] SASR 114.
[16] R v White [1962] SASR 114 at 116 (Napier CJ, Mayo and Travers JJ).
Although special leave to appeal from this decision was refused by the High Court, following a petition for mercy to the Governor, the case was subsequently referred to the Full Court on the question of whether the convictions on separate counts in the one information qualified as separate “occasions” notwithstanding that the counts were heard in the one court at the one time. The Court determined that two or more convictions on the same day constituted only one “occasion” for the purposes of section 319.[17]
[17] R v White [1967] SASR 184 (Bray CJ and Mitchell J, Hogarth J in dissent).
The Full Court decision was subsequently reversed by the High Court.[18] In his judgment, Barwick CJ recorded the history of section 319 before observing:[19]
…s. 319 like its predecessors … creates in the court a discretion to declare a convicted person an habitual criminal if that in fact is what in the opinion of the court he is. The section does not itself impose anything upon the prisoner but selects what it describes as previous conviction on at least a specified number of occasions of an offence of the specified class as indicative of the possibility that crime has become habitual with the prisoner. … Further, the selection of previous conviction on at least a specified number of occasions as the condition giving rise to the judicial discretion does not appear to me to be founded on any specific concept of incorrigibility or lack of response by the prisoner to what is said to be the warning of a prior conviction or of a prior sentence. The selection is made I think because the frequency of the commission of an offence within the stated range of offences may mark habituation and call for special measures for the protection of the public and the reformation of the prisoner.
…
… According to the proper construction of [section 319], the respondent had been previously convicted on at least three occasions of an offence mentioned in class V. of sub-s. (3). Indeed, in my opinion, if the declaration be regarded as part of the sentence on the third count, the conviction on the first and second counts constituted further occasions. The matter therefore became one for the exercise of the discretion which the learned judge had under the section. That judicial discretion is an ample safeguard against a declaration being made in a case where, notwithstanding a person has three convictions or more, he is not really an habitual criminal.
[18] R v White (1968) 122 CLR 467.
[19] R v White (1968) 122 CLR 467 at 470 - 472.
Menzies J also observed the importance of the judicial discretion in making a declaration:[20]
As the authorities stand, I think our proper course is to give effect to our own understanding of the section. Doing that, I consider that when Chamberlain J. made the declaration which he did he acted within the authority conferred by s. 319 of the Act for, according to the proper construction of that section, the respondent had been previously convicted on at least three occasions of an offence mentioned in class V. of sub-s. (3). The matter therefore became one for the exercise of the discretion which the learned judge had under the section. That judicial discretion is an ample safeguard against a declaration being made in a case where, notwithstanding a person has three convictions or more, he is not really an habitual criminal.
[20] R v White (1968) 122 CLR 467 at 478.
Discretion under section 20B
Since the introduction of the scheme, the power to declare a person a serious repeat offender does not appear to have been utilised. The breadth of the discretion conferred by section 20B has only been considered on a small number of occasions.
In Williams,[21] Sulan J considered the operation of section 20B, summarising the operation of the serious repeat offender scheme as follows:
Section 20B provides that a person is liable to be declared a serious repeat offender if the person has committed a serious sexual offence against a person or persons under the age of fourteen years on at least two separate occasions, and has been convicted of those offences. A serious sexual offence includes the offence of indecent assault, contrary to s 56 of the CLCA.
The defendant committed two serious sexual offences against a person under the age of fourteen years, being offences of indecent assault, committed on 9 July 1999 and 30 August 2001 respectively. If a person is a serious repeat offender, the Court must consider a declaration and, if the Court is of the opinion that the person’s history of offending warrants a particularly severe sentence in order to protect the community, it should make such a declaration. If a person is declared to be a serious repeat offender, then the Court is not bound to ensure that the sentence it imposes for the offence for which the serious repeat offender is to be sentenced is proportional to the offence and, further, in fixing any non-parole period the Court must fix a period of at least four-fifths the length of the sentence.
In considering whether to make the declaration, the Court is required to form an opinion as to whether the person’s history of offending warrants a particularly severe sentence in order to protect the community. The effect of the section is to provide for the imposition of a lengthier term of imprisonment and lengthier non-parole period than would normally apply to the offence with which the Court is dealing.
Sulan J then suggested that a departure from a proportionate sentence should only occur in rare cases:[22]
The section departs from the basic principle that a sentence of imprisonment, imposed by a court, should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime, considered in the light of its objective circumstances: see Hoare v The Queen.[23]I consider that it is only appropriate to make a declaration in the instance that the Court is satisfied that there is a clear need to protect the community. Only in rare cases will the Court be justified in departing from the recognised principle of proportionality.
[21] R v Williams (2006) 96 SASR 226 at [65] - [67].
[22] R v Williams (2006) 96 SASR 226 at 239.
[23] Hoare v R (1989) 167 CLR 348, 354.
The terms of the section are unambiguous – if the statutory preconditions are strictly met, and if the court is of the opinion that the protection of the community warrants a longer than proportionate sentence, there is an absolute discretion in fixing that sentence. It is my view that the discretion is unfettered. It is to be observed that the power to order a declaration is only to be utilised if the court is of the opinion that a particularly severe sentence is necessary in order to protect the community from the offender. Although it may only be in rare cases that such a severe sentence is warranted, the discretion is not so confined. Once the matters in the section are satisfied, the court is not bound to ensure that the principle of proportionality are complied with and may fix the sentence it considers appropriate.
Several potentially relevant factors to be considered in the exercise of the discretion were outlined by Sulan J in Williams:[24]
Factors to be considered include the number of prior offences, the seriousness of the offences, the age of the defendant and his or her prospects of rehabilitation, the time which has elapsed between the repeat offences, the likelihood of further re-offending and the nature of offending, having regard to the protection of the community.
…
In my view, the community will be better protected if the defendant is successfully treated. To order that the defendant be kept in custody for a longer period would not, in my view, ultimately result in better protection for the community. It has not been demonstrated that a declaration pursuant to s 20B is required for the protection of the community, and I decline to make an order.
[24] R v Williams (2006) 96 SASR 226 at 239.
It is to be observed that these factors reflect the approach taken by the court previously under the habitual criminals scheme.
Retrospectivity
At the time of sentencing submissions, the question of the retrospectivity of the serious repeat offender legislation was raised.
The commentary provided in Lunn[25] in relation to the requirement that the offender have three prior convictions, suggests that such offences do not include offences and convictions prior to the date the provisions came into operation; 27 July 2003. The decision of Robinson[26] is cited in support of this proposition. In that decision, a District Court Judge canvassed relevant principles in relation to retrospectivity of legislation generally, before concluding:[27]
…in my view the provisions of Section 20A and 20B have the effect of increasing the sentence for an offence in the event a serious repeat offender declaration is made. In my opinion the amending Act is silent as to whether it applies to sentences to be imposed for offences committed before or after, or its operation is confined to sentences for offences committed after, the date of operation.
In my judgment the provisions of Sections 20A and 20B of the Act do not apply to a sentence to be imposed after the date those sections came into force where the sentence is in respect of an offence committed before that date.
[25] Butterworths, Lunn’s Criminal Law, vol 1, (at 11 November 2009) Criminal Law (Sentencing) Act 1988 (SA) [10,102.3].
[26] R v Robinson [2003] SADC 182.
[27] R v Robinson [2003] SADC 182 at [11] - [12].
On appeal to the Supreme Court (on unrelated grounds), the Court observed:[28]
On the day upon which he sentenced the respondent, the sentencing judge published separately reasons for a ruling which he made concerning the application of s 20A and s 20B of the Criminal Law Sentencing Act 1988, which sections came into force on 27 July 2003. He ruled that the sections did not apply to offences committed before that date. No question now arises as to the correctness of that decision.
[28] R v Robinson [2004] SASC 189 at [19] (Doyle CJ, Perry & Mullighan JJ).
It is to be observed that the decision in Robinson concerned a situation where the defendant had been convicted and sentenced in relation to three relevant offences prior to 27 July 2003. Of relevance is the fact that the offence the subject of the sentence that was under consideration was also committed prior to 27 July 2003; that is, the offence that enlivened the application of section 20B was committed prior to the enactment of the legislation. The scope of the consideration of retrospectivity in that case was summarised by the Judge as follows:[29]
A question is – do the provisions of Sections 20A and 20B apply to a serious offence committed before the date those sections came into force, but the defendant is to be sentenced after that date.
[29] R v Robinson [2003] SADC 182 at [6].
Such a consideration may be distinguished from a situation where previous offences occurred prior to 27 July 2003, but the offence the subject of the sentencing exercise occurred after that date.
In Fricker Nyland J when sentencing considered the issue of retrospectivity and observed:[30]
…it was the intention of the legislature that convictions prior to the passing of the legislation should be taken into account for the purpose of making this particular declaration. If that was not the case, as a matter of commonsense the effect of the section would be lost except for a future generation of offenders. Proceeding on that basis does not, in my opinion, have the effect of retrospectively increasing the penalty for crimes committed after the passing of the legislation. This is to be distinguished from the situation in which a person is being sentenced for offences committed prior to the legislation coming into effect but being sentenced after that date.
In a later consideration of the provisions, Nyland J adopted the previous enunciation and stated:[31]
I went on to say in Fricker that all of the offences for which I was obliged to impose sentence were committed subsequent to the passing of the legislation and accordingly I did not think that interpreting the legislation in this way would have a retrospective effect, in the sense of penalising him for events which occurred before its enactment. Rather, it dealt with acts committed after the passing of the legislation but taking into account previous events. In those circumstances, in that case, I considered that it was open to me to have regard to his earlier convictions in order to determine whether I should make the declaration.
[30] R v Fricker SCCRM-05-55; 05-56; 05-68; 05-92; 05-93, 4 November 2005, Nyland J in sentencing.
[31] R v Miller SCCRM-05-232, 21 September 2006, Nyland J in sentencing.
The approach of Nyland J accords with the second reading speech accompanying the introduction of sections 20A and 20B, which provided the following example of the intended operation of the provisions:[32]
For example: A defendant was convicted in 1990 of burglary of a dwelling house and sentenced to three years imprisonment. On release, he was convicted in 1994 of rape and sentenced to six years imprisonment. He has now been convicted of serious criminal trespass (home invasion) and will be sentenced to imprisonment. He is liable to be declared a serious repeat offender.
[32] South Australia, Parliamentary Debates, House of Assembly, Wednesday 19 February 2003, 2323 – 2324 (Hon MJ Atkinson, Attorney-General).
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.
The pre-sentence report indicates that the defendant takes no responsibility for his behaviour when committing the subject offences. The earlier reports elaborate on this theme, outlining the defendant’s failure to acknowledge his role in violent altercations between the victim and himself. The defendant’s resistance to acknowledging responsibility for his violence is reflected in his failure to partake in appropriate intervention programs.
The defendant’s attitude to his offending is illustrated by the fact that the frequency and seriousness of his offending pattern has escalated over time. This escalation is evident in the antecedent and pre-sentence reports. For example, the pre-sentence report records that the defendant assaulted the victim on three separate occasions between January and March 2006.
The defendant is a recidivist with, at best, limited prospects of future rehabilitation. As such, the defendant poses a present and future threat to women, particularly when in a domestic arrangement. The defendant has exhibited a propensity for severe violence within the Aboriginal community, particularly towards women. The reports indicate that the defendant may well reoffend in domestic situations in the future. Any prospects for rehabilitation are hampered by the fact that the defendant has not acknowledged his responsibility for his violent conduct over time towards the victim.
Despite any suggestion that the defendant suffers from diminished cognitive functioning, the focus for any consideration should be on the protection of the community. The statutory provisions require this focus. In the circumstances, the protection of the community, and the women in the defendant’s immediate sphere, are imperative considerations having regard to his antecedents and the nature of the violence committed against women.
I am of the opinion that in the circumstances, the defendant’s history of offending warrants a particularly severe sentence in order to protect the community. As a consequence, I grant the application of the prosecution and declare the defendant to be a serious repeat offender.