R v Harradine - [2019] SASCFC 144

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Permission to Appeal)
R v HARRADINE
[2019] SASCFC 144
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hughes)
15 November 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
Crown appeal against sentence
The respondent pleaded guilty and was sentenced in the District Court to multiple charges for offending that occurred on 20 July 2016. The offending involved:
- theft of a car (count 1);
- aggravated assault causing harm (count 2);
- attempted theft of another car (count 3);
- aggravated assault (count 4);
- count 5 was the subject of a nolle prosequi;
- theft of another car (count 6);
- theft of a wallet (count 7);
- theft of another wallet (count 8);
- damaging property, another car (count 9);
- illegal interference with a motor vehicle, another car (count 10);
- throwing a missile, debris at a car (count 11);
- illegal interference with a motor vehicle, another car (count 12);
- theft of another car (count 13);
- aggravated assault (count 14);
- aggravated creating likelihood of harm (count 15);
- aggravated driving dangerously to escape police pursuit (committed for sentence);
- driving under disqualification (committed for sentence).
The respondent was imposed separate sentences for the offences and aggregated the sentences, but applied some concurrency to arrive at an overall sentence of imprisonment for five years and nine months.
The respondent was sentenced under the Sentencing Act 2017 as a serious repeat offender, the sentencing judge being satisfied that he had committed four qualifying offences over three occasions:
1. aggravated theft using force (5 November 2011, for which he had been sentenced at the time);
2. aggravated assault causing harm at 8.20 am on 20 July 2016 (Count 2);
3. aggravated creating likelihood of harm at 11.20 - 11.40 am on 20 July 2016 (Count 15); and
4. aggravated driving dangerously to escape police pursuit at 11.20 - 11.40 am on 20 July 2016 (committed for sentence).
The sentencing Judge found the third and fourth qualifying offences to have occurred on one occasion for the purposes of s 53(1)(b).
The sentencing judge applied s 54(1)(b) which requires a serious repeat offender’s non-parole period to be at least four-fifths of the length of the sentence, to the sentence imposed for aggravated dangerous driving to escape police pursuit on the basis that it was the longest of the three sentences imposed to which the four-fifths rule applied. The non-parole period set for that sentence was one year, eight months and six days, and the non-parole period fixed for the whole of the sentence was three years and two months.
The Director sought permission to appeal on the sole ground that the sentencing judge incorrectly applied s 54(1)(b) and that the imposition of the non-parole period should have been applied to the whole sentence, being five years and nine months.
The Director argued that the effect of the construction given by the sentencing Judge was that the non-parole period was 10 months shorter than it should have been. The Director identified that there was also an argument, not canvassed during sentencing, that the respondent had not been correctly classified as a serious repeat offender if the whole of the offending on 20 July 2019 occurred on one “occasion”.
The respondent did not appeal but adopted the argument regarding the respondent’s classification and submitted that:
- the respondent was not a serious repeat offender and, in the alternative;
- that the sentencing judge had correctly confined the application of the four-fifths rule to the ‘triggering’ offence, because on a proper construction of the provisions, “an offence” in s 54(1) should be understood to mean “an offence to which this Division applies as defined by s 52(3)” i.e. a qualifying offence; and
- the rule only applies to offending occurring at or after the point of qualification as a serious repeat offender; and
- that in any event the sentence including the non-parole period was appropriate and should be upheld.
Held per Hughes J (Peek J agreeing) granting permission to appeal and dismissing the appeal:
1. The circumstances of the conduct determine whether a series of offences amount to one or separate occasions. Continuity of intent is relevant, but not determinative, of whether offending occurred on a single occasion. To be characterised as separate occasions of offending, there must be a temporal or circumstantial separation between the acts.
2. Count 2, which occurred at 8.20 am, and count 15 which was committed at about 11.20-11.40 am, are properly characterised as having occurred on a single occasion notwithstanding that they occurred at different locations and with different victims.
3. The respondent was incorrectly classified as a serious repeat offender as he had not, when sentenced, committed three qualifying offences.
4. The application concerns important matters of statutory construction. Permission to appeal granted.
5. The classification error means that the respondent does not fall to be sentenced as a serious repeat offender and therefore the Director’s appeal should be dismissed.
Held per Hughes J (Kourakis CJ and Peek J agreeing):
1. Section 52(3) of the Sentencing Act 2017 (SA) does not define the class of offences that attract the operation of the four-fifths rule. Rather, s 52(3) describes the second of the two attributes that offending must have before it operates as a qualifying offence.
2. The sentencing Judge erred in failing to apply the four-fifths rule to the non-parole period fixed to the whole of the sentence, giving rise to a grant of permission to appeal.
3. It was not necessary to decide whether, in relation to a serious repeat offender, the four-fifths rule operates on all subsequent sentences or only sentences for serious offences, as the question did not arise on the facts.
Held per Kourakis CJ (dissenting):
1. The unifying circumstance of the respondent’s state of mind cannot be given sufficient prominence to reach a conclusion that the aggravated assault causing harm was committed on the same occasion as the aggravated driving dangerously to escape police pursuit and aggravated creating likelihood of harm offences.
2. That, if it had been necessary to decide, permission to appeal would have been granted and the appeal allowed. The non-parole period should be set aside and a non-parole period of four years, seven months and one week fixed.
Sentencing Act 2017 s 26, s 52, s 53, s54; Criminal Law (Sentencing) Act 1988 s 20B; Criminal Law Consolidation Act 1935 s 319; Crimes Act 1958 (Vic) s 47A; Child Sex Offenders Registration Act 2006 s 4, referred to.
R v Phanos [2015] SASCFC 26; (2015) 122 SASR 129; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Tognolini v The Queen [2011] VSCA 113 (2011); 32 VR 104; (2011) 211 A Crim R 68; Kelly v The Queen [2010] NTCCA 8; (2010) 27 NTLR 181, applied.
R v Culley [2019] SASCFC 143; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378; R v M, STE [2013] SASCFC; (2013) 118 SASR 101; O’Dea v Commissioner of Police [2016] SASCFC 58; (2016) 125 SASR 159, discussed.
R v White [1968] HCA 19; (1968) 122 CLR 467; R v Jackamarra [2013] SASCFC 98; R v Williams [2006] SASC 377; (2006) 96 SASR 226; R v P, A; P, A v Police [2013] SASCFC 3; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501; Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295; R v Oake [2017] SASCFC 82; (2017) 128 SASR 260, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"occasion”, “separate occasions”, “serious repeat offender”, “qualifying offence”, “course of conduct"

R v HARRADINE
[2019] SASCFC 144
Court of Criminal Appeal: Kourakis CJ, Peek and Hughes JJ

KOURAKIS CJ: I agree with the construction given to s 52(3) of the Sentencing Act 2017 (SA) (the Sentencing Act) by Hughes J in [51] of her Honour’s reasons. Section 52(3) of the Sentencing Act is a convenient drafting device which obviates the need to insert the words ‘and [for which] a sentence of imprisonment … has been imposed ... or if a penalty is yet to be imposed—a sentence of imprisonment … is, in the circumstances, the appropriate penalty’ as a subparagraph (iii) in each of subparagraphs (a), (b) and (d) of s 53(1) of the Sentencing Act.
I also agree with the conclusion of Hughes J that s 54 of the Sentencing Act requires the four-fifths rule to be applied to the total of all of the terms of imprisonment imposed on the same occasion when a defendant is sentenced as a serious repeat offender. It cannot be otherwise. Section 47 of the Sentencing Act requires the imposition of a single non-parole period. Section 54 of the Sentencing Act is framed to accommodate that by, as Hughes J observes, imposing the four-fifths rule ‘in relation to the sentencing of … a serious repeat offender’, and not the particular sentence(s) imposed on the qualifying or trigger offences. The words ‘in relation to’ are of wide import. The single non-parole period fixed for a number of contemporaneously imposed sentences, or for a single sentence imposed pursuant to s 26 of the Sentencing Act, on a defendant who is a serious repeat offender by reason of the commission of any one of the offences, is fixed ‘in relation to the sentence’ imposed on each of those offences. The application of s 54(1)(b) of the Sentencing Act to an extension of an existing non-parole period which was fixed when the defendant was not a serious repeat offender is considered in the reasons given by this Court in R v Culley.[1]
[1] R v Culley [2019] SASCFC 143.
I turn to the question of what are ‘separate occasions’ for the purposes of s 53 of the Sentencing Act. The words must bear their ordinary meaning. They do not together constitute a term of art. Whether or not particular facts and circumstances fall within the meaning of the words is a question of fact.
It follows from the text of s 53 of the Sentencing Act that more than one offence can be committed on the same occasion, but that a series of offences will not always be committed on the same occasion.
The question is whether a lay speaking person narrating the respondent’s conduct would say that the aggravated assault causing harm was committed on the same occasion as the aggravated driving dangerously to escape police pursuit and aggravated creating likelihood of harm offences.
It is possible to identify at least some of the facts and circumstances which would affect whether offences could be said to have been committed on the same occasion. They include:
·the degree of contemporaneity of the offences;
·the distance between the places at which the offences were committed;
·the identity of the victims;
·the degree of similarity in the nature of the offences and accompanying conduct;
·the circumstantial relationship, if any, between the offences;
·the offender’s reasons for committing the offences;
·the opportunity of the offender to reflect on his or her conduct between the offences; and
·the nature of the preparatory conduct engaged in between each offence.
To illustrate how each of the considerations may interact with each other, I observe that a series of sexual offences against the same victim over a period of hours, in which the victim and the offender remain in the same room or house, are likely to constitute a single occasion. However, if the same number of similar offences are committed against different, unrelated victims in different homes some distance away, it becomes more difficult to say that the offences were committed on the same occasion. Similarly, thefts from several tellers and customers in one bank may readily be found to be committed on one occasion. However, similar offences committed even within hours in another nearby bank may not be.
It may be doubted that the purpose of the legislation, which is to protect the community and deter recidivism, is much advanced by treating offences committed in close temporal and physical proximity as separate occasions. However, it is not uncommon for the legislature to pursue its purpose by imperfect statutory language which has a wider, even quite collateral, consequence than intended. Often that language can be read down to more closely accord with the statutory intention. Unfortunately, that is not the case here. As I have observed, ‘occasion’ can only be given its natural meaning. There are no statutory indicia which allow the word to be more closely circumscribed, whilst at the same time ensuring the relative certainty which a criminal statute should have.
I understand the force of the reasoning of Hughes J, and the importance that her Honour places on the unifying circumstance of the respondent’s state of mind. However, I am unable to give it sufficient prominence in my evaluation of all of the facts and circumstances of the offending to reach a conclusion that the aggravated assault causing harm was committed on the same occasion as the aggravated driving dangerously to escape police pursuit and aggravated creating likelihood of harm offences.
I would therefore have given permission to the Director of Public Prosecutions and I would have allowed the appeal. I would have set aside the non-parole period and fixed a non-parole period of four years, seven months and one week.
PEEK J: I would grant permission to appeal but dismiss the appeal. I agree with the reasons of Hughes J.
HUGHES J: This is an application for permission to appeal against sentence by the Director of Public Prosecutions. The Director contends that the sentencing Judge failed to properly apply sentencing provisions in Division 4 of Part 3 of the Sentencing Act 2017 directed at serious repeat offenders and that as a result, the sentencing process miscarried.
The respondent and a co-offender (the offenders) pleaded guilty to multiple offences arising out of a short but frightening crime-spree on 20 July 2016. The joint offending started with the stealing of a blue Holden Calais from an address at Blair Athol. This occurred at some time prior to 7.54 am on 20 July 2016 when the offenders were sighted filling the car with petrol at a service station in Elizabeth Vale. It formed the basis of count one, theft. The offenders used that car to drive to an address at Elizabeth Downs where, at 8.20 am, they committed an assault on a woman whilst attempting to steal a Nissan sedan. One of the offenders hit the woman on the upper arm with a large spanner. This formed the basis of count two, aggravated assault causing harm. The attempted theft of the Nissan was count three. The offenders also committed an assault on the Nissan’s owner by swinging a spanner at him whilst demanding his car keys. That became count four, aggravated assault. The offenders left in the stolen blue Holden and drove to Felixstow. It was 9.30 am. One of the offenders got out of the Holden and got into a Holden station wagon that did not belong to either of them. That led to count six, theft.[2] A witness attempted to intervene to prevent the station wagon from being stolen. One of the offenders raised a hammer taken from the station wagon at the witness and then returned to the stolen Holden with the stolen hammer. Shortly thereafter, the offenders were in Magill where they stole a wallet, cigarettes and a container of coins from an unlocked car. The theft of the wallet became count seven. Elsewhere in Magill, the offenders then waved a hammer at a pedestrian and stole a wallet from a nearby Holden utility. The theft of that wallet became count eight. Just before 10.00 am, the offenders stopped the stolen Holden in the middle of the road, and hit the driver’s side window of a parked white Holden sedan with a mallet, smashing it. The damage resulted in count nine, damaging property. Being disturbed by the car’s owner, the offenders returned to the original stolen Holden and drove off. At 10.00 am, the offenders attempted to steal a Subaru in Kensington Park. They damaged the lock and the ignition. This offending made up count 10, illegal interference with a motor vehicle. Their stolen car was blocking the road and another road user stopped behind it in her car. The offenders threw debris from the road at her car and took off. Their actions led to count 11, throwing a missile. They went to Payneham South. It was about 10.05 am. They stopped the car near a Holden utility. One of them got out and opened the utility’s driver-side door. That action constituted count 12, illegal interference with a motor vehicle. The owner spotted this and yelled at the offenders. The offender raised a claw hammer at the owner and then returned to the stolen Holden and took off. The offenders went to Northgate. The respondent was driving the stolen Holden. He stopped the car in the middle of the road outside a house where a white Holden sedan was parked. The co-offender smashed the white Holden’s window. When the car-owner’s mother came outside the house to intervene, the co-offender approached her and held a hammer over her head as if he were about to hit her. That became count 14, aggravated assault. The respondent hotwired the white Holden and drove off in it. That was charged as count 13, theft. The co-offender then decamped in the original stolen blue Holden. At this point, the co-offenders’ joint conduct ended. It was just after 10.45 am.
[2] Count five was the subject of a nolle prosequi.
The respondent then drove the stolen white Holden for 30 minutes whilst being pursued by police. The driving was dangerous and consisted of driving on the wrong side of the road whilst there was oncoming traffic, driving at speeds over 100 kilometres per hour and continuing to drive after the tyres were spiked. This driving was charged as aggravated driving dangerously to escape police pursuit and was addressed as a count committed for sentence. At a police cordon, the respondent accelerated toward a police officer, requiring him to take evasive action to avoid being hit. That led to the respondent being charged with aggravated creating likelihood of harm; count 15. The driving offences were committed whilst the respondent was disqualified from driving. That led to the charge of driving under disqualification, which was committed for sentence. The respondent crashed the car, attempted to run away, and was arrested. It was approximately 11.40 am.
The sentence
The sentencing judge set out the circumstances of the offending and the maximum penalties for each offence. Her Honour addressed the personal circumstances of each of the two offenders. In relation to the respondent, her Honour observed that he is a 29-year-old Aboriginal man from Port Pearce. Most of his early childhood was spent in women’s shelters with his mother, hiding from his violent father. He was abused by other men as a child. At twelve, the respondent had left school and began consuming alcohol and drugs and committing property offences. Her Honour noted that from a relationship at the age of 18, the respondent became a father though he has no current contact with his daughter. He has been in and out of gaol all of his adult life, mostly for property and driving offences. Her Honour gave consideration to the contributions made in a sentencing conference and the respondent’s aspirations to return to the bush and re-connect with his daughter.

The sentencing remarks record that the respondent had not slept much in the seven days prior to the offending and was in a “drug-fuelled rage”. The respondent cannot remember the events of the morning in question.
After addressing the co-offender’s circumstances, her Honour imposed the same sentence for each of them in relation to the offences that were jointly charged. Her Honour proceeded by imposing separate penalties for each count. Her Honour then aggregated the penalties and said:
The total sentence is four years, 11 months and 21 days.
The sentences should be partially concurrent, recognising that they form a course of conduct over a brief period of time, but the overall sentence still must properly reflect the extent of the criminality of that conduct. I therefore come to an overall sentence in regard to those offences of three years, six months imprisonment.
Having dealt with the jointly-charged conduct, her Honour turned to the counts in relation to which the respondent was charged alone. Her Honour said:
Your offence of aggravated driving dangerously to escape police pursuit is the type of offending that the community condemns. You risked the safety and lives of other road users for a period of 30 minutes. Your driving was highly reckless. It is fortunate that there are no grieving families sitting in this courtroom today, but that is the reality of the risk that you posed on the road for 30 minutes.
For that offence I start with a notional sentence of three years imprisonment. I discount that by 30%, because of your plea of guilty, to a sentence of two years, one month and seven days.
During the course of that driving, you drove towards a police officer at speed. That is a very serious offence. Police officers are there to protect the safety of the community. They need to feel safe in doing so. Accordingly, the sentence must reflect the need for general deterrence, namely to deter other people from that type of offending.
For that offence, I start with a notional sentence of 14 months imprisonment. That will be reduced by 10%, because of your plea of guilty, to imprisonment for one year and 19 days.
That sentence should be partially concurrent with the sentence for aggravated driving dangerously to escape police pursuit, because it is part and parcel of the same course of conduct.
Accordingly, the sentence for those two offences will be two years and three months.
You were driving disqualified at the time. For that offence, I will imprison you for three months. That will be reduced by 30%, because of your plea of guilty, to two months and four days.
That sentence will be wholly concurrent with the sentence for the other two driving offences.
The sentence for the driving offences will be cumulative upon the sentence for the property offences. That makes a total sentence of imprisonment of five years and nine months.
The sentencing judge found that the respondent was a serious repeat offender because he had committed on at least three separate occasions a serious offence as defined in s 52 of the Sentencing Act 2017. Her Honour found that the respondent was deemed to be a serious repeat offender under s 53(1)(b).
Her Honour said:
Mr Harradine, by force of the Sentencing Act, you are a serious repeat offender because you have committed, on at least three separate occasions, a serious offence. In 2012, you were sentenced in this court for committing theft using force. It was an aggravated offence. You were sentenced to a term of immediate imprisonment.
You have here pleaded guilty to aggravated assault causing harm, which is a second serious offence, and then a further two serious offences are the aggravated creating likelihood of harm and aggravated driving dangerously to escape police pursuit. I will take those last two offences as being part of the one occasion. They are offences where the penalty yet to be imposed is such that a term of imprisonment, which is not suspended, is appropriate.
The consequence of being a serious repeat offender is set out in the legislation. Any non-parole period fixed in relation to the sentence must be at least four-fifths the length of the sentence. However a court, in sentencing a person who is a serious repeat offender for an offence, may declare that that does not apply if the person satisfied the court, by evidence given on oath, that the person’s personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community, whether as individuals or in general, and personal and general deterrence, and it is in all the circumstances not appropriate that the person be sentenced as a serious repeat offender.
This finding that the respondent is a serious repeat offender is discussed in more detail later in these reasons.
Her Honour went on to find that the respondent did not meet the criteria for exclusion from the classification as a serious repeat offender and turned to the consequences. These are set out in s 54 which provides:
54—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)     the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and
(b)     it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.
Her Honour said:
For each of the offences of aggravated assault causing harm, aggravated creating likelihood of harm and aggravated driving dangerously to escape police pursuit, I must fix a mandatory non-parole period of four-fifths of the sentence. As there is more than one offence for which a mandatory period is prescribed, the overall non-parole period for all your offending must be a period not less than the greater of those mandatory periods. Here, that is four-fifths of the sentence for the aggravated driving dangerously to escape police pursuit, which is one year, eight months and six days.
Taking into account the objective circumstances of the offending, but more particularly in regard to the non-parole period and your personal circumstances, I fix an overall non-parole period of three years and two months.
It can be seen that her Honour applied the four-fifths calculation to the non-parole period imposed on the offence of aggravated driving dangerously to avoid police pursuit. Her Honour then set an overall non-parole period on the aggregated sentences for the property offences and the driving offences, of three years and two months. The sentence was backdated to 12 September 2016.
The application
The Director sought permission to appeal on the sole ground that the sentencing judge erred in the application of s 54(1)(b) of the Sentencing Act 2017 by imposing a non-parole period that was not four-fifths of the total head sentence of five years and nine months for all of the offending. It is convenient to refer to s 54(1)(b) as “the four-fifths rule”.
According to the Director, the manner of sentencing led to the non-parole period being ten months shorter than it would have been had the rule been correctly applied. The Director does not submit that the sentence was manifestly inadequate or that the non-parole period was – but for the alleged error – inappropriate. The Director contends that the non-parole period is wrong at law and the Court should re-sentence.
The Director contends that permission should be granted because of the significance of the issues of interpretation of Division 4 of Part 3 of the Sentencing Act 2017 and the implications for sentencing for serious offences.
Two applications were brought by the Director for the consideration of the Court as constituted in the March sittings requiring the proper construction of the serious repeat offender regime in the Sentencing Act 2017. The other proceeding is R v Culley. These two proceedings provide an opportunity to the Court to consider the legislative provisions in different factual circumstances.
The respondent’s contention is that the sentencing process was properly carried out and that the sentencing Judge correctly limited the application of the four-fifths rule to the sentences imposed for the counts that qualified the respondent as a serious repeat offender, and then imposing an overall non-parole period that was not shorter than the longest of those three non-parole periods. In brief, the respondent’s arguments were that:
1Section 54(1) should be read as prohibiting the sentencing judge from applying the consequences of classification to any offence that occurred before the triggering offence, consistent with the manner in which sentencing occurred;
2The term “an offence” in s 54(1) should be understood to mean “an offence to which this Division applies as defined by s 52(3)”. This has the effect that the consequences of being a serious repeat offender attach only to offences that meet that classification, consistent with the manner in which sentencing occurred;
3The sentencing Judge deliberately and correctly imposed separate sentences for each of the offences and was required by s 54(1)(b) to attach a non-parole period no less than four-fifths of the longest sentence imposed.
Thus the parameters of the dispute were established. However, in his oral and written submissions, Mr Press SC on behalf of the Director properly drew the Court’s attention to a basis of possible error in the sentencing process quite distinct from that upon which the Director had brought his appeal. The sentencing Judge proceeded on the basis, consistent with the submissions of both counsel at the sentencing hearing, that the respondent was a serious repeat offender. It is convenient to refer to the offences that brought the serious repeat offender regime into play as ‘qualifying offences’ and the third of them as the ‘triggering offence’, being the offence that causes an offender to be classified as a serious repeat offender. The basis of her Honour’s finding that the respondent was so classified was that the respondent committed qualifying offences on two separate occasions on 20 July 2016, the later of which was a triggering offence.
It was not disputed at sentence or on appeal that in characterising the respondent as a serious repeat offender there were four qualifying offences:
1Aggravated theft using force committed on 5 November 2011;
2Aggravated assault causing harm at 8.20 am on 20 July 2016 (Count 2);
3Aggravated creating likelihood of harm at 11.20 - 11.40 am on 20 July 2016 (Count 15); and
4Aggravated driving dangerously to escape police pursuit at 11.20 – 11.40 am on 20 July 2016 (committed for sentence).
Both counsel on appeal submit that the third and fourth qualifying offences occurred on one “occasion”. The question is whether the second qualifying offence, occurring as it did some hours earlier, was on an occasion separate to the third and fourth qualifying offences.
The Director conceded that it was at least strongly arguable that the sentencing Judge’s finding that the second qualifying offence occurred on a separate occasion from the third and fourth qualifying offences is incorrect.
At the conclusion of the hearing of the appeal, the respondent was invited to re-consider his position as to whether he is a serious repeat offender including, if so inclined, to bring an appeal. The respondent made a further written submission in which he declined to seek leave to file an appeal but submitted, on the Director’s appeal, that the respondent was not a serious repeat offender.
In the absence of an appeal by the respondent against the sentence, it is appropriate to firstly address the Director’s ground of appeal.
Did the sentencing Judge err by imposing a non-parole period which was not four-fifths of the total head sentence of five years and nine months?
The Director submitted the sentence to which the four-fifths non parole period was required to be calculated is the overall sentence, namely five years and nine months. Instead, the sentencing Judge applied the four-fifths calculation only to those penalties imposed for the qualifying offences, namely counts 2 (the second qualifying offence) and the two serious driving offences (the third and fourth qualifying offences). That the sentencing Judge approached her task in that way is evident from that portion of the sentencing remarks set out at [23] and was not in dispute. The Director maintains that the approach taken is not consistent with the sentencing task required by s 54.
The legislation
The words requiring construction are in the chapeau to s 54, as set out in [22]. On the Director’s submission, the special rules set out in (1)(a) and (b) apply to the sentence imposed for all offences for which the serious repeat offender is being sentenced. In respect of the respondent, it required the court to apply those rules to the penalty for offences occurring prior to the offence that triggered his classification as a serious repeat offender, irrespective of whether those offences were themselves qualifying offences and irrespective of whether the offending occurred before the triggering offence. Whilst the text of s 54(1) is the same as it was in s 20BA of the Criminal Law (Sentencing) Act 1988 immediately prior to the commencement of the Sentencing Act 2017, s 53, which defines a ‘serious repeat offender’, has changed and this has affected the cohort of affected offenders.
The respondent’s objection based on retrospectivity
The respondent submitted that the words of s 54(1) evince the legislature’s intention that where a person is sentenced for multiple offences that occurred on different dates, the offending that attracts the application of the special rules includes but does not precede the triggering offence. The respondent contended that to read s 54 as authorising the application of the special rules to offending that occurred prior to the triggering offence would be to give the provision retrospective effect. It would attach consequences to conduct that predated the conduct that enlivened the authority to attach those consequences. The respondent appeals to the lack of a sufficiently explicit signal in the legislation to support retrospective effect.
The retrospectivity argument also arose in R v Culley, heard in the same sitting of the Full Court as the present matter. In R v Culley, all of the potentially qualifying offences occurred prior to the commencement of the Sentencing Act 2017. In the present case, the offence said to be the “triggering offence” occurred after the commencement of the Act. However, a further distinction between the facts of the two cases is that, in the present matter, some of the offending for which the respondent was required to be sentenced occurred before the triggering offence. This gives rise to the question of whether the consequences of being classified as a serious repeat offender can attach to offending before the triggering offence. That question did not arise in R v Culley.
The respondent’s contention was that the sentence was carefully and properly constructed to ensure that only those offences that occurred (in a temporal sense) after the commission of the triggering offence received the application of the four-fifths rule. On this view, the consequences of being classified as a serious repeat offender are prospective only and should not be taken to operate in respect of offending that occurred prior to the offence that enlivened the classification. Accordingly, it was appropriate for the sentencing Judge to apply the four-fifths rule only to the driving offences, as they were both triggering and last in the sequence of offending.
There is a practical difficulty with accepting this submission in that it is clear that her Honour considered herself bound to apply the four-fifths rule to each of the qualifying offences even though the second of these (aggravated assault causing harm at 8.20 am) occurred prior to the triggering driving offences. Her Honour said that “for each of the offences of aggravated assault causing harm, aggravated likelihood of harm and aggravated driving dangerously to escape police pursuit” she was bound to apply the four-fifths rule.
In any event, the scheme of Division 4 does not support the respondent’s argument. Under s 53(1), both the commission of a relevant offence and conviction for that offence must occur before the offender is deemed to be a serious repeat offender. The classification attaches upon conviction and attaches the consequences to all subsequent sentences. The words in parentheses in s 54(1) serve only to make explicit that the incident of offending that triggered the classification is captured in the sentencing exercise.
This much is reinforced by the words of the relevant transitional provisions that state:
(1)Subject to this clause, this Act applies to the sentencing of a defendant after the commencement of this Act, regardless of whether the offence for which the defendant is being sentenced was committed before or after that commencement.
The respondent’s argument that s 54 does not authorise the special rules to operate on an offence prior to the triggering offence is not supported by s 54. In any event, the sentencing Judge did not sentence in that manner.
Does the four-fifths rule apply to all offences or just qualifying offences?
The respondent contends that there is an alternative basis on which the sentencing Judge’s sentence properly applied s 54. That basis is that s 54 limits the class of offences that attract the application of the four-fifths rule to the qualifying offences, and not, as the Director maintains, all offences for which the person is sentenced following their conviction for the triggering offence. Again, this dispute is resolved by the construction of s 54(1). The respondent submits that the words “an offence to which this Division applies” in s 52(3) have the effect that the consequences of being characterised as a serious repeat offender in s 54 only operate on those sentences imposed for offences to which the Division applies. Section 52(3) provides:
(3)An offence is one to which this Division applies if the offence is a serious offence and–
(a) a sentence of imprisonment (other than a suspended sentence) has been imposed for the offence; or
(b) if a penalty is yet to be imposed – a sentence of imprisonment (other than a suspended sentence) is, in the circumstances, the appropriate penalty.
The respondent submits that the Court should infer from the title of s 52, being ‘Interpretation and application’, that s 52(3) is an application subsection. This much is to be inferred from the fact that it is not, in contrast to s 52(1), definitional. However it does not follow, in my view, from the conclusion that s 52(3) is an application section, that the offences subsequently referred to in the Division are limited to those described in s 52(3). In fact, that would make it definitional. On the respondent’s approach, “an offence to which this Division applies” describes a cohort of offences and thereafter in the Division, any instance of the word “offence” must be understood to refer to that class. If correct, it would follow that in s 54 “an offence” means one of the class described in s 52(3).

However, by undertaking a broader examination of the use of the word “offence” and the term “offence to which this Division applies” in the Division, it becomes clear that this account should not be preferred.
If the approach for which the respondent contends was correct, there would be no need to further use the term “offence to which this Division applies” in the rest of the Division, to refer to the class. In fact, in s 53(1), that phrase is selectively used in sub-paragraphs (a) and (b), but not (c) and (d).
Section 53 states:
53—Serious repeat offenders
(1)A person will, by force of this subsection, be taken to be a serious repeat offender if—
(a)     the person (whether as an adult or as a youth)—
(i)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
(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 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
(c)     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
(d)     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. (emphasis added)
In (c) and (d), “offence” is used without the words “to which this Division applies”. The distinction strongly implies that (a) and (b) are referring to offences of the class set out in s 52(3), but (c) and (d) are referring to the specific offences described therein. This tells strongly against the proposition that the reference to “offence” in s 54(1) should be understood to mean the class of offences set out in s 52(3). The better view is that “offence” in s 54(1) simply means “offence”.
Given, however, that it has been drawn to the Court’s attention that there may have been a drafting oversight in relation to s 53 in that sub-paragraphs (d) subsumes the work of (a),[3] it is prudent to look further to reach a concluded view. Sections 54 and 55 (being the only further sections within the Division) continue to use the word “offence” and the phrase “offence to which this Division applies” in a manner that persuasively indicates that s 52(3) should not be read as establishing a set of offences that exhaustively attract the consequences set out in s 53, s 54 and s 55. The various instances are set out below, with the relevant words italicised:
54—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)     the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence;
(b)     it is, in all the circumstances, not appropriate that the person be sentenced as a serious repeat offender.
[3] Discussed further at paragraph [66].
55—Declaration that youth is recidivist young offender
(1) A youth is liable to be declared a recidivist young offender if—
(a)     the 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 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.
(2) If a court convicts a youth of a serious offence, and the youth is liable, or becomes liable as a result of the conviction, to a declaration that the youth is a recidivist young offender, the court—
(a)     must consider whether to make such a declaration; and
(b)     if of the opinion that the youth's history of offending warrants a particularly severe sentence in order to protect the community—should make such a declaration.
(3) If a court convicts a youth of a serious offence, and the youth is declared (or has previously been declared) to be a recidivist young offender—
(a)     the court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence (but, in the case of the Youth Court, the limitations relating to a sentence of detention under section 23 of the Young Offenders Act 1993 apply to the sentence that may be imposed by the Youth Court on the recidivist young offender); and
(b)     any non-parole period fixed in relation to the sentence must be at least four-fifths the length of the sentence.
What is evident from the way in which “offence” is used in Division 4 is that the class of conduct that constitutes an “offence” has been sub-classified in various ways. There are, for example, “serious offences”, “sexual offences” and “offences to which this Division applies”. The first two examples are sub-classes of offences. The latter is a class defined by reference to the penalty that has been imposed or would be appropriate to impose. None of the definitional or application provisions purport to re-define the word “offence”. Therefore, the best construction is that where the word “offence” appears without any qualifier, it retains its usual meaning.
Section 52(3) does not define the class of offences that attract the operation of the four-fifths rule. Rather, s 52(3) describes the second of the two attributes that offending must have before it operates as a qualifying offence. First, it must be serious by reference to inclusion of the list of types of offences in s 52(1) under the definition of ‘serious offence’. Second, it must have attracted or be capable of attracting the imposition of a penalty of imprisonment.
The respondent’s contention that s 52(3) limits the class of offences to which those consequences attach, cannot be sustained on the construction argued for by the respondent.
The four-fifths rule could not have been intended to apply to sentences for all offending
The respondent argued further that if s 54 were to apply to any sentence imposed on a person after their classification a serious repeat offender, the four-fifths rule is a surprising response given that non-parole periods are only likely to be fixed in a small proportion of sentences. This suggests that the offences intended to be caught were in fact those more serious offences in respect of which custodial sentences with non-parole periods are imposed.
That argument is met simply by observing that the provision accommodates those cases in which a non-parole period is not required to be fixed, by the use of the word ‘any’ at its commencement:
(b)any non-parole period fixed in relation to the sentence must be at least four-fifths the length of the sentence.
For those offences not requiring the fixing of a non-parole period, the lifting of the requirement of the Court to sentence proportionally, contained in s 54(1)(a), is still applicable.
Does s 54 operate on all subsequent offending?
The respondent suggested that this Court not consider itself bound to follow the obiter observations in R v Phanos[4] that the consequence of classification as a serious repeat offender is one that operates on every sentence the offender thereafter receives. The submission advanced was that the Court in R v Phanos had not had the benefit of full argument on the issue. However, this issue is not required to be determined as the respondent has not been sentenced on a subsequent occasion.
[4] [2015] SASCFC 26; (2015) 122 SASR 129.
The sentencing Judge imposed multiple sentences
The Director submitted that the court record did not reflect the Judge’s sentence insofar as it indicated the imposition of separate sentences for each count. The Director submitted that the remarks revealed that two sentences were imposed, each utilising s 26 of the Sentencing Act 2017, and the second was made cumulative on the first. That provided, according to the Director, “the sentence” the non-parole period for which attracted the four-fifths rule.
The respondent submitted, on the other hand, that the sentence imposed for the driving offending (two years, three months) is “the sentence” for the purposes of s 54 and to which the four-fifths rule was required to be applied. It will be recalled that s 54 is in the following terms:
54—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. (my emphasis)
The sentencing remarks bear out the Director’s account of the effect of the sentencing Judge’s decision. This undermines the respondent’s argument that the sentencing Judge applied the four-fifths rule to “the sentence” within the meaning of s 54. I do not accept that, by imposing several sentences, the sentencing Judge enabled herself to impose the four-fifths rule in a manner that complied with s 54 without imposing the rule on the non-parole period for all of penalties amalgamated. In my view it is tolerably clear that her Honour imposed a sentence on the respondent and yet applied the four-fifths rule in relation to only the non-parole period for that part of the penalty associated with the driving offences. Section 54 obliged the sentencing Judge to apply the four-fifths rule to the non-parole period fixed for the whole of the sentence.
In contrast to s 47, which operates to attach a sentencing consequence to particular offences, s 54 attaches consequences to an offender. Once deemed a serious repeat offender, the four-fifths rule operates upon all of the sentence inclusive of all offending. Section 47 restricts those consequences to serious offences, and employs a mechanism for reconciling non-parole periods of different lengths by requiring the longest thereof to prevail. It appears from the sentencing Judge’s remarks that her Honour was applying the regime established by s 47. Having found that her Honour imposed two penalties and then, pursuant to s 26, combined them into a single sentence, the provisions of s 54 required the fixing of a single non-parole period to that sentence.
An error has occurred and it is appropriate to re-sentence
I am satisfied that an error in sentencing has occurred in that the sentencing Judge was obliged on the application of s 54 to fix the non-parole period for the sentence of five years and nine months by reference to the four-fifths rule and did not do so. Therefore, I would grant permission to appeal on the Director’s application. Various significant questions arise as to the proper construction of the serious repeat offender provisions in the Sentencing Act 2017 that must now be addressed.
Issues on re-sentencing
Upon re-sentencing, the question of whether the respondent is a serious repeat offender must be re-visited in light of the Director’s observation that there is at least a strong argument that the sentencing Judge’s finding – made on counsels’ submissions – was wrongly made.
The respondent is not a serious repeat offender if the second and third qualifying offences were not committed on “separate occasions”, because in that case the respondent would not have committed three qualifying offences.
Whether a serious repeat offender
Division 4 of Part 3 of the Sentencing Act 2017 is headed “Serious Repeat Adult Offenders and Recidivist Young Offenders”. It commences with an interpretation section that sets out a number of definitions including:
serious repeat offender means—
(a)a person who is a serious repeat offender under section 53(1); or
(b)a person declared to be a serious repeat offender under section 20B of the Criminal Law (Sentencing) Act 1988 as in force immediately before the commencement of section 17 of the Statutes Amendment (Serious Firearm Offences) Act 2012; or
(c)a person declared to be a serious repeat offender under section 20B of the Criminal Law (Sentencing) Act 1988 as in force immediately before the repeal of that Act;
It was not disputed that if the respondent is a serious repeat offender it is because he comes within section 53(1)(b). Section 53 states:
53—Serious repeat offenders
(1)A person will, by force of this subsection, be taken to be a serious repeat offender if—
(a)     the person (whether as an adult or as a youth)—
(i)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
(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 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
(c)     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
(d)     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.
(2)     For the purposes of this section, when determining the number of occasions on which a person has committed a particular kind of offence, the offence for which the person is being sentenced is to be included if it is of the relevant kind.
Mr Press SC invited the Court to note and set aside as irrelevant to this particular appeal the fact that s 53(1)(a) has no work to do because all who meet its criteria have already been qualified by s 53(1)(d). To qualify under (d), the offender need only have been convicted on at least 2 occasions of a Category A serious offence, whereas to qualify under (a) the offender must have been convicted on three separate occasions of a Category A serious offence to which the Division applies, as set out in s 52. Before an offender qualifies under (a), he or she will have already qualified under (d).
Mr Press SC also pointed out that whereas (a) and (b), by virtue of referring back to s 52(3), incorporate a requirement relating to the severity of the sentence imposed or appropriate, (c) incorporates no such requirement.
Acknowledging these observations, there was no dispute that the respondent’s 2011 offending constituted a qualifying offence within s 53(1)(b) and was the respondent’s first qualifying offence. However, the question for consideration is whether the respondent has subsequently been convicted of a further one or two qualifying offences. If only one, he is not a serious repeat offender as he has not met the threshold of three qualifying offences. This in turn requires consideration of whether the offending on 20 July 2016 occurred on “separate occasions” such that it contributed two qualifying events and triggered his classification as a serious repeat offender.
The respondent’s counsel, in written submissions filed following the appeal, conceded that each of the following offences for which the respondent was convicted is an offence to which Division 4 applies:
·Aggravated theft using force committed on 5 November 2011;
·Aggravated assault causing harm committed on 20 July 2016 at about 8.20 am;
·Aggravated creating likelihood of harm committed on 20 July 2016 at about 11.30-11.40 am; and
·Aggravated driving dangerously to escape police pursuit on 20 July 2016 at about 11.30-11.40 am.
It was also not disputed that the last two of those offences occurred within one occasion. Accordingly, for the respondent to be a serious repeat offender, the second offence set out above must have occurred on an occasion that was separate from the occasion on which the last two offences occurred.
Section 53(1) which establishes the conditions on which an offender is deemed to be a serious repeat offender has not been the subject of judicial consideration in its current context within the Sentencing Act 2017.
General approach to construction
The proper approach requires consideration of the terms of the provision in its broader context. As McHugh, Gummow, Kirby and Hayne JJ stated in Project Blue Sky Inc v Australian Broadcasting Authority:[5]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
[5] [1998] HCA 28; (1998) 194 CLR 355 at 381 [69].
The purpose of schemes such as that contained in Division 4 has been to address repeated conduct to protect the community from the offending. Barwick CJ in R v White said:[6]
... [T]he 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.
[6] [1968] HCA 19; (1968) 122 CLR 467 at 471.
The mechanism by which this is achieved is by removing the usual requirement to apply the principle of proportionality. In R v Jackamarra,[7] Nicholson J quoted from R v Williams[8] and R v P, A; P, A v Police[9] and said:[10]
With respect, I agree with the observations of both Sulan J and White J. In particular, I agree that only in rare cases will a court be justified in departing from the recognised principle of proportionality and that a declaration under s 20B should be made only on cogent evidence that the history of offending of the person in question warrants a particularly severe sentence in order to protect the community. I also agree that a judge making the declaration needs to have a clear appreciation of the exceptional nature of the course which is being undertaken...
[7] [2013] SASCFC 98 at 32 [101].
[8] [2006] SASC 377; (2006) 96 SASR 226.
[9] [2013] SASCFC 3.
[10] [2013] SASCFC 98 at 32 [101].
The consequences of attracting the classification of a serious repeat offender are significant. In addition to the lifting of the proportionality requirement, the offender is subject to a non-parole period that is a mandated proportion of the sentence. Given these consequences, the approach to statutory construction has erred towards treating such provisions as penal, with the attendant strictness of approach. In respect of the predecessor scheme, which was in relevantly identical terms and contained in the Criminal Law (Sentencing) Act 1988, the Chief Justice with whom Peek, Blue and Nicholson JJ agreed, considered the appropriate approach to be taken in R v Phanos.[11]
[11] [2015] SASCFC 26; (2015) 122 SASR 129.

The Chief Justice said:[12]
This appeal raises questions of the construction and application of the judicial power to declare persons to be serious repeat offenders. Two fundamental principles must inform the answers to those questions. First, the common law sentencing principle of proportionality is a critical safeguard of the liberty of the individual. It follows that legislative encroachment on the principle should be read strictly on the basis that departure from the principle is intended only when and to the extent expressly and clearly declared.
Secondly, Parliament’s choice to decree legislatively that a class of offenders be denied the protection of the proportionality principle is no reason for the courts to construe more widely the judicial power to declare offenders to be serious repeat offenders. Parliament in a representative democracy is responsible to its electors for its legislative policy. The judiciary is bound by the principle of legality to construe statutes in accordance with common law protections unless the statutory language demands otherwise.
[12] [2015] SASCFC 26; (2015) 122 SASR 129 at 131 [5]-[6].
I consider the approach to be appropriate in the construction of the current scheme.
Separate occasions
Against those considerations, it is necessary to construe the term “separate occasions”. It has not yet been the subject of judicial consideration in the setting of the Sentencing Act 2017.
Judicial consideration of earlier iterations of the relevant provision are not particularly instructive as to the meaning of the term in its current context. This is because of the shift from the ‘occasion’ being that of conviction to one of conduct. In the early habitual criminal laws, the event to which the classification as a habitual criminal attached was an occasion of conviction. The concept as used in s 319 of the Criminal Law Consolidation Act 1935 (“CLCA”) was examined by the High Court in 1968 in R v White.[13] However under s 319 of CLCA as it stood in 1968, the enlivening condition was that the offender had to be convicted “on at least three occasions”. The occasion was the legal event of conviction. Thus the Court’s reasoning has limited application to the modern version of the concept in which the term “occasion” is to be understood as an “occasion of conduct”. The earlier scheme required “occasion” to be understood by reference to a much more distinct, discrete event, being that of conviction.
[13] [1968] HCA 19; (1968) 122 CLR 467.
The relevant provision remained in that form in the CLCA and was carried over into the Criminal Law (Sentencing) Act 1988 (SA) (“CLSA”) until the 2003 amendments introduced Division 2A into the CLSA. The habitual criminals declaration regime of s 22 was repealed and under the new s 20B “separate occasions” became attached to the conduct of the accused:
20B. (1) A person is liable to be declared a serious repeat offender if the following conditions apply:
(a) the person has been convicted of at least three offences to which this section applies; and
(b) there were at least three separate occasions on which an offence to which this section applies was committed.
This is significant because an occasion of conviction is an ascertainable fact the boundaries of which are clear, whereas an occasion of conduct is defined by reference to a number of variables.
In its current context within the Sentencing Act 2017 the term “occasion” connotes an event defined by reference to temporal limits. In the context of s 53, the relevant event is the offending conduct. An occasion in the context of offending conduct identifies a period from the beginning to the end of that conduct. However, offending conduct is constituted both by physical acts and a mental state. A mental state may endure continuously for a period in which distinct physical acts occur, creating uncertainty as to whether one or several occasions best describes the events.
In Tognolini v The Queen,[14] Maxwell P, Buchanan and Redlich JJA considered the word ‘occasion’ in relation to an offence of maintaining a sexual relationship with a child under the age of 16 under the Crimes Act 1958 (Vic), which required the prosecution to prove that on at least three separate occasions, the accused did certain unlawful acts in respect of the child. The Court said:[15]
In our view, it is clear from the terms of subsections 47A(2) and (3) that the legislature intended to draw a distinction between an ‘act’ and an ‘occasion’. The former would be constituted by the actus reus of an offence. The latter is a reference to a juncture of circumstances amounting to an episode. Thus the first definition of ‘occasion’ in the Macquarie Dictionary is: ‘a particular time esp. as marked by certain circumstances or occurrences’.
[14] [2011] VSCA 113 (2011); 32 VR 104; (2011) 211 A Crim R 68.
[15] (2011) 211 A Crim R 68 at 72 [19].
When are occasions “separate”?
“Separate” as a qualifier to “occasion” acknowledges that occasions of offending conduct may be consecutive and may overlap. “Separate” serves to require temporal distinction between occasions of offending conduct. It is useful to return to Tognolini v The Queen. The case concerned s 47A of the Crimes Act 1958 (Vic) which at that time required the prosecution to establish that on three separate occasions during a particular period the accused did an act in relation to a particular child which would constitute an offence against certain provisions of the Act. The Court found that “it would not be open as a matter of law to conclude that [the alleged acts] occurred on separate ‘occasions’ unless there is a clear separation in time or circumstance between the acts.”[16] The Court said:[17]
Of more immediate relevance is a recent decision of the Northern Territory Court of Criminal Appeal, to which senior counsel for the Crown helpfully drew our attention. In Kelly v The Queen, Riley J said of a similar provision:
There is nothing in the section or in the expression ‘three or more occasions’ to suggest the legislature intended that any particular period of time or any particular circumstance would constitute an occasion. In my view, the word ‘occasions’ within the expression contemplates at least three separate events or occurrences. There would not be more than one occasion if the acts were effectively part of one continuous occurrence. Whether two or more acts defined to constitute an offence of a sexual nature occurred on one or more occasions will always be a matter of fact for the jury to resolve. However, in my view, for more than one act to be described as occurring on a separate occasion there must be present, at least, a temporal separation or a separation in circumstances between the acts sufficient to warrant such a description.
We respectfully agree. As McHugh J said in KRM, the ‘occasion’ on which an act takes place will be defined for the purposes of s 47A – and must be identified by the prosecution – by reference to the surrounding ‘circumstances or occurrences’. Where two (or more) acts occur, it will not be open as a matter of law to conclude that they occurred on separate ‘occasions’ unless there is a clear separation in time or circumstance between the acts. DDJ, for example, was a case where, although the circumstances of the sexual abuse remained largely unchanged throughout the sexual relationship, the individual acts relied on to establish the s 47A count occurred on different days and, hence, on separate occasions.
In the present case, as senior counsel for the Crown properly conceded, the sexual acts relied on were not separated in either time or circumstance. As described by the complainant, the individual sexual acts took place as part of an unbroken sequence of sexual activity on the final night. This was a single occasion, a single episode. As a matter of law, therefore, the evidence of the individual acts which took place on that night could not have established the s 47A count. (footnotes omitted)
[16] (2011) 211 A Crim R 68 at 70 [4].
[17] (2011) 211 A Crim R 68 at 73 [21]-[23].
It is possible to discern, then, that an occasion may give rise to multiple identical or different offences, but also that multiple offences of the same nature can properly be characterised as separate if they are temporally or circumstantially distinct. To analyse it by analogy to a course of conduct, however, would be imprudent. The phrase “course of conduct” is employed in the Sentencing Act 2017 and was not used for this Division. Nevertheless, it is evident from the Second Reading Speech, to which resort may be had for the ascertainment of the mischief the provision is directed at addressing,[18] that an occasion was intended to cover both an isolated incident and a course of conduct. In the Second Reading Speech the Attorney-General said:
The trigger for the declaration of a serious repeat offender is conviction for at least three offences punishable by a maximum of five years or more (that is the indictable offences listed) and that either a sentence of actual imprisonment has been imposed for each of these offences or, if sentence has yet to be imposed, actual imprisonment would be imposed for each of those offences. The offences must have been committed on at least three separate occasions or in the course of at least three separate courses of conduct. It does not matter whether the offences are dealt with separately, or together, or are sentences pursuant to s18A of the Criminal Law (Sentencing) Act so long as there are three separate courses of conduct involved [...] For example: A defendant is convicted in one trial of having committed a series of rapes. These rapes occurred in 1999, 2000 and 2001. That defendant is liable to be declared a serious repeat offender if a sentence of actual imprisonment would have been imposed for each of these offences, whether or not it is proposed to sentence the defendant separately or under s 18A. (emphasis added)
[18] K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 at 521 [51] (French CJ); Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128 at 21 [66] (Hinton J).
Regarding the proper use of extrinsic materials French CJ and Hayne J said in Certain Lloyd’s Underwriters v Cross:[19]
Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have”. (footnotes omitted)
[19] Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at 289 [25] (French CJ and Hayne J).
It is not appropriate to read into the Division the concept of courses of conduct when those words do not occur there. However, the explanatory words suggest that the mischief to which the section and the Division is directed is addressed by understanding an occasion as a single event of conduct or a course of conduct.
This is supported by the Court’s analysis in R v M, STE[20] in its consideration of the term “separate offences” in the scheme for sentencing serious repeat offenders as it was in s 20B of the CLSA after amendments in 2003. The Court said:[21]
It is clear from a plain reading of s 20B that, where a person has committed the requisite number of separate offences or separate courses of conduct, the discretion to make a declaration will be enlivened, regardless of when the person is convicted of those offences and when the person is sentenced for those offences… For example, a person who is convicted at the one time of two separate serious sexual offences may be declared a serious repeat offender despite the convictions being entered instantaneously. Where an offender appears before a court for the first time and is convicted of the requisite number of offences committed on separate occasions, the discretion to make a declaration is enlivened. This construction is consistent with the High Court’s analysis in White.
[20] [2013] SASCFC; (2013) 118 SASR 101.
[21] (2013) 118 SASR 101 at 109-110 [37].
A course of conduct may describe one or many occasions. Where a person has committed multiple offences in succession, continuity of intent may provide the circumstance that leads to the course of conduct being characterised as a single occasion. This is more likely to be the case where the multiple offences are different in nature. But where there are multiple offences of the same kind, such as sexual offending against the same victim, or drug dealing over the course of a period of time, continuity of intent may not establish that the multiple offences constitute a single episode. It will always be a matter to be determined by reference to all of the circumstances, though not a matter of discretion. That a course of conduct may describe several occasions was observed by Parker J in O’Dea v Commissioner of Police.[22] The Court was required to determine whether a person had committed certain offences upon a sufficient number of occasions to enliven classification as a “registerable repeat offender” for the purposes of the Child Sex Offenders Registration Act 2006. His Honour said:[23]
The reference by the sentencing judge to a course of conduct simply meant that he had repeatedly committed the same type of offence with the same victim after he had groomed her. It did not mean that he had not committed the offences on separate occasions as that concept was explained by the High Court in R v White. He is clearly a “registrable repeat offender” under either limb of the definition in s 4(1) of the Act on the basis that he committed a relevant offence on the requisite number of separate occasions.
[22] [2016] SASCFC 58; (2016) 125 SASR 159.
[23] (2016) 125 SASR 159 at 163 [19].
In my view, the analysis of Riley J in Kelly v The Queen,[24] and endorsed in Tognolini v The Queen, provides the most instructive approach to the way in which the term “separate occasions” should be understood to operate within s 53. There must be a temporal separation or a separation in circumstances between acts to describe them as having occurred on separate occasions.
[24] [2010] NTCCA 8; (2010) 27 NTLR 181.
Was the aggravated assault on a separate occasion from the driving offences?
The respondent’s conduct entailed a series of distinct and different offences in different places against different victims over approximately three hours. The first portion of the offending was committed with a co-offender; the latter offences were committed alone. The earlier offending had repeated features of stealing, threatening and assaulting. The later offending consisted of driving offences. From the respondent’s perspective and perhaps the public’s, there was a course of conduct that commenced when the respondent and his co-offender stole the white Holden sedan, and ended (in respect of the respondent) when he was arrested. In between, there was no time at which there was a break in the unlawful activity. The respondent remembers little of it. It was, as the sentencing Judge said, a rampage.
To characterise the respondent’s conduct as separate occasions of offending is inconsistent with the ordinary meaning of the words “separate occasions” in their factual context. Clearly, the fact that the assault and the driving offences occurred on a single day suggests that temporally, the conduct is open to be characterised as having occurred on a single occasion. However, it is the circumstances of the conduct that is determinative of whether the earlier and later offending amounted to one or two occasions. That the offending commenced as joint but ended as individual does not provide sufficient basis to find that there were two occasions. Nor does the fact that the nature of the offending changed from an assault to that of driving offences or that the offending occurred in different places with different victims. These features are distinguishing primarily in a legal sense. When the focus of the legislative scheme changed from occasions of conviction to occasions of conduct, it signalled a shift to the Court having to examine the behaviour rather than the legal treatment of the behaviour. In the respondent’s case, the behaviour has the character of continuity, not separateness.
I conclude that the respondent is not a serious repeat offender. He does not fall to be considered as such in respect of any future offending until such time as he commits a further qualifying offence. Any task of re-sentencing would need to proceed on the basis that the special rules in s 54 do not apply.
Permission
Mr Press SC submitted that if the Court arrived at the conclusion that the respondent is not a serious repeat offender, it would be appropriate to grant the Director permission but dismiss the appeal. A Crown appeal against sentence will only be permitted in rare and exceptional circumstances.[25] The appeal involves an important matter of statutory construction in respect of new legislation.[26] Permission should be granted.
[25] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295.
[26] See: R v Oake [2017] SASCFC 82; (2017) 128 SASR 260 at 262 [4] (Vanstone J).
In this case, an error has been identified that is more fundamental than that which caused the appeal to be brought. The respondent was not eligible to be sentenced as a serious repeat offender. The Director’s primary argument is not reached. The respondent has not appealed. Both parties consider that the overall sentence and non-parole period, set at approximately 55% of the sentence, to be appropriate and fair.
It follows that upon granting permission, dismissal of the Director’s appeal is the appropriate order.