R v Hopkins - [2006] SADC 1

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HOPKINS
Reasons for Decision of His Honour Acting Judge Wilson
10 January 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
One count of gross indecency, five counts of indecent assault, and five counts of unlawful sexual intercourse by a guardian or teacher.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
Application by the prosecution for an order pursuant to s 23 of Criminal Law (Sentencing) Act 1988 (as amended in 2005) to remand a convicted defendant awaiting sentence to appear before the Supreme Court to be dealt with - Defendant had pleaded guilty to all counts in Magistrates Court – Defendant had then been committed to District Court for sentence – Allocutus given – Amendment of Criminal Law (Sentencing) Act 1988 by Statutes Amendment (Sentencing of Offenders) Act came into operation on 11 August 2005 – Whether defendant had been “convicted” – Whether Amending Act invalid as retrospective criminal legislation – Whether involuntary detention in a prison is non-punitive – Effect of predictions of future criminal dangerousness – Whether calling imprisonment by the name “detention” alters its character – Whether constitutional and other issues create invalidity – all issues per incuriam.
Criminal Law (Sentencing) Act 1988 s 23; Statutes Amendment (Sentencing of Sex Offenders) Act 2005 ; Acts Interpretation Act 1915 ; Criminal Law Consolidation Act 1935 s 350, referred to.
R v England (2004) 89 SASR 316; Fardon v Attorney-General Qld (2004) 78 ALJR 1519, applied.
Samuels v Songaila (1977) 16 SASR 397, considered.

R v HOPKINS
[2006] SADC 1

Ronald William Hopkins is a 69-year-old man who appeared before me for arraignment on 5 September 2005 on a series of charges alleging sex offences allegedly committed between 1 November 1975 and 31 December 1979 (one count); between 1 January 1985 and 31 December 1985 (two counts); between 1 January 1985 and 31 January 1986 (one count); between 1 January 1988 and 31 December 1991 (six counts); and between 1 January 1991 and 31 December 1991 (one count). The alleged offences were one count of gross indecency, five counts of indecent assault and five counts of unlawful sexual intercourse by a guardian or teacher.
In fact, the defendant had pleaded guilty to each of those offences on 5 August 2005 in the Adelaide Magistrates Court and he had been committed to the District Court for sentence.
The allocutus was given in this Court on 5 September 2005. The defendant’s antecedent report was tendered, whereupon I called for a copy of the sentencing remarks of the judge of this Court who had sentenced the defendant on 16 April 1999 for one count of indecent assault and six counts of unlawful sexual intercourse, offences committed between May 1997 and August 1998. I noted that the defendant had, on 4 April 2005, been sentenced in the Adelaide Magistrates Court for one count of indecent assault and five counts of gross indecency, offences committed in the period between December 1994 and August 1995.
The defendant was then remanded in custody to 21 September 2005.
In the period between 5 September 2005 and 21 September 2005 it came to my attention that the Statutes Amendment (Sentencing of Sex Offenders) Bill 2005 had finally passed both Houses of Parliament and was likely to have been assented to and was likely to have come into operation. In fact, the Bill was assented to on 14 July 2005 and came into operation as the Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (hereinafter referred to as ‘the Amending Act’) on 11 August 2005.
At the further hearing on 21 September 2005, Ms A Pienaar, counsel for the prosecution, relied upon the application of the Director of Public Prosecutions dated 21 September 2005, and applied for an order pursuant to s23(2)(b) of the Criminal Law (Sentencing) Act1988, as amended by the Amending Act, remanding the defendant, as a convicted person, in custody to appear before the Supreme Court to be dealt with under s23.
This application having been made pursuant to the recently-enacted Amending Act, and the defendant’s counsel not having had an opportunity to consider the implications of the application, or to take instructions as to what the defendant’s attitude to the application might be, and the prosecution not opposing an adjournment, I granted the defendant’s application for an adjournment made by Mr Kelly on the defendant’s behalf, and the defendant was further remanded in custody to 30 September 2005.
In the period between 21 September 2005 and 30 September 2005 I gave some consideration to a number of the questions, constitutional and otherwise, which seemed to me to arise from the Amending Act, including inter alia:
1.Whether the defendant, having pleaded guilty to relevant offences in a Magistrates Court, and having been remanded for sentence to the District Court where the allocutus was given, may be said to have been ‘convicted’ of those relevant offences.
2.Whether, if the effect of the amendment is to increase the penalty for relevant offences, the amendment applies only to relevant offences committed after the Amending Act came into operation.
3.Whether the transitional provision, s9, is retrospective or retroactive criminal legislation and therefore void.
4.Whether the effect of s16 of the Acts Interpretation Act 1915 is to save the operation of the Criminal Law (Sentencing) Act1988 and, because the amendment purports to increase the prescribed ‘penalty’, not affect any punishment liable to be incurred or imposed prior to the amendment [see Samuels v Songaila (1977) 16 SASR 397].
5.Whether the enactment of the Amending Act and, in particular the new s23, falls within the legislative competence of the South Australian Parliament and is, accordingly, constitutionally valid.
6.Whether the involuntary detention of an offender in a prison should be characterised as non-punitive.
7.Whether the enactment of the Amending Act is beyond legislative power.
8.Whether the powers sought to be given to the Supreme Court of South Australia under the Amending Act compromise the institutional integrity of the Supreme Court and of the judicial system effected by Ch III of the Constitution of Australia.
9.Whether the Amending Act infringes the requirement of Ch III of the Constitution of Australia that any Supreme or District Court in Australia only exercise the judicial power of the Commonwealth consistently with the doctrine of the separation of powers.
10.Whether the Amending Act, insofar as it contemplates the making of predictions of future criminal dangerousness, represents a departure from past and present notions of the judicial function in Australia, and, as framed, is invalid.
11.Whether the Amending Act, by introducing a notion of punishment in advance for crimes ‘feared, anticipated or predicted in the future’ and requiring courts to order detention in respect of perceived future risks is invalid as being inconsistent with traditional judicial process.
12.Whether calling imprisonment by a different name, namely ‘detention’, alters its true character or punitive effect and amounts to new punishment beyond that already imposed in accordance with law, and therefore makes an order made pursuant to s23(5) or (6) invalid.
13.Whether the Amending Act involves the judiciary in acting on psychiatric assessments of risk alone and thereby constitutes ‘an attempt to cloak unreliable and potentially unjust guesswork with the authority of the judicial office’ and is, therefore, repugnant to the judicial process.
14.Whether the Amending Act breaches the separation of powers doctrine by conferring on the Supreme Court the power to order the indeterminate preventive detention of certain identifiable individuals.
15.Whether the Amending Act, conferring on the Supreme Court, retrospectively, the power to ‘impose’ some ‘additional burden, obligation or penalty’ is invalid.
16.Whether the Amending Act is unconstitutional on the ground that it constitutes a usurpation by the legislature of the judicial power.
17.Whether the Amending Act infringes the right, implied by the Constitution of Australia, of a person ‘not to receive a more severe punishment than was applicable when the offence was committed’ or whether the Amending Act infringes the implied right of every accused person ‘to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of ultimate sentencing’.
18.Whether the Amending Act, insofar as it increases the penalty from the one that was applicable when the offence was committed, is inconsistent with the common law prescription against retrospectivity.
19.Whether the Amending Act is ad hominem legislation and therefore invalid.
I also gave some preliminary consideration to whether I should, pursuant to s350 of the Criminal Law Consolidation Act1935, reserve a relevant question or relevant questions for consideration and determination by the Full Court, but I reached the conclusion that I should not do so.
At the hearing on 30 September 2005 some more dialogue occurred between counsel for the prosecution, defence counsel and myself, regarding the potential issues that had arisen following the Amending Act coming into operation. I then decided, in the exercise of this Court’s discretion, to grant both counsel further time to research the matter. Before adjourning consideration of the matter and remanding the defendant to a later date, I gave consideration to the desirability of using the time to order (and ensure) that a pre-sentence report in the form of a psychiatric report be provided to this Court.
After hearing from counsel on both sides I made an order that a psychiatric report be prepared and submitted to this Court. The defendant was thereupon remanded to a date late in 2005.
Finally, and pursuant to leave granted to have the matter called on earlier for rescheduling of the next hearing date, the matter was called on for further hearing on 19 December 2005. On that occasion a memorandum dated 14 October 2005 on questions of law was formally tendered by Mr Kelly. An inquiry was made of Mr Kelly as to what the defendant’s attitude was as to the application of the Director of Public Prosecutions dated 21 September 2005. More specifically, I inquired of Mr Kelly as to whether he had ‘any application to make on any question of law’, and by implication, whether he was instructed to resist the making of the order sought. Mr Kelly replied in the negative and intimated that he was satisfied, and presumably his client accepted, at least for the time being, that the amending legislation is not ultra vires, or otherwise unconstitutional.
Mr Kelly went on to state that he was of the view that the defendant had been ‘convicted to the extent that he entered pleas in the lower court and is remanded in custody for sentence’. I thereupon intimated that I was tentatively of the view that the application of the Director of Public Prosecutions should be granted, and the defendant was further remanded till this day for the announcement of my decision and for the giving of some reasons.
I have now had an opportunity to reflect upon the issues some more, and, though not having the benefit of legal argument on both sides because the prosecutor’s application was not, in the end, resisted, I am confirmed of the view that I previously held. My brief reasons are as follows.
Notwithstanding the persuasive (indeed, to me, convincing) reasons for judgment of Kirby J in the recent High Court of Australia case of Fardon v Attorney-General Qld (2004) 78 ALJR 1519 at pp.1542 to 1557, where his Honour was in dissent, and notwithstanding what was stated by members of the Full Court of the Supreme Court of South Australia in Samuels v Songaila – supra - I consider myself to be bound to apply the principles set forth by their Honours in the majority in the High Court, and, in particular, I am constrained to adopt (and apply) what was stated by Gummow J at p.1535, and by Callinan and Heydon JJ at p.1561 to 1562 and at p.1564. I should proceed upon the basis that the Amending Act is not invalid [see also R v England (2004) 89 SASR 316].
Being of the opinion that the defendant is convicted of relevant offences between 1975 and 1991, and that the prosecutor has applied to have the defendant dealt with under s23 of the Criminal Law (Sentencing) Act 1988 (as amended in 2005), being a valid provision, this Court will, instead of sentencing the defendant itself, remand the defendant, as a convicted person, in custody to appear before the Supreme Court at its next arraignment sittings to be dealt with under that section.