R v Jackamarra

Case [2013] SASCFC 98

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v JACKAMARRA

[2013] SASCFC 98

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Nicholson)

26 September 2013

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

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

Appeal against sentence totalling 11 years 10 months for escaping custody, aggravated robbery (2 counts), aggravated causing harm with intent to cause harm, illegal use (3 counts) - whether individual sentences making up the total were manifestly excessive - whether judge erred in making a serious repeat offender declaration under s 20B Criminal Law (Sentencing) Act 1988 - whether reference to a sentence of imprisonment in s 20A(3)(a) encompasses sentences of detention under the Young Offenders Act 1993.

Held (Blue and Nicholson JJ; Vanstone J dissenting): appeal allowed - declaration set aside - not necessary to decide if sentences of detention qualified under s 20A(3) - appellant resentenced to nine years six months with a non-parole period of six years four months to be deemed to have commenced on 10 October 2012.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 20A, s 20B, s 20C, s 32; Young Offenders Act 1993 (SA); Correctional Services Act 1982 (SA) s 66, referred to.
R v Pottage [2010] SASCFC 75; R v Brady (2011) 110 SASR 246; Attorney-General v Tichy (1982) 30 SASR 84; R v Copeland (No 2) [2010] SASCFC 61, (2010) 108 SASR 398, discussed.
R v Williams (2006) 96 SASR 226; R v Saunders [2011] SASCFC 37; R v Ainsworth [2008] SASC 67, (2008) 100 SASR 238; R v Symonds [1999] SASC 217; R v Van Der Horst [2006] SASC 243; R v Place (2002) 81 SASR 895; R v Rossi (1998) 142 LSJS 451; R v E, AD [2005] SASC 332; (2005) 93 SASR 20, considered.

R v JACKAMARRA
[2013] SASCFC 98

Court of Criminal Appeal:  Vanstone, Blue and Nicholson JJ

  1. VANSTONE J:     The appellant stood for sentence in the District Court for escaping custody and for serious offences committed while he was at large.  The gravest of those were two armed robberies and aggravated causing harm with intent.  The new sentence of imprisonment imposed was ordered to follow the sentence being served at the time of the escape.  The new sentence totalled 11 years and 10 months and the non-parole period (fixed in relation to the total period to be served) was 11 years 9 months and 18 days, backdated to the time of commencement of the original sentence.  The appellant was an Aboriginal man aged 22 years at the time of sentence.

  2. Upon appeal it is argued that the sentence is manifestly excessive and that the judge erred in making a declaration that the appellant is a “serious repeat offender”: s 20B Criminal Law (Sentencing) Act 1988

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R v Jackamarra [2013] SASCFC 98
Case
[2013] SASCFC 98
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentencing of an appellant who had been convicted of escaping custody, two counts of aggravated robbery, aggravated causing harm with intent to cause harm, and three counts of illegal use. The appellant challenged the total sentence of 11 years and 10 months, arguing that the individual sentences were manifestly excessive and that the sentencing judge erred in making a declaration as a serious repeat offender under section 20B of the *Criminal Law (Sentencing) Act 1988*. A key legal issue was whether sentences of detention under the *Young Offenders Act 1993* qualified as "sentences of imprisonment" for the purposes of section 20A(3)(a) of the *Criminal Law (Sentencing) Act 1988*.

The Full Court of the Supreme Court of South Australia, with Vanstone J dissenting, allowed the appeal. The majority found that the sentencing judge had erred in making the serious repeat offender declaration. While acknowledging that the appellant's offending history, including adult convictions for serious offences, did enliven the discretion to consider such a declaration, the court determined that the declaration should not have been made in this instance. The reasoning focused on the purpose of the declaration, which is to warrant a particularly severe sentence to protect the community, and the consequences of such a declaration, particularly the mandatory non-parole period of four-fifths of the head sentence.

The court held that the individual sentences imposed were within the sentencing judge's discretion and that the total sentence was also appropriate. However, the error in making the serious repeat offender declaration necessitated a resentence. The appeal was allowed, the declaration was set aside, and the appellant was resentenced to nine years and six months imprisonment, with a non-parole period of six years and four months, deemed to have commenced on 10 October 2012. The majority did not find it necessary to definitively determine whether sentences of detention under the *Young Offenders Act 1993* qualified under section 20A(3)(a).

Orders

Orders of the court

Held (Blue and Nicholson JJ; Vanstone J dissenting): appeal allowed - declaration set aside - not necessary to decide if sentences of detention qualified under s 20A(3) - appellant resentenced to nine years six months with a non-parole period of six years four months to be deemed to have commenced on 10 October 2012.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J
In my opinion the individual sentences were well within the area of discretion, as was the total of the new sentences and the final period to be served. It may be accepted that the appellant faces a further lengthy period in custody and that this is likely to bear heavily upon him. However, for the reasons already given I consider that the sentencing judge was well justified in imposing a sentence which gave most emphasis to the punitive and protective objects of sentencing.Conclusion For these reasons I would dismiss the appeal.APPENDIXDivision 2A—Serious repeat adult offenders and recidivist young offenders20A—Interpretation and application(1) In this Division—home invasion means a criminal trespass committed in a place of residence while a person is lawfully present in the place and the trespasser knows of the person's presence or is reckless about whether anyone is in the place;serious drug offence means—(a)an offence against Part 5 Division 2 or 3 of the Controlled Substances Act 1984 or a substantially similar offence against a corresponding previous enactment; or(b)a conspiracy to commit, or an attempt to commit, such an offence;serious offence means—(a)a serious drug offence; or(ab)an offence against a law of the Commonwealth dealing with the unlawful importation of drugs into Australia; or(b)one of the following offences:(i)an offence 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)an offence against a corresponding previous enactment substantially similar to an offence referred to in any of the preceding subparagraphs;(vii)a conspiracy to commit, or an attempt to commit, an offence referred to in any of the preceding subparagraphs; orNote—A person who acts as an accessary to the commission of an offence described in paragraph (b) is, by virtue of section 267 of the Criminal Law Consolidation Act 1935, guilty of the principal offence and has, therefore, committed a serious offence.(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; or(d)an offence against the law of another State or a Territory that would, if committed in this State, be a serious offence;serious sexual offence means—(a)any of the following serious offences:(i)an offence against section 48, 48A, 49, 50, 56, 58, 59, 60, 63, 63B, 66, 67, 68 or 72 of the Criminal Law Consolidation Act 1935;(ia)an offence against a corresponding previous enactment substantially similar to an offence referred to in subparagraph (i);(ii)an attempt to commit or an assault with intent to commit any of those offences; or(b)an offence against the law of another State or a Territory corresponding to an offence referred to in paragraph (a).(2) For the purposes of this Division, an offence will not be regarded as a serious offence unless the maximum penalty prescribed for the offence is, or includes, imprisonment for at least 5 years.(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.20B—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 (whether as an adult or as a youth)—(i)has committed on at least 3 separate occasions an offence to which this Division applies (whether or not the same offence on each occasion); and(ii)has been convicted of those offences; or(b)the person (whether as an adult or as a youth)—(i)has committed on at least 2 separate occasions a serious sexual offence against a person or persons under the age of 14 years (whether or not the same offence on each occasion); and(ii)has been convicted of those offences.(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.20C—Declaration that youth is recidivist young offender(1) A youth is liable to be declared a recidivist young offender if the following conditions apply:(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 he or she 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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Be that as it may, it is apparent that some of the very offences for which the judge was sentencing the appellant also qualified. In particular, the armed robberies and causing harm with intent offences were available. These, coupled with the 2008 offence committed as an adult, gave rise to the s 20B liability. In those circumstances the judge was obliged, in any event, to consider whether a declaration should be made.Did the judge err in making the declaration The next question is whether, once the discretion was enlivened, the judge should have gone on to make the declaration. In this case, as it happens, the judge chose to first determine what sentence he would impose without reference to s 20B. Then, having referred to defence counsel’s (correct) concession that the discretion to make the declaration was enlivened, the judge considered whether he should make the declaration, concluding that he should do so. Having done so, he determined that it was not necessary to increase the head sentence, but he imposed a non-parole period of four-fifths of the head sentence in obedience to s 20B(4). The appellant argues that the fact that the head sentence was not increased suggests that the declaration should not have been made in the first place. In my opinion the appellant’s argument should be rejected. It confuses the circumstances calling for a declaration (in s 20B(3)) with the consequences of a declaration in s 20B(4). The declaration should be made if the court is of the opinion that the offender’s “history of offending warrants a particularly severe sentence in order to protect the community”: s 20B(3)(b). There is no occasion to read those words as if they contain a further qualification to the effect “and such a sentence cannot be imposed in accordance with usual sentencing principles”. In R v Pottage [2010] SASCFC 75 the Court of Criminal Appeal came to re-sentence an appellant for two offences of unlawful sexual intercourse. It is instructive to note that there the Court, consisting of Duggan, David and Peek JJ, first determined that the declaration should be made and then proceeded to fix sentence. There was no discussion of whether imposition of a sentence under ordinary sentencing principles might obviate the need for the declaration. In R v Brady (2011) 110 SASR 246 Nyland J (with whom Anderson and David JJ agreed) noted that the purposes of making a declaration go beyond providing the ability to increase a sentence above what would be allowable under usual sentencing principles. Nyland J referred (at 252) to the impact the declaration has on the non-parole period, as well as the declaration being a matter relevant to the Parole Board’s later consideration of the prisoner’s release on parole. I would add that it would seem to be an odd result were declarations commonly made where the court was dealing with a single offence and saw a need to impose a disproportionate sentence to protect the public, but were not made when the court was dealing with a number of separate offences and had available to it the ability to impose a much higher total sentence which was seen as adequate to protect the public.