R v Jackamarra
[2013] SASCFC 98
•26 September 2013
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 98Court of Criminal Appeal: Vanstone, Blue and Nicholson JJ
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.
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. In relation to the latter, it is first put that the judge incorrectly utilised sentences of detention imposed in the Youth Court as a basis for the declaration, and second that as a matter of discretion it should not have been made.
For the reasons which follow I have concluded that the earlier sentences giving rise to the imposition of detention were available to enliven the discretion to make the s 20B order. In any event, the offences with which the judge was presently dealing were also eligible for that purpose. In my view it was open to the judge as a matter of discretion to make the order. I consider that notwithstanding the appellant’s youth and unfortunate background, the sentences imposed were within the range available to the judge, bearing in mind that the appellant had a poor record and the offences were serious and were committed as an escapee.
Were the offences attracting a sentence of detention available
It is convenient to deal first with the argument that the judge erred in using the Youth Court offences as a basis for making the declaration. This raises a question of statutory construction. It is important to notice that since the commission of these offences and the sentencing of the appellant the relevant provisions have been amended such that the issue of construction raised in this appeal has been overtaken.
I shall now set out the key parts of the provisions as they appeared at the time. At the end of these reasons appears as an appendix the full text of sections 20A, 20B and 20C as they then were.
Division 2A—Serious repeat adult offenders and recidivist young offenders
20A—Interpretation and application
…
(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
…
The appellant argues that the offences committed as a youth which attracted sentences of detention as opposed to imprisonment are not offences to which Division 2A applies because of the requirement in s 20A(3)(a) of “a sentence of imprisonment” having been imposed. The argument is that this reference means that only offences which were dealt with in an adult court and which attracted a sentence of imprisonment could qualify under s 20A(3).
The offences upon which the judge relied as being offences to which Division 2A applies were first, aggravated serious criminal trespass in a place of residence committed in 2005 for which the appellant was sentenced in 2006 (with other offending) to three months detention; second, an offence of aggravated recklessly causing serious harm committed in 2007 for which the appellant was sentenced to six months detention; and third, aggravated serious criminal trespass in a place of residence committed as an adult in 2008 for which the appellant was sentenced to three years imprisonment with a non-parole period of one year and three months. It was that last sentence which the appellant was serving when he escaped from custody and committed the later offences.
In my opinion there is good reason why the reference to “sentence of imprisonment” in s 20A(3) should be read as comprehending a sentence of detention.
It is noteworthy that under s 20B(1) two groups of persons become liable to be the subject of a declaration. Youths are expressly included in both groups. The first group, under subsection (1)(a), will have been convicted on separate occasions of at least three offences to which the Division applies. The second group will have been convicted of serious sexual offences against young persons on at least two occasions. Unlike an offence “to which this Division applies”, “serious sexual offence” is defined by reference to specific sections creating offences and does not rely on any particular penalty having been imposed. The same dichotomy appears in s 20C which deals exclusively with young offenders. There is no obvious reason why Parliament would make youths who committed two serious sexual offences so much more likely to attract a declaration than youths who committed three serious non-sexual offences. There is no indication in the Second Reading Speech (South Australia, Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Bill, House of Assembly, 13 May 2009, page 2700) that there was a greater need for a measure such as this in relation to sexual offences as opposed to non sexual offences. That leads me to the view that Parliament used the word imprisonment in s 20A(3)(b) to encompass detention.
There is support for that view in s 3A(3) of the Sentencing Act. Section 3A predates the enactment of Division 2A. It has the effect of applying the Sentencing Act to the sentencing of youths. Section 3A(3) provides:
(3)In applying a provision of this Act to a youth who is being or has been dealt with as a youth (ie, not as an adult)—
(a) a reference to imprisonment is to be read as a reference to detention;
In my view the presence of this subsection meant that it was unnecessary for Parliament to stipulate in s 20A(3)(a) that a sentence of detention would also qualify. (I would add that, notwithstanding the presence of s 3A, in my opinion it was necessary in s 20B(1) to stipulate that the offender might be an adult or a youth because of the juxtaposition of s 20C dealing exclusively with youths. But for the addition of those words, courts might have interpreted s 20B as dealing only with adults and s 20C as dealing only with young offenders.)
For these reasons the judge was correct, in my opinion, in taking the view that the prior convictions in the Youth Court set out earlier could qualify as offences leading to a declaration.
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.
In addition I do not consider it is particularly helpful to assert that occasions for making a declaration will be “rare”. Declarations will be as rare or as common as the statutory criterion dictates, albeit that a measure of discretion is reserved to the court by use of the verb should in the phrase “should make such a declaration” in s 20B(3)(b): see Brady at 251. Having said that, I agree that the courts should not make a declaration except on cogent evidence. It is plain that in considering the offender’s history for the purpose of determining whether to make the declaration the court may have regard not only to the offences which enlivened the discretion, but also to the entirety of the offender’s history.
In the present case the appellant’s record of offending was both lengthy and disturbing. It included multiple offences of violence and of dishonesty and an earlier offence of escaping custody, as well as multiple breaches of bonds and bail agreements. Four periods of detention and one term of imprisonment had been served prior to the sentence imposed in the District Court in 2010.
I am unable to say that the judge was in error in making the declaration.
Was the sentence manifestly excessive
I turn to the argument that the sentence was manifestly excessive. I now set out in brief form the facts of each offence for which the appellant was sentenced.
Count 1, escaping from lawful custody, was committed in company with the co-offender, Wayehill. Together they escaped from the Port Augusta Gaol. The maximum penalty for escaping custody is seven years imprisonment.
Counts 2 and 3, aggravated causing harm with intent to cause harm and aggravated robbery, were both committed against the same young woman on Sunday, 10 April 2011. At about six o’clock in the morning she was walking with a male companion on Franklin Street, Adelaide. The two of them had just finished work at a nearby nightclub. The appellant approached them. The victim described his appearance as threatening. As the appellant came closer he started swinging a bottle at the male who avoided it by ducking. The appellant told the victim to give him her handbag and then started swinging the bottle at her. He hit her three or four times with the bottle about her head and shoulders. He told the male “Don’t move or I’ll kill her”. The victim fell to the ground and let go of her handbag. The appellant took hold of it and ran away. The handbag contained a camera, a mobile telephone, an MP3 player, a wallet and a credit card. The male chased the appellant and watched him get into the driver’s seat of a motor vehicle, the registration number of which he noted.
The victim was bleeding heavily and was taken to the emergency department of the Royal Adelaide Hospital where she was found to be suffering lacerations and bruising to her head, face and shoulder.
The maximum penalty for count 2, aggravated causing harm with intent to cause harm, is imprisonment for 13 years. The maximum for armed robbery is life imprisonment. In her victim impact statement the victim spoke of the assault and robbery having affected her in many aspects of her life. She said she had become fearful of walking down to the shops at night and had become paranoid about her safety. The crimes marred an overseas trip which was planned at the time. She endured severe pain as well as suffering scarring from the injuries. In addition she continues to experience fear and anxiety.
Count 4, using a motor vehicle without consent, was committed in the very early hours of 11 April 2011 at Plympton. The victim’s car was parked in her driveway. She was awakened by the noise of it being started up and driven away. The penalty for “a subsequent offence”, which this was, is not less than three months and not more than four years imprisonment.
Count 5, aggravated robbery was committed a little later in the same morning at the United Petrol Station at Adelaide Airport. At that time the appellant and two co-offenders, driving the motor vehicle which was the subject of count 4, drove into the petrol station and parked. The appellant entered the shop and pointed a silver handgun at the console operator. The operator was told to hand over the money, car keys, his telephone and wallet upon pain of being shot. The threat was repeated. The operator gave the appellant about $500 or $600 from the till and also handed over his car keys. All three men then drove off in the operator’s vehicle.
The maximum penalty for armed robbery in company is life imprisonment.
Count 1 of the second information was using a motor vehicle without consent. On 11 April 2011 in the early hours of the morning a vehicle and a mobile telephone were stolen during an armed robbery at Bowden. Witnesses were unable to identify the offenders. About four and a half hours later the stolen vehicle was seen at Port Augusta and pursued at several locations. A road block was set up. The driver (being the appellant’s co-accused Wayehill) and the appellant were ultimately apprehended that afternoon having fled from the vehicle but located with the assistance of police dogs. The maximum penalty for using a motor vehicle without consent is, again, four years imprisonment.
Count 5 on the second information was using a motor vehicle without consent. This charge referred to the removal of the vehicle belonging to the operator of the United Petrol Station, which followed the commission of count 5 on the first information.
It can be seen that these offences, although occurring over a short period, were extremely serious. They were aggravated by the appellant being an escapee at large, by his long history of prior offending and, in several cases, by being in company with others.
I have already referred to the fact that the appellant was a young man at the time of this offending and came from an unfortunate background. Such factors are always relevant in the sentencing process. However, serious and repeated offending over a long period severely limits the degree to which such factors can inform a sentence. As the sentencing judge observed, the appellant’s record was “a bad one and of most concern [was] an accelerating involvement in serious crimes involving violence”. Material before the judge suggested that the appellant demonstrated psychiatric disorders, the prognosis for which was poor. He referred to “an entrenched pattern of drug abuse and offending”. Upon appeal the appellant does not assert that these observations were unwarranted.
The judge formulated the sentence as follows:
District Court information
Count 1
Escaping custody
10 months imprisonment
Count 2
Aggravated causing harm with intent
2 years 7 months imprisonment
Count 3
Aggravated robbery
5 years 1 month imprisonment concurrent with the count 2 sentence
Count 4
Using motor vehicle without consent
10 months imprisonment
Count 5
Aggravated robbery
5 years 1 month imprisonment concurrent with the count 4 sentence
Magistrates Court information
Count 1
Using motor vehicle without consent
10 months
Count 5
Using motor vehicle without consent
Convicted without penalty
The sentences were ordered to be served cumulatively except where otherwise indicated. That gave a total for the new sentences of 11 years and 10 months imprisonment. That was to be served after the completion of the period being served at the time of escaping custody, which was a three year sentence. Having reviewed and extended the non-parole period associated with that sentence, a new non-parole period of 12 years, 3 months and 2 weeks was imposed, to commence from 11 October 2009.
The issue now under consideration was whether the sentences comprising the new total sentence of 11 years and 10 months were manifestly excessive either individually, or as a total, or indeed when considered along with the earlier sentence already partly served.
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.
APPENDIX
Division 2A—Serious repeat adult offenders and recidivist young offenders
20A—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; or
Note—
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.
BLUE J: The defendant, Mr Jackamarra, appeals against a sentence of imprisonment imposed by a Judge of the District Court on 21 August 2012.
The relevant facts, remarks of the sentencing Judge and arguments on appeal are set out in the judgments of Vanstone J and Nicholson J.
The appeal raises three issues:
1.whether the head sentences imposed by the Judge totalling 11 years, 10 months were manifestly excessive;
2.whether the non-parole period of 11 years, 9 months and 18 days fixed by the Judge in respect of the total period to be served (14 years 10 months) was manifestly excessive;
3.whether the Judge erred in making a serious repeat offender declaration and the impact of any error on the sentence.
Head sentences
The Judge adopted the following starting points before applying a discount for the defendant’s guilty pleas:
8.4.2011 Escaping from custody (12 months) 1 year
10.4.2011 Aggravated robbery (6 years)
Aggravated causing harm with intent to cause
harm (3 years concurrent with aggravated robbery) 6 years11.4.2011 Using motor vehicle without consent (Anderson)
(12 months concurrent with aggravated robbery)Aggravated robbery (6 years) 6 years
11.4.2011 Using motor vehicle without consent (Martin)
(12 months) 1 year11.4.2011 Using motor vehicle without consent (Kumar)
(convicted without penalty)TOTAL 14 years
The Judge applied a discount of approximately 15 per cent on account of the guilty pleas. This resulted in head sentences imposed for the four groups shown above of 10 months, 5 years 1 month, 5 years 1 month and 10 months. The result was a total of the sentences calculated cumulatively at 11 years, 10 months.[1]
[1] To commence on 11 October 2012 upon the conclusion of the pre-existing three year sentence imposed on 11 October 2009.
The defendant does not complain about the starting points for the individual sentences. Rather, he complains that the discount of approximately 15 per cent for his guilty pleas was manifestly inadequate and that the total of the sentences of 11 years, 10 months was too high.
Discount for guilty pleas
The defendant was arraigned on 9 January 2012. He pleaded guilty to each count on that occasion. He contends that the discount for his early plea of guilty of 15 per cent was manifestly inadequate.
If I had been sentencing the defendant, I would have allowed a greater discount on account of his guilty plea. However, the issue to be determined is whether the head sentences imposed were manifestly excessive. I therefore turn to the defendant’s second complaint.
Total of sentences
The defendant makes two inter-related contentions. He contends that the sentencing Judge should have imposed sentences reflecting a greater degree of concurrency because all of the offences comprised one spree of criminal behaviour. He contends that, notwithstanding that the individual sentences were justified in isolation, the aggregation of the sentences was not a just and appropriate measure of the total criminality involved. The aggregate was so crushing as to call for a reduction in the aggregate.[2]
[2] R v Rossi (1988) 142 LSJS 451 at 452-453 per King CJ (Jacobs and Cox JJ agreeing); R v E, AD [2005] SASC 332; (2005) 93 SASR 20 at 29-30 per Doyle CJ (Besanko J agreeing).
In relation to the defendant’s first contention, the Judge made the sentences imposed in respect of the escape on 8 April 2011, the aggravated robbery committed on 10 April 2011, the aggravated robbery committed on 11 April 2011 and the second use of motor vehicle without consent committed on 11 April consecutive. Each of these four offences were separate incursions into criminality. Therefore, the defendant’s contention that they should have been made concurrent or partially concurrent because they comprised a single incursion into criminality should be rejected.
The Judge made the sentences imposed for the offending on 10 April 2011 fully concurrent, namely the sentences for aggravated robbery (starting point of 6 years) and aggravated causing harm (starting point of 3 years). These two offences comprised a single course of criminal conduct.[3] Nevertheless, the remarks of King CJ (Cox J agreeing) in Attorney-General v Tichy[4] are apposite:
The learned sentencing Judge ordered that the sentences for the two crimes be served concurrently. I think that the connection between the crimes was sufficient to justify that course, although the imposition of consecutive sentences would also have been consonant with principle. The essential thing to be borne in mind is that if the sentences are made consecutive there must be no overlapping of the factors brought into account in determining the length of each sentence; similarly, if the sentences are made concurrent the gravity of the total criminal conduct must be reflected in the leading sentence.
As the Judge made the sentences concurrent, he was required in fixing the sentence for the armed robbery to take into account as an aggravating factor the serious criminal conduct involved in shooting at a police officer with intent to do grievous bodily harm in the course of making his escape. It seems to me that when that circumstance is given proper weight a sentence of five years for the armed robbery is manifestly inadequate. The sentence must therefore be set aside.[5]
[3] See Attorney-General v Tichy (1982) 30 SASR 84 at 92-93 per Wells J (Cox J agreeing).
[4] (1982) 30 SASR 85.
[5] Ibid at 85 per King CJ (Cox J agreeing).
When a person comes to be sentenced for multiple offending, even when it is for separate incursions into criminal conduct, there are other reasons why partial (or ultimately full concurrency) may be appropriate. Those reasons are articulated by Kourakis J (as he then was) in R v Copeland (No 2)[6] as follows:
[6] [2010] SASCFC 61; (2010) 108 SASR 398.
First, there is the consideration, which applies in all cases when sentences of imprisonment are made cumulative, that the deprivations of a sentence of a particular length will be suffered all the more deeply if it is served after the completion of one or more earlier terms. In Jarvis v The Queen Ipp J explained this consideration in the following way:
What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of seven years may be appropriate for one set of crimes and a sentence of eight years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved simply, because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison.
(Emphasis added)
Secondly, in my view, the length of imprisonment necessary to achieve specific and general deterrence in the case of sentences imposed for a single course of conduct will generally be less than the result of the multiplication, by the number of offences committed, of the sentence which would have been imposed for a single offence.
Thirdly, where the offences are committed within a very short space of time it may be that the limited time and capacity which the offender had to reflect on whether or not to commit the subsequent offences mitigates his or her moral culpability.
There can be no hard and fast rules, but considerations like the ones to which I have referred will inform the characterisation of offences as one or more courses of conduct and the extent, if any, to which the sentences imposed for them should be concurrent. I hasten to add that too much emphasis should not be placed on the characterisation of multiple offences as a single course, or a number of courses, of conduct. Even where the connections are insufficient to characterise the offences as a single course of conduct it may be that there is sufficient reason to make the sentences at least partially concurrent.
The considerations which govern the question of concurrency, together with a consideration of the offender’s prospects for rehabilitation, are, I think, the same matters which inform the reductions which are sometimes made for totality...[7]
(Citations omitted)
[7] Ibid at [103]-[107] per Kourakis J.
The overall result of a total of the head sentences of 11 years 10 months is at the top of the range, but it has not been demonstrated that it is manifestly excessive.
While the Judge ultimately made a serious repeat offender declaration under section 20B of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), this had no impact upon the head sentences imposed by him.
Non-parole period
The fixing of the non-parole period for the offences committed in April 2011 was complicated by the fact that, as at the date of sentencing on 21 August 2012, the defendant was near the end of serving the three year sentence which had commenced on 11 October 2009 and which he had been serving when he escaped from lawful custody in April 2011. It was further complicated by the fact that the defendant’s escape was after the expiration of the non-parole period fixed in respect of that sentence.[8] Ordinarily, section 32 of the Sentencing Act requires a court, when sentencing for new offences committed while a defendant is serving a previous sentence of imprisonment, to fix a single non-parole period to encompass the total term of imprisonment imposed for the previous and new offending.
[8] Non-parole period expired on 11 January 2011.
The Judge indicated that, leaving aside section 20B of the Sentencing Act, he would have fixed a non-parole period of 10 years in respect of the combined period of imprisonment of 14 years, 10 months. This represents approximately two thirds of the total period of imprisonment. Such a non-parole period cannot be characterised as manifestly excessive. I therefore turn to the defendant’s contention that the Judge erred in making a serious repeat offender declaration.
Serious repeat offender declaration
After having indicated the head sentences and non-parole period which he would have fixed in the absence of section 20B of the Sentencing Act, the Judge then considered whether he should make a repeat serious offender declaration. His Honour exercised his discretion in favour of making that declaration. As a result, a non-parole period of 11 years, 9 months and 18 days was ultimately fixed.
Satisfaction of pre-conditions
I agree with Vanstone J and Nicholson J that offences committed by the defendant on 24 November 2008 (aggravated attempted robbery), 10 April 2011 (aggravated robbery) and 11 April 2011 (aggravated robbery) were offences to which Division 2A applied and were committed on at least three separate occasions. This enlivened the discretion of the Judge to make a serious repeat offender declaration. On appeal, the defendant did not contend otherwise.
It is therefore not necessary to decide whether the word “imprisonment” in section 20A(3)(a) of the Sentencing Act encompasses detention under the meaning of the Young Offenders Act 1993 (SA) and accordingly whether the defendant was liable to be declared a serious repeat offender by reference to the offences for which he was sentenced to detention on 6 September 2006 and 7 May 2008 together with the sentence of imprisonment imposed on 3 March 2010.
Exercise of discretion
Under section 20B(4) of the Sentencing Act[9] a serious repeat offender declaration had two consequences for the sentencing court and any court subsequently called upon during the life of the defendant to sentence the defendant for a serious offence. The consequences were that the sentencing court and any future sentencing court would not be bound to ensure that any sentence imposed is proportional to the offence, and any non-parole period fixed must be at least 80 per cent the length of the sentence.
[9] As it formerly stood.
The consequences of a serious repeat offender declaration should inform the exercise of the discretion.[10] This is reinforced by section 20B(3)(b) which provides that:
[T]he court … 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.
[10] See the approaches in R v Williams [2006] SASC 377; (2006) 96 SASR 226 at [68] per Sulan J; R v Pottage [2010] SASCFC 75 at [24] per David J (Duggan and Peek JJ agreeing); R v Brady [2011] SASCFC 79; (2011) 110 SASR 246 at [20] per Nyland J (Anderson and David JJ agreeing).
The court has a discretion to make a declaration without forming the opinion that a particularly severe sentence is warranted to protect the community.[11] Conversely, notwithstanding that the court forms such an opinion, the court retains an overall discretion to decline to make a declaration. Nevertheless, section 20B(3)(b) suggests that whether there is a need for a particularly severe sentence in order to protect the community is an important factor impacting the exercise of the discretion.[12]
[11] R v Brady (2011) 110 SASR 246 at [20] per Nyland J (Anderson and David JJ agreeing).
[12] See R v Williams (2006) 96 SASR 226 at [68] per Sulan J; R v Pottage [2010] SASCFC 75 at [24] per David J (Duggan and Peek JJ agreeing).
The Judge formed the view that the head sentences totalling 11 years, 10 months which he was minded to impose were appropriate to protect the community and he made no adjustment to those head sentences after he determined to make the serious repeat offender declaration. However, he increased the non-parole period to 11 years, 9 months and 18 days (backdated to commence on 11 October 2009).
The Judge did not say in his sentencing remarks that he considered that a non-parole period of 11 years, 9 months and 18 days, as opposed to a non-parole period of 10 years, was necessary in order to protect the community or give any reasons for taking such a view. There is no reason why a non-parole period in excess of 10 years was necessary to protect the community in the circumstances Once a serious repeat offender declaration is made, it continues to have the consequences identified at [56] above for the rest of a defendant’s life. It is a particularly significant step to take in respect of a defendant who was only 20 years old at the time of the offending in question. I agree with Nicholson J, for the reasons which his Honour gives, that the sentencing Judge’s discretion miscarried. For the same reasons, I would exercise the discretion against making a declaration.
Re-sentencing
Given that I consider that the sentencing Judge’s discretion in making a serious repeat offender declaration and the sentencing Judge fixed a different substantive sentence (the non-parole period) as a result of the declaration, it is necessary to exercise the sentencing discretion afresh in respect of the April 2011 offending.
I would exercise my sentencing discretion in the same manner as Nicholson J. I would impose a total head sentence pursuant to s 18A of the Sentencing Act of 9 years, 6 months and fix a non‑parole period of 6 years, 4 months in respect of the April 2011 offending. I would backdate both the head sentence and the non-parole period to commence on 10 October 2012.
Having determined the sentence which I would have imposed in the absence of a serious repeat offender declaration under section 20B, I revisit the question whether such a declaration should be made in light of the sentence which I would otherwise impose. I do not consider that it is necessary to impose a more severe sentence than the one I would otherwise impose in order to protect the community. Otherwise, for the same reasons given above, I would exercise my own discretion to not make a serious repeat offender declaration under section 20B of the Sentencing Act.
Conclusion
I would allow the appeal. I would set aside the serious repeat offender declaration. I would impose a total head sentence of 9 years, 6 months and fix a non-parole period of 6 years, 4 months under section 18A of the Sentencing Act in respect of the April 2011 offending, both commencing on 10 October 2012.
NICHOLSON J.
Introduction
This is an appeal against a sentence of imprisonment imposed by a judge of the District Court on 21 August 2012[13] in relation to offences committed in April 2011 following the appellant’s escape from custody. The final sentence arrived at is a term of imprisonment for 14 years and 10 months with a non-parole period of 11 years, 9 months and 18 days; both backdated to commence 11 October 2009. It was arrived at, ultimately, after the sentencing Judge had declared the appellant, for sentencing purposes, to be a serious repeat offender pursuant to s 20B of the Criminal Law (Sentencing) Act 1988 (CLSA).
[13] This was the date of the original sentence. However, an error in the calculation of the non-parole period was subsequently identified, further submissions made and a revised non-parol period was fixed on 30 October 2012, Appeal Book 194-214.
The appellant, when first arraigned in the District Court on 9 January 2012, pleaded guilty to the following offences.
(i)On 8 April 2011, escape lawful custody, contrary to s 254(1) of the Criminal Law Consolidation Act 1935 (CLCA) the maximum penalty for which is a term of imprisonment for seven years;
(ii)On 10 April 2011, aggravated causing harm with intent to cause harm, contrary to s 24(1) of the CLCA, the maximum penalty for which is a term of imprisonment for 13 years;
(iii)On 10 and 11 April 2011, two counts of aggravated robbery, contrary to s 137(1) of the CLCA, the maximum penalty for each of which is a term of imprisonment for life; and
(iv)On 11 April 2011, three counts of using a motor vehicle without consent, contrary to s 86A(1) of the CLCA, the maximum penalty for each of which (all being subsequent offences) is a term of imprisonment for no less than three months but no more than four years.
As at 8 April 2011, the date of the escape, the appellant was serving a three year sentence of imprisonment at Port Augusta prison, imposed by her Honour Judge Davey (commencing 11 October 2009)[14] with a non-parole period of one year and three months. As it happened, the appellant had not been granted parole as at the time of his escape even though by then he had served approximately 18 months of this term of imprisonment. The appellant’s application for release on parole had been approved but subject to him first completing specified rehabilitation programs.[15] Nevertheless, after being interviewed on 20 January 2011 and told that he would be released, subject to completion of the programs, the appellant escaped on 8 April 2011.
[14] See the sentencing remarks of Judge Davey at AB 43 relied upon by the sentencing Judge for this matter in his sentencing remarks at AB 183.
[15] The sierra program and the violence prevention program.
The appellant was re-captured on 11 April 2011 and returned to custody. He continued to serve the sentence imposed by Judge Davey. As at the date he was sentenced for the offences presently under consideration, he had served approximately two years and 10 months of that three year sentence. According to the Parole Board correspondence available to the Court, the appellant became eligible to re-apply for parole as from 11 April 2012.[16] However, as at the time of sentencing submissions on 31 May 2012 and presumably also as at the time of initial sentencing on 21 August 2012 the appellant had made no application for parole.[17] The Judge Davey sentence expired on or about 14 October 2012. As such, it would seem that the appellant has spent no time in custody solely on remand for the present offences.
[16] Because of the nature of the appellant’s offences he had not been entitled pursuant to s66 of the Correctional Services Act 1982, to automatic parole at the expiration of the one year and three months non-parole period originally set by Judge Davey.
[17] AB 181.
The appellant was at large for four days. However, all the offences were committed within an approximately 24 hour period.[18] The appellant was 22 at the time of sentencing and a few months short of 21 at the time of the offending.
[18] After escaping the first (next) offence was committed at about 6am on 10 April and the last offence was committed at about 5am on 11 April.
The structure of the sentence
The sentencing Judge structured the overall sentence in the following way. His Honour noted that the appellant was still subject to and serving the three year term of imprisonment which commenced 11 October 2009 and which his Honour characterised as “most merciful”. His Honour applied s 18A of the CLSA but in so doing indicated the individual sentences that he would have imposed so as to make up the one penalty for all offences but without at that stage considering whether or not to make the s 20B declaration.
After allowing a reduction of “roughly” 15 per cent on account of the guilty pleas, the following terms of imprisonment[19] were indicated:
·escape custody, ten months;
·aggravated cause harm with intent and aggravated robbery (committed 10 April 2011) two years and seven months and five years and one month respectively but to be served concurrently;
·use of motor vehicle without consent and aggravated robbery (committed 11 April 2011) ten months and five years and one month respectively but to be served concurrently;
·second use motor vehicle without consent (committed 11 April 2011) ten months but to be served cumulatively on the term imposed for the other 11 April offending;
·third use motor vehicle without consent (committed 11 April 2011) a conviction without penalty.
[19] To be served cumulatively on Judge Davey’s sentence of three years.
In the result, two terms of five years and one month and two terms of 10 months were accumulated to indicate a total head sentence to be imposed under s 18A of 11 years and 10 months. This, together with the sentence of three years then still being served, would give rise to a total head sentence of 14 years and 10 months backdated to 11 October 2009. His Honour also indicated at that time a non-parole period of 10 years.
It is to be noted that, had no discount for each guilty plea been allowed, the starting point for each of the aggravated robberies was approximately six years and the starting point for each of the escape custody and use motor vehicle without consent offences was approximately 12 months (resulting in a total starting point of 14 years for the s 18A penalty).
According to s 20B of the CLSA (as it stood at the time of the offences[20]) provided certain pre-conditions are met, as set out in s 20B, a sentencing court is obliged to consider whether to make a declaration that a person is a serious repeat offender. If the court forms the opinion that the person’s history of offending warrants a particularly severe sentence in order to protect the community, it “should make the declaration”. The making of such a declaration is discretionary.[21] Once such a declaration is made the court is not bound to ensure that the sentence it imposes is proportional to the offence (and has a further discretion in this respect). However, the court must impose a minimum non-parole period of at least four-fifths of the head sentence. It has no discretion in this respect.[22]
[20] Section 20B was amended and a new s20BA inserted by Act No 33 of 2012, operative 4 March 2013.
[21] R v Williams (2006) 96 SASR 226 at [71] (Sulan J).
[22] R v Saunders [2011] SASCFC 37.
At the time of indicating the notional sentences and the notional non-parole period the Judge noted that he was doing so “without consideration to a s 20B declaration”.[23] After arriving at the total of 14 years and 10 months, his Honour said “I am, however, as I have indicated, required to consider the provisions of s 20B of the Sentencing Act”.
[23] Sentencing remarks AB 210.
The Judge went on to consider whether or not such a declaration ought to be made in the circumstances. He asked himself the question (as required by s 20B) whether the appellant’s history of offending “warranted a particularly severe sentence in order to protect the community”.[24]
[24] Sentencing remarks AB 213.
His Honour made a declaration that the appellant was “a serious repeat offender”. However, the Judge did not then go on to review the indicative head sentence of 11 years and ten months. After making the declaration (“with great reluctance”[25]) his Honour said this.
Accordingly, I have determined that if I am simply to impose a four-fifths non-parole period on the sentences I have already calculated, the sentence of the Court would be that you would serve a sentence of 14 years 10 months from 11 October 2009 and that would be accompanied by a non-parole period of four-fifths which I calculate as nine years, five months[26] but, to be added to that, is a further non-parole period of two years, 10 months as you have already served that in your existing sentence, thus there would be a total non-parole period of 12 years, three months, two weeks.
[25] For the reasons given at AB 213.
[26] His Honour calculated four fifths of the notional head sentence for the offending in question (11 years and ten months) to arrive at the nine years and five months figure. Strictly this four-fifths calculation leads to nine years, five months and two weeks. However, this additional two weeks seems to have been picked up in the total non-parole period calculation of 12 years, three months and two weeks.
After delivering the sentence it came to his Honour’s attention that the four-fifths calculation had been, incorrectly, based on the whole of the prison term imposed. According to s 20B (as it then stood) this calculation of a minimum non-parole period of four-fifths of the head sentence was to attach only to the “serious offences”, as defined in s 20A(1), for which the appellant was to be sentenced.[27] His Honour therefore turned to the two cumulative sentences of five years and one month for each of the aggravated robbery offences and calculated the four-fifths minimum to be eight years, one month and 18 days. His Honour then added in the two years and ten months that, as at the original sentencing date, had been served with respect to Judge Davey’s sentence (as he had done before) and a further ten months with reference to the “two cumulative illegal use charges” (for each of which he had notionally indicated a head sentence of ten months).[28] This gave rise to a total (and finally calculated) non-parole period of 11 years, nine months and 18 days, backdated to 11 October 2009. As it happens, this amounts to 79.5 per cent (virtually four-fifths) of the total head sentence of 14 years and 10 months.
[27] R v Saunders [2011] SASCFC 37 at [123] (White J), R v Brady [2011] SASCFC 79 at [25]-[26] (Nyland J with whom Anderson and David JJ agreed).
[28] The reference by his Honour to two “cumulative illegal use charges” (AB 214) appears to have been a slip. As a result of his Honour’s indicative sentences, only one of the two illegal use sentences of ten months was truly cumulative. However, in this context of calculating the non-parole period, his Honour omitted to mention the indicative ten months for the escape custody offence which also was truly cumulative. In the result, his Honour’s logic and mathematics remain unaffected by this slip.
The grounds of appeal
The appellant raises two grounds of appeal. The first is that the head sentence and the non-parole period are manifestly excessive and the second is that the Judge erred in making the s 20B declaration that the appellant was a serious repeat offender. As far as the second ground of appeal is concerned, the appellant contends that the criteria provided for in the CLSA, as it then stood, for the making of such a declaration had not been satisfied and/or in the alternative, that the Judge erred in the exercise of his discretion in making the declaration. Before dealing with the appellant’s argument in more detail it would be helpful to expand upon the summary earlier given of the Judge’s approach to sentencing.
Further aspects of the Judge’s reasoning
His Honour described the offending in the following terms.[29]
[29] AB 208-209.
On 8 April 2011 you and your co-accused… were prisoners at Port Augusta prison.
. . . .
You took advantage of the low security at the prison, however, and escaped… .
In the early hours of the morning of 10 April 2011, a woman was walking home on Franklin Street when you approached her, threatened her and struck her about the head and shoulders causing her to fall to the ground. You grabbed her handbag and fled the scene leaving the complainant with bruising and lacerations.
The complainant has provided the court with a victim impact statement from which it is clear that she suffered immensely from your cowardly attack. This has led to the charge of Aggravated Cause Harm with Intent to Cause Harm as you used a bottle on the female in this attack and Aggravated Robbery for the theft of the various items that belonged to her.
On 11 April 2011, you illegally used the motor vehicle of Tamsin Anderson that you had stolen at about 2.15 a.m. from the driveway of her home in South Plympton. On the same day, in the early hours of the morning, you used it to rob the United Petrol Station on Airport Road. You entered with what looked like a firearm which you pointed at the complainant. The complainant, then faced with what appeared to be a gun surrendered to you items of property and you fled with two other males in the complaint’s [sic] motor vehicle.
On 11 April 2010 [sic: 2011], a white Statesman and a mobile phone belonging to Daniel Martin was stolen during an armed robbery at Bowden. Perhaps you are lucky that neither the victim nor the witness were able to identify the offenders, I do not know. In any event, you are only to be dealt with by virtue of the fact you were using this vehicle without consent to travel to Port Lincoln and, on several occasions, your co-offender avoided police pursuit by travelling in excess of 150 km/h.
A road block was set up at the intersection on the Lincoln Highway near the Port Neill grain silos and the vehicle you were in accelerated past the police and travelled across the Lincoln Highway before stopping in a ditch. You and… decamped from the vehicle and ran away and that afternoon you were located between two of the silos and arrested.
His Honour then summarised the personal circumstances of the appellant. They engender significant sympathy. The appellant’s childhood and adolescent experiences tell a very sad story, one which is familiar to the courts of this State, although in this case, a somewhat extreme version of that story. I will mention only the main points. The appellant is an aboriginal man, now aged 22 and born in Port Lincoln. The appellant’s father died when he was eight and by the age of 11 his behaviour had deteriorated to the extent that his mother could no longer cope. As a result, the appellant was placed in several foster homes from where he regularly ran away. From early adolescence the appellant engaged in school truancy, drug use and incessant criminal behaviours. The appellant has no education and has never been employed nor undertaken any work experience. In the past the appellant engaged heavily in solvent sniffing and alcohol abuse and appears now to suffer from an opiate dependency.
The psychiatric evidence before the court identifies instances of the appellant trying to self-harm and to hang himself when at the Cavan Youth Detention Centre. In 2009 the appellant was diagnosed as suffering from an adjustment disorder with anxious and depressed mood. The appellant uses drugs to assist with his periods of depression. He has been described by a reporting psychiatrist as having a history consistent with poly-substance dependence, addiction and anti-social personality disorder with borderline personality traits and as having a poor prognosis with a disposition to re-offending.
The Judge noted the appellant’s drug dependency as the primary factor to be addressed in order to reduce the risk of re-offending and recognised the need to impose a sentence that would serve to protect the community while at the same time recognising the appellant’s deprived background and giving him some prospects for rehabilitation. His Honour then proceeded to structure the head sentence in the manner I have already described before turning to the making of the s 20B declaration.
The s 20B declaration
Section 20B of the CLSA, as it stood at the time of sentencing, provided as follows.
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.
The prosecution relied upon s 20B(1)(a) as enlivening the discretion to have the appellant declared a serious repeat offender. It asserted that the appellant had committed, on at least three separate occasions, an offence to which Division 2A of the CLSA applied.[30] By sub-section 20A(3) (both then and now) an offence is one to which Division 2A applies if the offence is a “serious offence” and one where:
(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.
A “serious offence” (as referred to in s 20A(3)) is defined in s 20A(1) to include a large number of identified offences under the CLSA.
[30] Division 2A is headed ‘Serious repeat adult offender and recidivist young offenders’. At the time of sentencing it included s 20A dealing with interpretation and application, s 20B dealing with declarations that a person is a serious repeat offender and s 20C dealing with declarations that a youth is a recidivist young offender. At the present time Division 2A (as subsequently amended) includes an amended s 20A, an amended s 20B, s 20C and a new s 20BA.
The Judge found that the preconditions necessary to enliven the exercise of the discretion had been established. His Honour relied upon the appellant having committed three particular offences – two as a youth and dealt with in the Youth Court and one as an adult and dealt with in the District Court. They were: an offence of aggravated serious criminal trespass (in an occupied residence) for which the appellant was sentenced (along with other offending) in the Youth Court to three months detention on 6 September 2006, an offence of aggravated recklessly cause serious harm for which the appellant was sentenced in the Youth Court to six months detention on 8 June 2007, and the offence of aggravated serious criminal trespass (in an occupied residence) for which (together with other offending) the appellant was sentenced in the District Court to imprisonment for three years on 3 March 2010.
The appellant has conceded (correctly) that each of these offences is a “serious offence” within the s 20A(1) definition. However, the appellant submits that the two offences dealt with in the Youth Court which resulted in periods of detention do not satisfy the requirement set out in s 20A(3) that a sentence of imprisonment had been imposed. In short, the appellant argues that, before a s 20B declaration that the appellant is a serious repeat offender can be made, the three offences (committed on three separate occasions) relied upon, must each have resulted in a term of imprisonment in contradistinction to a term of detention. In practical terms, where offences committed by a youth are relied upon, s 20B can only be invoked[31] if in each case the youth has been sentenced as an adult to a term of imprisonment as opposed to having been sentenced as a youth to a term of detention.
[31] As opposed to s 20C – the power to declare a youth to be a recidivist young offender.
The respondent submits that to construe the notion of “imprisonment” for the purposes of Division 2A so narrowly as to exclude the notion of detention, in the context of s 20B, would serve to undermine the intention of the legislature when (in 2009) it introduced s 20C to provide for youths who meet the relevant criteria to be declared recidivist young offenders whilst at the same time amending s 20B(1) so as to expressly provide that it applied to a person who committed offences “whether as an adult or a youth”. According to the respondent, the intention of the legislature was and s 20B should be construed so as to lead to the position, that offences committed as a youth were now to be included in the criteria to be met before a declaration under s 20B might be made.
The issue presents a complex question of statutory construction. To this point, I have not done justice to all of the arguments which might be seen as lending support to each position. The question does not need to be resolved in order to decide this appeal. Its resolution can be left to when and if it arises in the future. If that occurs, it would be necessary, according to the circumstances, to decide whether the issue needed to be determined in accordance with the previous legislative regime for Division 2A or the present legislative regime following the amendments operative in March 2013.
The question of statutory construction does not need to be resolved for two reasons. Even if the Judge was in error in relying upon the three identified previous offences as enlivening the discretion, in my view the discretion was enlivened in any event. Furthermore, and in any event, in my view the discretion miscarried and the declaration should not have been made.
Has the discretion been enlivened in any event?
Section 20B(1) requires a finding that the person in question has committed on at least three separate occasions an offence to which Division 2A applies and has been convicted of those offences. Sub-section (3) provides that if a court convicts a person of a “serious offence” (as defined) 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 must then consider whether to make the declaration. Sub-section (4) (as it then stood) provides that 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) certain consequences with respect to the sentencing of the offender for that serious offence will follow.
It follows (see the emphasised words above) that the “serious offence” for which the offender is to be sentenced can also operate as a qualifying or pre-conditional offence for the making of the declaration.
If one were to focus on the aggravated serious criminal trespass for which the appellant was sentenced, in the District Court on 3 March 2010, to imprisonment for three years together with the two offences of aggravated robbery that were before the sentencing Judge, one committed on 10 April 2011 and the other on 11 April 2011, his Honour had before him offences to which Division 2A applied committed on three separate occasions. Each of the latter two offences is to be characterised as a “serious offence” as defined in s 20A(1). Each is also a serious offence to which Division 2A applies because (per s 20A(3)) once the appellant had been convicted of the offence and a penalty was yet to be imposed by the sentencing Judge it was an offence for which “a sentence of imprisonment (other than a suspended sentence) is, in the circumstances, the appropriate penalty”.
I am satisfied that the Judge’s discretion to consider whether or not to declare the appellant a serious repeat offender pursuant to s 20B was, in any event, enlivened.
The Judge’s exercise of the discretion
I turn now to consider the basis upon which the Judge exercised the discretion to declare the appellant a serious repeat offender.[32] His Honour first recited an extensive number of previous offences that in his Honour’s view were relevant to the question of the exercise of the discretion. The full extent of the respondent’s previous offending in this respect cannot be appreciated in the absence of setting out that material again. I set out below all of the offences relied on by the Judge but, in each case, I have added (in brackets) the age of the appellant at the date of sentence,[33] the penalty imposed and any other material circumstances that might be discerned from the offender history tendered before his Honour.[34]
[32] At AB 211-213.
[33] For a number of the entries, particularly the interstate ones, no date of offence or apprehension is recorded. In each case, it can be assumed that the appellant was younger (probably by months) than his age at the recorded date of sentence.
[34] At AB 30-34.
(i)attempted robbery [age at date of sentence (25/1/01) approximately 10, Perth Children’s Court, six months youth community based order];
(ii)attempted robbery [age at date of sentence (3/12/01) approximately 11, Armidale (WA) Children’s Court, six months youth community based order];
(iii)assault occasioning actual bodily harm [age at date of sentence (20/2/02) approximately 11, Perth Children’s Court, six months youth community based order];
(iv)assault a police officer [age at date of sentence (20/5/02) approximately 11, Perth Children’s Court, two months intensive youth supervision order];
(v)two counts of assault a police officer [age at date of sentence (25/6/02) almost 12, Perth Children’s Court, six months youth community based order];
(vi)common assault [age at date of sentence (13/9/02) 12, Perth Children’s Court convicted but with no punishment];
(vii)assault occasioning actual bodily harm [age at date of sentence (22/9/03) 12, Perth Children’s Court, three months youth community based order];
(viii)endangering life [age at date of sentence (10/1/05) 14, Adelaide Children’s Court, sentenced in conjunction with other lesser offending to a bond to be of good behaviour for 12 months with supervision and a drivers licence disqualification (post-dated apparently bearing in mind the age of the appellant at the time)];
(ix)carrying an offensive weapon [age at date of sentence (6/12/05) 15, Whyalla Children’s Court, sentenced in conjunction with other offending to no penalty and without conviction];
(x)escaping from lawful custody [age at date of sentence (30/3/06) 15, Perth Children’s Court, four months intensive supervision order];
(xi)two counts of aggravated serious criminal trespass (one residence occupied the other non-residential) and three offences of escape from custody [age at date of sentence (6/9/06) 16, Adelaide Children’s Court, sentenced, together with other offending, to a total of seven months detention];
(xii)one count of hinder police and two counts of resist arrest[35] [age at date of sentence (22/1/08) 17, Adelaide Children’s Court, two penalties each of 20 hours community service within six months];
(xiii)aggravated serious criminal trespass (non-residential) [age at date of sentence (22/1/08) 17, Adelaide Children’s Court, sentenced together with other related offending to six months detention suspended on a bond to be of good behaviour for six months with supervision];
(xiv)carrying offensive weapon [age at date of sentence (22/1/08) 17, Adelaide Children’s Court, sentenced together with other related offending to three months imprisonment suspended on a bond to be of good behaviour for six months with supervision];
(xv)hinder police [age at date of sentence (22/1/08) 17, Adelaide Children’s Court, sentenced together with other related offending by way of a conviction recorded but dismissed without penalty];
(xvi)two counts of aggravated serious criminal trespass (non-residential) [age at date of sentence (22/1/08) 17, Adelaide Children’s Court, sentenced together with other related offending to six months detention suspended on a bond to be of good behaviour with supervision and a drivers licence disqualification];
(xvii)aggravated recklessly causing serious harm [age at date sentence (7/5/08) 17 years and 10 months, Adelaide Children’s Court, six months detention];
(xviii)two counts aggravated serious criminal trespass (non-residential) [age at sentence (7/5/08) 17 and 10 months. However, his Honour appears to have relied on the entry in the offender history record for 7/5/08 at the top of page 5 of that document.[36] These were not new offences but rather proceedings taken for breach of bond with these as the underlying offences. The breach of bond was dealt with in the Adelaide Children’s Court and the original suspended sentence of six months detention was revoked and ordered to be served];
(xix)common assault [age at date of sentence (26/6/08) 17 years and 11 months, Adelaide Children’s Court, sentenced together with other possibly more serious, in the circumstances, offending, to eight weeks detention with a drivers licence disqualification]; and
(xx)aggravated serious criminal trespass (residence occupied), aggravated attempt to commit theft using force and aggravated intentionally cause harm [age at date of sentence (3/3/10) 19 and age at date of commission (11/08) 18, District Court of South Australia, three years imprisonment with a non-parole period of one year and three months to commence from 11/10/09].
[35] The offender history record at AB 33 records these offences as “resist police”.
[36] AB 34.
The most serious of the appellant’s offending, or at least that which has been most seriously dealt with to this point, is that in the last entry above. Thereafter and until committing the offences presently before the Court there is no record of further offending. This, of course, is not surprising given that the appellant has been in custody since 11 October 2009 but for the four days in April when he was at large. Apart from the three year term of imprisonment as an adult, just referred to, it would seem that the only previous periods of incarceration have been seven months detention at age 16 ((xi)) two lots of six months detention at age 17 years and 10 months ((xvii) and (xviii)) and eight weeks detention at age 17 years and 11 months ((xix)). However, the appellant has had the benefit of other suspended periods of detention and innumerable community based orders.
I apprehend that the above list of offences, being those the Judge had particular regard to for the purposes of the s 20B declaration exercise, were chosen on the basis that, on the limited information available to his Honour, they appeared to be the most serious and to include such previous offences which involved or may have involved an element of violence. Nevertheless, it cannot be ignored that the offender history record also discloses a plenitude of other offending involving dishonesty, street and public disorder offences, refusal to obey police instructions, motor vehicle offences, failures to comply with bail agreements, bonds and other court orders. I will return to the appellant’s offender history in order to consider the role it might play with respect to the question of a s 20B declaration later in these reasons.
After identifying the offences of particular concern, the Judge observed that the appellant’s history of offending, “especially violent offending, indicates that [he is] a risk to the community”.[37] His Honour further observed that on escape from custody he posed a significant risk to the community until apprehended in that he assaulted victims and thereby indicated that he was putting the public at risk to avoid apprehension. His Honour then went on to consider the personal circumstances of the appellant. I have already dealt with these, in brief. The factors that the Judge took into account in ultimately reaching a finding that the appellant’s history of offending warranted a particularly severe sentence in order to protect the community and in proceeding to make the declaration, can be summarised as follows.
(i) the history of offending, especially violent offending, indicating that the appellant is a risk to the community;
(ii) the fact (as indicated by the pre-sentence report writer) that the appellant has very little insight into his offending and the effect it has upon victims and the community;
(iii) an apparent escalating pattern of violent offending;
(iv) the fact that the offending behaviour is directly related to the appellant’s substance abuse which causes him to behave in a reckless manner with little thought for the consequences; and
(v) the facts that the appellant’s thinking is largely egocentric and that according to the expert evidence his prognosis is poor in that he has developed an entrenched pattern of drug abuse and offending.
[37] At AB 212.
His Honour referred to the remarks of Gray J in R v Curtis (No 2)[38] including the reference there to the factors to be considered, as set out by Sulan J, in R v Williams.[39] His Honour “with great reluctance” came to the required view and made the declaration.
[38] (2009) 105 SASR 411 at [41]-[42].
[39] (2006) 96 SASR 226 at [71].
Review of the Judge’s exercise of discretion
In R v Williams[40] Sulan J expressed a view as to the circumstances in which the discretion under s 20B might be exercised.[41]
[40] (2006) 96 SASR 226.
[41] His Honour was considering the terms of s 20B as originally enacted in 2003 which were different in some respects from those before the sentencing Judge following the amendments in 2009 and different again from those following the amendments operative in 2013. However, his Honour’s observations were in general terms and remain applicable and of assistance notwithstanding the changes to the legislation. His Honour’s observations were referred to with apparent approval by Gray J in R v Curtis (No 2) (2009) 105 SASR 411 at [40]-[43].
In considering whether to make the declaration, the court is required to form an opinion as to whether the person’s history of offending warrants a particularly severe sentence in order to protect the community. The effect of the section is to provide for the imposition of a lengthier term of imprisonment and lengthier non-parole period than would normally apply to the offence with which the court is dealing.
The section departs from the basic principle that a sentence of imprisonment, imposed by a court, should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime, considered in the light of its objective circumstances… . I consider that it is only appropriate to make a declaration in the instance that the court is satisfied that there is a clear need to protect the community. Only in rare cases will the court be justified in departing from the recognised principle of proportionality.
. . . .
The making of a declaration pursuant to s20B is discretionary. In my view, a declaration should only be made when the court is satisfied that the person is such an habitual offender that a lengthier term of imprisonment and non-parole period is justified for the protection of the community. Factors to be considered include the number of prior offences, the seriousness of the offences, the age of defendant and his or her prospects of rehabilitation, the time which has elapsed between the repeat offences, the likelihood of further re-offending and the nature of offending, having regard to the protection of the community.[42]
In R v P, A; P, A v Police[43] White J said this.
Had there been some utility to it, the Judge’s declaration under s 20C would have been understandable. I have already referred to the appellant’s extensive criminal history and, as the District Court Judge concluded, he is a person from whom the community requires protection. Nevertheless, I consider that a declaration under s 20B or s 20C of the CLSA should only be made with some caution. As with an order for indefinite detention under s 23 of the CLSA, it involves a departure from a fundamental principle of sentencing, namely, proportionality. The purpose of the declaration is principally protective and, in my opinion, the making of declarations should be confined to those cases in which that is really required. As with orders for indefinite detention, a Judge should make the order only upon cogent evidence and with a clear appreciation of the exceptional nature of the course which is being taken.[44]
[42] At [67], [68] and [71].
[43] [2013] SASCFC 3 at [82], footnote in the original. White J, dissenting on this point, would have allowed the appeal to the extent of setting aside the s 20C declaration. Gray and Vanstone JJ, in their separate reasons, each affirmed the making of the declaration but did not comment directly on these observations of White J as set out in the text.
[44] Cf R v Ainsworth [2008] SASC 67 at [56]; (2008) 100 SASR 238 at 253-4.
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.[45] 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. In this latter respect, it should be borne in mind that the appellant, albeit with an appalling record as a youth but with, to date, a relatively limited criminal record as an adult, has now been declared a serious repeat offender and was so characterised at the age of 22. According to s 20B(4) (and, it would appear, in accordance with the new s 20BA) the appellant is likely forever to be so characterised.[46] Thus, whenever in the future he were to be sentenced for a serious offence (s 20B(4)) or, more likely, any offence (the new s 20BA(1)) the court sentencing the appellant will not be bound to ensure that the sentence imposed is proportional to the gravity of the offence and will be obliged when setting a non-parole period to fix one that is at least four-fifths the length of the sentence.
[45] In this respect, and again in the context of orders for indefinite detention, the observations of Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ in Buckley v R [2006] HCA 7; (2006) 224 ALR 416 at [5]-[7] are apposite.
[46] See the definition of “serious repeat offender” in the (current) s 20A(1).
It is true that under (the new) s 20BA(2) there is a discretion in the sentencing court (not available pursuant to s 20B prior to the 2013 amendments) to declare that this harsher sentencing regime is not to apply to a serious repeat offender if that person satisfies the court by evidence given on oath that:
(a)his or her personal circumstances are so exceptional as to outweigh the primary policy of the criminal law of emphasising public safety; and
(b)it is, in all the circumstances, not appropriate that he or she be sentenced as a serious repeat offender.
Nevertheless, the permanency of the declaration will remain and the pre-conditions to this further discretion do not appear to be of the type that will be easily satisfied.
The question of whether or not the Judge’s exercise of discretion, once the pre-conditions in s 20B(1) were made out, miscarried is to be assessed in accordance with the well established principles set out by Dixon, Evatt and McTiernan JJ in House v The King.[47] In my view and with respect, the Judge’s discretion did miscarry for reasons which I now discuss.
[47] (1936) 55 CLR 499 at 504-505.
As I have already indicated, the appellant has an appalling criminal record. The number of offences committed, including the number of offences regarded by the community as extremely serious types of offences (when reference is made to the legislative response by way of maximum penalties and otherwise) and particularly having regard to the relatively short timeframe within which these offences have been committed, is quite shocking.
If quantity of offences alone was sufficient, this appellant would be a strong candidate for a declaration that he is a serious repeat offender. To have acquired a record of offending that is five pages long by the age of 21 is exceptional. However, the appellant’s prior offending has mostly been dealt with by community based orders or suspended terms of detention. Even the four immediate terms of detention were not particularly lengthy. This is likely to have been contributed to by the fact that the correctional system for young offenders, ordinarily, has a very strong commitment to education, training and rehabilitation of young people with detention being very much a last resort. In addition, it is likely that the appellant, no doubt because of his very difficult personal circumstances, has been treated, over a lengthy period of time, quite mercifully within that already lenient system. The appellant did not take advantage of this leniency by way of working towards rehabilitation; to the contrary, he seems to have taken advantage of this leniency to persist with a criminal and entirely anti-social lifestyle.
I will assume for the present but without deciding that, where s 20B requires an opinion that the person’s history of offending warrants a particularly severe sentence in order to protect the community, the focus is not restricted to protection from acts of violence. However, I anticipate that, typically, a declaration under s 20B (now s 20BA) will be sought in the case of particularly and repeatedly violent offenders.
It was difficult for the Judge and it is difficult for this Court, on appeal, to arrive at an accurate appreciation of just how serious (in nature, as opposed to quantity) the appellant’s prior offending has been, particularly those offences which apparently involved elements of violence. There has been a very large number of offences – by their nomenclature, very serious – but there is little, if any, information about where on the spectrum of conduct embraced by any such offence the appellant’s behaviour fell. For example, an aggravated serious criminal trespass (residence occupied) can involve a simple break and enter unbeknown to occupants who are asleep or a much more serious “home invasion” involving threats of or actual harm to occupants. A charge of assault police might involve an unprovoked attack with fists or a weapon or push and shove when being questioned by police or preliminary to an arrest.
The Court knows very little about the circumstances of the appellant’s prior offending other than that which came before the sentencing Judge and that dealt with by Judge Davey. It cannot be doubted that the offending before Judge Davey, particularly the offence of aggravated cause harm with intent, and the aggravated robberies and aggravated cause harm with intent before the sentencing Judge involved serious acts of violence. However, what might be inferred from the nature of the penalties imposed on the appellant as a youth is that much of his earlier offending related to conduct at the lower end of seriousness for the offence in question.
When (finally) the appellant was sentenced for the first time to a period of detention in September 2006 at age 16 ((xi) above) it was for two counts of aggravated serious criminal trespass (one residence occupied and the other non-residence) and three counts of escape custody together with other offences. The fact that the appellant received only seven months detention in total might suggest that the circumstances of each of the criminal trespass offences would place it at the lower end of the scale of seriousness for that offence. This should also be understood in the context that the appellant’s record by age 16 would appear to have allowed limited, if any, scope for leniency when sentencing.
There is a limit to the extent to which inferences such as those just posited might confidently be drawn from the appellant’s record of offending by itself. However, this lack of evidence cuts both ways. In my view the Judge placed too much weight on the number and nature of the appellant’s prior offences given that there was little, if any, evidence or information as to the circumstances of each such offence. It is (for reasons developed later) a very serious step to declare a person a serious repeat offender. It is for that reason that White J expressed the opinion that cogent evidence is required. In my view, this extends to a need for cogent evidence concerning the factual basis underlying at least that part of the person’s history of offending which is integral to the formation of the requisite opinion. In some circumstances, such as here, where substantial reliance is placed on a person’s extensive criminal antecedents as a youth, mere reference to the recorded offender history may not be sufficient.
There are other factors relevant to the exercise of the discretion some of which the Judge recognised as relevant. However, to the extent they were recognised as relevant they were, in my view, given insufficient weight.
This was only the appellant’s third appearance in an adult court. He had been treated extremely leniently in the past. He was still very young. Whilst he is now 22, he has been in an adult prison since the age of 19 and, on any analysis, will remain so for many more years. His history shows that he has few, if any, life skills and coping mechanisms. It is likely that he escaped out of frustration at having parole delayed and with a sense of grievance. The appellant was of the opinion that he had completed the required programmes. The Crown conceded during sentencing submissions that the appellant had been eligible for release but was not granted parole “for reasons that appear to have been an administrative error”.[48] Once outside it is likely he was in a state of desperation. There is the suggestion that he wanted money for drugs. According to counsel’s sentencing submission, he had been binge drinking and was heavily intoxicated at the time the offences were committed.[49] This is the context within which an assessment of the appellant’s 24 hour period of criminal conduct after escaping and an assessment of what that might suggest about the appellant’s future prospects for rehabilitation, if given appropriate assistance, should have been made.
[48] AB 143-144, 153.
[49] AB 146, 147.
I also am not satisfied, from the Judge’s remarks, that his Honour evinced a sufficiently clear appreciation of the exceptional nature of the declaration to be made. It is exceptional for, at least, four reasons.
(i) The sentencing Judge will not be bound by the principle of proportionality. The importance of proportionality, as a sentencing principle, was emphasised in the remarks of Sulan J and White J quoted earlier. This is a matter of real significance especially in the case of a person as young as the appellant and in light of the fourth consideration to be mentioned.
(ii)The Judge will be obliged to fix a non-parole period of at least four-fifths the length of the sentence. The Court, in the ordinary case, has a wide discretion when fixing non-parole periods. Fixing a period of four-fifths or even greater, for particular offending, will not necessarily be indicative of error. However, a very high non-parole period usually will limit greatly the capacity for a person, when ultimately released, to be integrated into the community in a controlled manner under the close supervision of the Parole Board. This factor is of particular significance where a person as young as this appellant is concerned. There is a trade off here. Whilst keeping a person in prison longer offers an important form of protection to the community so also does the provision of a suitable period of parole and supervision once the person is (in almost all cases, inevitably) released. The observations of the Chief Justice in R v MacGowan[50] are apposite.
I turn now to the non-parole period. Non-parole periods are commonly fixed at between 50 per cent and 75 per cent of the head sentence. It is the sentencing judge’s assessment of the prospects of rehabilitation which will most influence the actual proportion fixed in a particular case. Non-parole periods outside of that range will reflect either adverse or favourable circumstances which are not commonly encountered. That position is reflected in the statutory minimum non-parole period of four-fifths prescribed for serious repeat offenders. Whether or not the appellant’s prior offending made him vulnerable to a declaration to that effect need not be considered because no such application was made.
To my mind, it is a serious step to conclude that a man as young as the appellant will not be a suitable candidate for rehabilitation on parole until he has served 75 per cent of a sentence as substantial as the head sentence imposed by the Judge. Non-parole periods should recognise the capacity for reform and change in young offenders and the importance of allowing them an opportunity to do so. Moreover, for sentences exceeding five years, release on parole is not automatic but subject to the discretion of the Parole Board.
If the appellant’s prior offences had been committed as an adult, there could be no complaint about the high proportion, 75 per cent, which the non-parole period bears to the head sentence. The appellant’s offending history shows every indication of an intractable predisposition to offences of this kind and very little respect for the property of others or the laws which protect it. Nonetheless, it must be recognised that the appellant’s offending is, at least to some extent, the product of his juvenile immaturity, the absence of any family support and stability, and drug taking.
(iii)As far as s 20B (in its earlier form) is concerned, the “sentence” with respect to which proportionality need not apply and the four-fifths non-parole period must apply, is the sentence ordered with respect to any “serious offences” being dealt with. The judge recognised this and directed himself that any non-parole period set for the appellant had to be at least four-fifths of the 10 years and 2 months he would have ordered for the two aggravated robberies, if standing alone. However, under the new regime (the 2013 amendments) it would seem that s 20BA requires the sentence for any and all offences to be dealt with in this way, once a declaration that the person is a serious repeat offender has been made.
(iv)A fourth reason why the making of such a declaration is exceptional is that the person concerned is likely to be characterised indefinitely as a serious repeat offender with the consequences that follow for future sentencing as described in (i), (ii) and (iii) above).[51]
[50] [2012] SASCFC 138 at [20]-[22] with whom Anderson and Peek JJ agreed (footnote omitted).
[51] Subject to the qualification in s 20BA(2) earlier identified.
There is no doubt that the Judge made the declaration “with great reluctance”. However, I am not satisfied that his Honour paid sufficient regard to the possible future consequences (particularly (i), (ii) and (iii) in the context of (iv) immediately above) when considering whether the appellant’s history of offending warranted a particularly severe sentence (in the present case) in order to protect the community. The considerations set out in (i) to (iv) above are relevant, inter alia, to the consideration of whether a “particularly severe” sentence might in the present case be counterproductive in offering protection to the community. There will be a real risk that a person of the appellant’s age and background who, after spending almost 12 years in custody from the age of 19, thereafter is routinely sentenced as a serious repeat offender, will quickly become institutionalised, rendered incapable of rehabilitation and progressively more dangerous.
Further, a Judge is always obliged when sentencing (including the setting of both head sentence and non-parole period) to give proper effect to the need to protect the safety of the community[52] and the need to protect the security of the lawful occupants of their home from intruders.[53] For some of the offences that were before the Judge the maximum penalties are high and his Honour already had the capacity to set a particularly severe sentence in order to protect the community without having to make a s 20B declaration with the consequences for the future that such a declaration brings. It is true that no matter how much a Judge might perceive there to be a need to protect the community, the “ordinary” sentencing powers do not allow for the principle of proportionality to be ignored. Only a s 20B declaration permits this. However, and curiously, the Judge having made the declaration did not proceed to review the indicative head sentence already arrived at and did not, it would seem, see a need to ignore the proportionality principle.
[52] Section 10(2)(a) of the CLSA.
[53] Sub-section 10(2)(b) of the CLSA.
There is no suggestion in the remarks that his Honour had already ignored the proportionality requirement when arriving at his indicative sentences for the two aggravated robberies in advance of considering and resolving the s 20B application. Either the indicative head sentence ultimately imposed was already “particularly severe” but intended to be proportionate and arrived at in the exercise of the ordinary sentence setting process without the need for a s 20B declaration or, if not and notwithstanding the making of the declaration, his Honour saw no need to impose a “particularly severe” head sentence in order to protect the community. It would seem that his Honour’s focus was solely on the application of the minimum four-fifths non-parole period.
Having said this, there is nothing in Division 2A to indicate that a declaration once made must be reflected in the head sentence. Sub-section 20B(4)(a) provides only that the court is not bound to apply proportionality whereas s 20B(4)(a) provides that the non-parole period must be at least four-fifths. Nevertheless, his Honour did not explain why in this case an outcome similar to that arrived at could not have been achieved in the absence of the s 20B declaration. In my view, the Judge paid insufficient regard to the considerable sentencing discretion already available to him.[54]
[54] Cf; R v P, A; P, A v Police [2013] SASCFC 3 at [75] (White J).
In any event, the nett effect of the s 20B declaration on the actual non-parole period set can be seen as marginal. The Judge was concerned to ensure that the minimum four-fifths requirement applied only with respect to the “serious offences”, the two aggravated robberies.[55] It is to be inferred from his Honour’s remarks dealing with the non-parole period that he saw no need to exercise the discretion to go beyond the four-fifths minimum with respect to the “serious offences” and that he did not intend a four-fifths non-parole period to apply to the other offending before him.[56]
[55] The aggravated cause harm with intent was also a “serious offence”. However, the indicative head sentence for this offence was treated as concurrent with that for one of the aggravated robberies and therefore did not form part of the four-fifths calculation.
[56] His Honour included in the non-parole period calculation an additional 50 per cent of the indicative terms for those of the remaining offences that were to be served cumulatively.
However, the non-parole period as finally determined still represents 79.50 per cent of the ultimate head sentence. In other words, the final result equated, effectively, with a four-fifths non-parole period for the “serious offences” (in accordance with s 20B) for the other (non “serious”) offences and with respect to the three year term previously set by Judge Davey. The reason the mathematics worked out this way is because his Honour added into the non-parole period, the two years and ten months of the Judge Davey three year sentence that the appellant had served at the time of sentencing.
It is to be remembered that according to s 20B(3) a declaration is to be made only where the Court is of the opinion that the person’s history of offending warrants a particularly severe sentence in order to protect the community. The “sentence” referred to is that to be handed down with respect to the “serious offences” then before the Court.
As I have endeavoured to explain, given the nature of the sentence ultimately set and how it was structured, it is not clear to me why the declaration was necessary. In particular, it is not clear how it assisted in enabling a particularly severe sentence for the two aggravated robberies to be set or how it was that such a “particularly severe” sentence for those two serious offences became necessary in order to protect the community.
Prior to the sentence given by Judge Davey the appellant had no experience of long term incarceration in an adult prison. His experience of incarceration had been limited to relatively short periods in detention. This is a punishment of quite a different order from that experienced in an adult prison. It is true that the period spent in the Port Augusta adult prison prior to escaping did not serve to deter the appellant from further offending. However, this further offending is to be viewed in the context I have earlier described. I am not satisfied that imprisonment for a substantial period or periods in an adult prison has yet been shown not to have any reasonable personal deterrent effect which might contribute significantly to the protection of the public. I am not satisfied that his Honour sufficiently took this into account when deciding that a particularly severe sentence was warranted in order to protect the community. In this context, I agree with the following written submission by counsel for the appellant.
The appellant in this case is still a young man of only 22 years of age. He is of aboriginal descent and comes from a deprived background and had a history of drug abuse. Although he has a poor offending history, despite the reservations expressed as to his prospects of rehabilitation, it cannot be said that such a young man with increased maturity and the inevitability of a significant period of imprisonment to be served in any event, would not be able to change his behaviour.
I agree with counsel that the discretion under s 20B had been invoked prematurely.
The making of a s 20B declaration is an integral component of the single sentencing decision as handed down.[57] Since the Judge erred in making the declaration the whole sentence should be set aside for this reason alone.
[57] Cf; McGarry v The Queen (2001) 207 CLR 121 at [7]-[9], Strong v The Queen (2005) 224 CLR 1 at [21]-[29], [80] and R v Saunders [2011] SASCFC 37 at [36]-[46] (Gray J) [73] (Vanstone J) [114]-[116] (White J).
As such, it is unnecessary to deal with the appellant’s alternative contentions that in any event, the sentence was manifestly excessive and that there was a failure to address the principle of totality. I will leave for another time consideration of the extent to which, if at all, and the manner by which, if at all, the notions of manifestly excessive and totality are to be applied in the context of a s 20B declaration which allows for a particularly severe sentence not necessarily in compliance with the principle of proportionality.[58]
[58] As to the issue of totality and s20B, see generally, R v Saunders [2011] SASCFC 37 at [59] (Gray J).
Re-sentencing of the appellant
I would allow the appeal, set aside the head sentence and non-parole period and proceed to a re-sentencing of the appellant. In so doing, I would decline to make a declaration under s 20B that the appellant is a serious repeat offender for reasons already given.
Where a number of offences are being dealt with by the imposition of just one penalty pursuant to s 18A of the CLSA it often will be more informative and appropriate for individual indicative sentences to be identified. Sometimes this will be essential, such as, for example, where under s 20B (as it previously stood) only certain of the offences are to be the subject of a mandatory minimum four-fifths non-parole period. However, it is not necessary always to do so.[59] In the present case the issue of concurrency is a significant one and must be taken account of. The Judge indicated his approach to the issue of concurrency by nominating some of the sentences to be wholly concurrent with others.
[59] R v Copeland (No 2) (2010) 108 SASR 398.
It is not always necessary to approach the matter in this way. In appropriate circumstances it can be open to a sentencing judge also to direct that a particular sentence be partially concurrent with another even where the offences in question do not form part of a single course of conduct.[60] Of course, where s 18A of the CLSA is used without identifying individual sentences, whilst the issue of concurrency still must be considered, the extent of any concurrency allowed for will not be expressly fully particularised. Provided issues of concurrency and totality are not overlooked there will be occasions when it is appropriate and convenient to go directly to a single sentence to be imposed under s 18A.[61]
[60] R v Copeland (No 2) (2010) SASR 398 at [87], [106].
[61] R v Symonds [1999] SASC 217 at [22] (Doyle CJ with whom Prior and Mulligan JJ agreed), R v Van Der Horst [2006] SASC 243 at [54]-[57] (Vanstone J) [22] (Gray J) and see generally Gray J in R v Copeland (No 2) (2010) 108 SASR 398 at [13]-[28] and the authorities there discussed by his Honour.
In exercising the sentencing discretion afresh I am of the view that the head sentence arrived at by the Judge pursuant to s 18A, of 11 years and ten months after allowing for a 15 per cent discount was, in all the circumstances, too high. I take the view that the appellant’s 24 hour crime spree consisted of “similar and proximate offences committed in furtherance of a single plan”.[62] The plan, as misguided and criminal as it was, was survival (on the appellant’s terms) following the escape.
[62] The phrase is that employed by Kourakis J (as he then was) in R v Copeland (No 2) (2010) 108 SASR 398 at [102].
The factors identified by Kourakis J in R v Copeland (No 2)[63]as relevant to the extent to which concurrency might be found to apply, have force in the circumstances of this case.
[63] (2010) 108 SASR 398 at [102]-[106].
It is difficult, but I think useful, to attempt to identify why it is that very similar and proximate offences committed in furtherance of a single criminal plan warrant, at least to some extent, concurrent sentences.
First, there is the consideration, which applies in all cases when sentences of imprisonment are made cumulative, that the deprivations of a sentence of a particular length will be suffered all the more deeply if it is served after the completion of one or more earlier terms. In Jarvis v The Queen Ipp J explained this consideration in the following way:
What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of seven years may be appropriate for one set of crimes and a sentence of eight years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved simply, because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison.
(Emphasis added.)
Secondly, in my view, the length of imprisonment necessary to achieve specific and general deterrence in the case of sentences imposed for a single course of conduct will generally be less than the result of the multiplication, by the number of offences committed, of the sentence which would have been imposed for a single offence.
Thirdly, where the offences are committed within a very short space of time it may be that the limited time and capacity which the offender had to reflect on whether or not to commit the subsequent offences mitigates his or her moral culpability.
There can be no hard and fast rules, but considerations like the ones to which I have referred will inform the characterisation of offences as one or more courses of conduct and the extent, if any, to which the sentences imposed for them should be concurrent. I hasten to add that too much emphasis should not be placed on the characterisation of multiple offences as a single course, or a number of courses, of conduct. Even where the connections are insufficient to characterise the offences as a single course of conduct it may be that there is sufficient reason to make the sentences at least partially concurrent.
I have in mind what I consider to be an appropriate starting point for the appellant’s 24 hour incursion into criminal activity after he had escaped. The matters I have considered in reaching this starting point include: the maximum penalties for each offence set by parliament, my appreciation of the overall criminality of the appellant’s conduct and the need for adequate punishment, the seriousness of each of the offences as committed, particularly the aggravated cause harm and aggravated robbery offences, such sentencing guidelines as are available, such as to be found in, for example, R v Place,[64] the need to set a sentence that will serve to protect the public and to promote personal and general deterrence, an appreciation of the appellant’s prior criminal record which significantly reduces the scope for leniency, the appellant’s young age and the need to provide for a sentence that will support future rehabilitative efforts notwithstanding the appellant’s guarded prospects for rehabilitation.
[64] (2002) 81 SASR 395.
In the circumstances of this case it would be artificial to break this starting point down across the individual sentences and to particularise aspects of total and/or partial concurrency.
For the offence of escape custody I would start with a term of imprisonment for 12 months as did the Judge which I reduce to nine months on account of the plea of guilty at arraignment. Such a sentence for this type of offence can be regarded as lenient.[65] For all of the other offences committed during the 24 hour period after the escape, and exercising the discretion available under s 18A to impose just the one penalty, I would start with a term of imprisonment for 12 years which I reduce to eight years and nine months on account of the pleas of guilty at arraignment. These two terms should be served cumulatively. That gives rise to a total head sentence of nine years and six months. It is no longer possible to order, as did the Judge, this sentence to be served cumulatively on the sentence of three years ordered by Judge Davey which commenced 11 October 2009. However, the appellant has remained in custody following the expiration of that sentence on remand for the present offending.
[65] See Doyle CJ in R v Shepperbottom [2001] SASC 31.
To take account of this I would backdate this head sentence to commence 10 October 2012. In setting the non-parole period I am mindful, for reasons previously explained, of the importance in my view, of providing for an adequate period during which the appellant might be released into the community with the assistance and supervision of the Parole Board. I also have taken into account that the appellant has now, in effect, served the whole of Judge Davey’s sentence of three years without enjoying any of the advantages parole can offer. I therefore would propose a non-parole period of six years and four months. This non-parole period would also be backdated to commence 10 October 2012.
As indicated towards the beginning of these reasons, there is nothing before the Court to suggest that the appellant, despite being eligible to apply for parole on 11 April 2012, was either granted parole or found to be entitled to be released on parole, although remaining in custody on the present matters. As such, there is no basis upon which the head sentence of nine years and six months and the non-parole period of six years and four months might be ordered to commence any earlier than 10 October 2012.[66]
[66] See, for example, R v Forrest (1987) 46 SASR 75 at 78; R v Hearn (2001) 80 SASR 175; R v Edwards [2011] SASCFC 33 and s 74A of the Correctional Services Act 1982.
Conclusion
I would make the following orders.
1. That the appeal be allowed and the sentence quashed.
2.That the appellant is to be re-sentenced to a term of imprisonment for nine years and six months with a non-parole period of six years and four months, both backdated to commence 10 October 2012.
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