R v M, Ste

Case [2013] SASCFC 111

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v M, STE

[2013] SASCFC 111

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Blue and The Honourable Justice Stanley)

21 October 2013

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

CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - HABITUAL CRIMINALS - PROCEDURE

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

The appellant was convicted of two counts of aggravated indecent assault, one count of persistent sexual exploitation of a child, and two counts of indecent assault. The appellant was declared a serious repeat offender pursuant to s 20B of the Criminal Law (Sentencing) Act 1988 (SA). He was sentenced to a total head sentence of eight years and nine months’ imprisonment, with a non-parole period of seven years. He contends that the sentence was manifetly excessive.

The appellant appeals against the sentence.  He contends that he was not eligible to be declared a serious repeat offender, or in the alternative that the Judge erred in declaring him a serious repeat offender.

Held by the Court allowing the appeal:

1 The discretion under s 20B is enlivened where a person has committed the requisite number of separate offences or separate courses of conduct, regardless of when the person is convicted of the offences [37].

2 In the circumstances, the hearing of sentencing submissions showed unequivocally that the appellant had been convicted of each of the offences for the purpose of s 20B [40].

3  The two offences against ARS were committed after 27 July 2003, and were sufficient to enliven the discretion under s 20B [42]-[43].

4 The Judge gave inadequate reasons for exercising his discretion to make the s 20B declaration [58].

5 There was insufficient cogent evidence for the Judge to conclude that the appellant's history of offending warranted the imposition of a disproportionate sentence to protect the community [65].

6 The Judge failed to address the threshold question under s 20B of the requirement to protect the community [68].

7 The Judge failed to address the consequences which flow from a declaration [71].

8 The Judge’s discretion, in making the declaration, miscarried [72].

9  The appellant is resentenced to terms of imprisonment totalling seven years and nine months.  A non-parole period is fixed at three years and six months’ imprisonment [79]-[82].

Criminal Law (Sentencing) Act 1988 (SA) s 9, s 20B, s 23; Habitual Criminals Amendment Act 1907 (SA); Criminal Law Consolidation Act 1935 (SA) s 319; Criminal Law (Sentencing) (Serious Repeat Offenders Amendment Bill) 2003 (SA); Statues Amendment (Sentencing of Sex Offenders) Act 2005 (SA); Habitual Criminals Act 1957 (NSW); Penalties and Sentences Act 1992 (Qld), referred to.
The Queen v White (1967-1968) 122 CLR 467; Maxwell v The Queen (1996) 184 CLR 501; Shrubsole v Rodriguez (1978) 18 SASR 233; R v Curtis (No 2) (2009) 105 SASR 411; R v…

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R v M, Ste [2013] SASCFC 111
Case
[2013] SASCFC 111
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CaseChat Overview and Summary

The appellant, R v M, appealed against sentences imposed by a sentencing judge, primarily challenging the declaration that he was a serious repeat offender and arguing that the overall sentence was manifestly excessive. The offences involved included persistent sexual exploitation of a child and aggravated indecent assault against three complainants, with the aggravating factor being the age of the victims, all under 14 years old.

The central legal issues before the Court of Appeal were whether the sentencing judge erred in declaring the appellant a serious repeat offender under section 20B of the relevant legislation, and if so, whether the sentence imposed was manifestly excessive. Specifically, the court had to determine the meaning of "convicted" for the purposes of section 20B, the sufficiency of the evidence to enliven the discretion to make such a declaration, and the adequacy of the judge's reasons for exercising that discretion.

The Court of Appeal allowed the appeal, holding that the discretion to declare a person a serious repeat offender is enlivened when the requisite number of separate offences or courses of conduct have been committed, irrespective of the timing of their conviction. The court found that the appellant had unequivocally been convicted of the offences for the purposes of section 20B, and that two offences committed after 27 July 2003 were sufficient to enliven the discretion. However, the court determined that the sentencing judge had given inadequate reasons for exercising the discretion, failed to address the threshold question of community protection, and did not consider the consequences of such a declaration. Consequently, the judge's discretion miscarried.

The Court of Appeal resentenced the appellant to a total term of imprisonment of seven years and nine months, with a non-parole period of three years and six months.

Orders

Orders of the court

Held by the Court allowing the appeal:

1 The discretion under s 20B is enlivened where a person has committed the requisite number of separate offences or separate courses of conduct, regardless of when the person is convicted of the offences [37].

2 In the circumstances, the hearing of sentencing submissions showed unequivocally that the appellant had been convicted of each of the offences for the purpose of s 20B [40].

3 The two offences against ARS were committed after 27 July 2003, and were sufficient to enliven the discretion under s 20B [42]-[43].

4 The Judge gave inadequate reasons for exercising his discretion to make the s 20B declaration [58].

5 There was insufficient cogent evidence for the Judge to conclude that the appellant's history of offending warranted the imposition of a disproportionate sentence to protect the community [65].

6 The Judge failed to address the threshold question under s 20B of the requirement to protect the community [68].

7 The Judge failed to address the consequences which flow from a declaration [71].

8 The Judge’s discretion, in making the declaration, miscarried [72].

9 The appellant is resentenced to terms of imprisonment totalling seven years and nine months. A non-parole period is fixed at three years and six months’ imprisonment [79]-[82].

Background

Background to the litigation

The defendant appeals against the sentences. There are essentially two complaints on the appeal. The first concerns the sentencing Judge’s declaration that the defendant was a serious repeat offender. The second is that the sentence was manifestly excessive. Background The charges to which the defendant pleaded guilty were committed after the defendant had moved to Whyalla in 1998. He lived with his brother and his brother’s partner for approximately three months whilst he sought separate accommodation. His brother’s partner had two daughters from a previous marriage, the complainants JAF and ARF, as well as two infant sons of whom his brother was the father. After the defendant obtained independent accommodation, he visited his brother’s house on a daily basis. His brother and his brother’s partner regularly left the defendant at the house alone with the children. The offence of persistent sexual exploitation of a child related to the complainant, JAF. When JAF was about six years old, the defendant came into her room at night whilst her parents were out shopping. He inserted his finger in her vagina. He then invited her to the lounge room to watch a movie. There, the defendant exposed his penis and masturbated in front of her. He put her hand beneath his hand on his penis and continued to masturbate. He again inserted his finger inside her vagina. In a statement to police, JAF said that the defendant regularly visited the house and that on most occasions he inserted his finger or thumb into her vagina. The sentencing Judge accepted that between 1997 and December 2002 the defendant regularly digitally penetrated JAF’s vagina and procured her to masturbate him on many occasions. The two counts of indecent assault relate to the complainant, ARF. The offending against ARF occurred around 2001. JAF and ARF regularly visited the defendant and his girlfriend to play with the daughter of the defendant’s girlfriend. When ARF was around 7 or 8 years old the defendant picked her up and put her on his shoulders while they were playing in the backyard. While doing so, he put his hand inside her shorts and touched her vagina. On another occasion the defendant lured ARF into his bedroom. When ARF entered the room, the defendant had his penis exposed and was touching himself. When ARF tried to leave, the defendant forced her hands on his penis. The charges for which the defendant was found guilty were two counts of aggravated indecent assault. The complainant, ARS, was the daughter of friends of the defendant. The Judge found that the first offence occurred sometime between June 2007 and June 2009 when the complainant was aged around 11 years. The defendant sat beside the complainant in her parent’s backyard and put his hand on her inner thigh, moving it up inside her shorts. He did not touch her genitals. The second offence occurred sometime between January 2008 and December 2009 when the complainant was aged about 13 years. The defendant touched the complainant on her breast with his hand whilst hugging her goodbye in the hallway of her parent’s house. The aggravating circumstance of both offences was that on each occasion the complainant was under 14 years of age.Personal circumstances

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Counsel for the defendant submits that a person is only “convicted” within the meaning of s 20B when a conviction is formally recorded by the court. Counsel for the Director submits that the word “convict” needs to be read in its context in s 20B and that it is sufficient that the court does something, whether overt or otherwise, to acknowledge an acceptance of the guilt of the offender. In Maxwell v The Queen, Dawson and McHugh JJ observed:[8][8] Maxwell v The Queen (1996) 184 CLR 501, 509.…[W]hilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court. Of course, the formal entry of the plea upon the record may afford the clearest evidence of a determination of the court, but a determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea....Thus Australian authority indicates that at common law conviction encompasses a determination of guilt by the court and does not necessarily require judgment on the basis of that determination.There are a number of ways in which a court may show acceptance of a guilty plea. The judge may expressly indicate that the accused was convicted before making any order in relation to that conviction. Another way in which the court may act upon a plea of guilty is by the allocutus to which reference was made earlier. The allocutus was not given here. There may also be implied acceptance, for instance, by proceeding to pass sentence, or by calling for the record from the gaol recorder. In Griffiths v The Queen, Aickin J held that the remanding of an accused for sentence after a plea of guilty was an unequivocal indication that the accused had been found guilty because the step of remanding could not be taken without there having been a conviction. In the present case, the appellant was remanded for sentence on 25 October 1993 and so, on Aickin J’s view, there was already a conviction. There may be a conviction when the judge enters into a consideration of what should be done in relation to sentencing, for example, by hearing evidence relevant to sentencing, or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentencing to be obtained.In Griffiths v The Queen, Jacobs J held that, whether a conviction arose from a jury verdict or a plea of guilty, there was a conviction when the verdict or plea was recorded. In the present case, the plea of guilty was not formally recorded. The only relevant record in the appeal book is an endorsement by the judge’s associate again “Plea” as follows:Not guilty of murder but guilty of manslaughter – accepted by Crown in full satisfaction of indictment.The absence of a formal record is not determinative as that is a purely administrative act and court practice is not consistent.[Emphasis added. Footnotes omitted.]

Ratio Decidendi

Legal Principle Established

The relevant sections as in force in June 2012 provided:...serious offence means—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)....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:...(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.Legislative history Since 1907 South Australian sentencing judges have had a discretion to deal with serious repeat offenders by imposing a sentence which is disproportionate to the offence for which the person is to be sentenced. Pursuant to the Habitual Criminals Amendment Act 1907 (SA), a person could be declared by a sentencing judge to be an habitual criminal. The consequence of such a declaration was that the person was detained until further order. That section was repealed upon the enactment of the Criminal Law Consolidation Act 1935 (SA). Section 319 of the new Act was in similar terms to the repealed section. Section 319(1) provided:When any person is convicted on information of an offence of one of the classes of offences mentioned in subsection (3), the following provisions of this section shall take effect: -(a) where that person is so convicted of an offence included in classes I, II, III or IV of the offences mentioned in subsection (3), and has been previously so convicted on at least two occasions of an offence of the same class, the judge before whom that person is so convicted may, in his discretion, declare as part of the sentence of such person that he is an habitual criminal;(b) Where such person is so convicted of an offence included in any of the classes V., VI., VII., or VIII., mentioned in subsection (3), and has been previously convicted on at least three occasions of an offence mentioned or included in any of the said clauses V., VI., VII., or VIII., such judge may, in his discretion, declare as aforesaid that such person is an habitual criminal.