R v M, Ste
[2013] SASCFC 111
•21 October 2013
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 Miller (unreported, Nyland J, SASC 21 September 2006); R v Tregaskis [1937] SASR 358; McGarry v The Queen (2001) 207 CLR 121; Strong v The Queen (2005) 224 CLR 1; Buckley v The Queen [2006] HCA 7; R v Williams [2006] SASC 377; R v P, A [2013] SASCFC 3; R v Jackamarra [2013] SASCFC 98; R v Saunders [2011] SASCFC 37; R v Scobie (2003) 85 SASR 77, considered.
R v M, STE
[2013] SASCFC 111Court of Criminal Appeal: Sulan, Blue and Stanley JJ
THE COURT: The defendant and appellant, M, STE, was charged with two counts of aggravated indecent assault of ARS, committed between 1 June 2007 and 31 December 2009. On 24 May 2012, he was found guilty of both offences following a trial by Judge alone in the District Court. The maximum penalty for aggravated indecent assault is imprisonment for 10 years.
By separate information, the defendant was charged with other sexual offences relating to young girls. On 15 June 2012, the day before his trial in relation to these offences was to commence, the defendant pleaded guilty before a different Judge to persistent sexual exploitation of a child, JAF, between 1997 and 2002, and two counts of indecent assault in respect of ARF who was at the time under the age of 12 years, both committed in 2001. The maximum penalty for persistent sexual exploitation of a child is life imprisonment and, for each offence of indecent assault, 10 years’ imprisonment.
The Judge before whom the defendant pleaded guilty determined to sentence the defendant for all offences. No objection was raised by counsel. On 29 June 2012 the Judge sentenced the defendant to a total head sentence of eight years and nine months’ imprisonment. The Judge declared the defendant a serious repeat offender and imposed a non-parole period of seven years.
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
The defendant was born in Dandenong in 1965. The defendant was removed from his mother’s care at birth by Welfare Services who actively prevented her from seeing him. His father was incarcerated at the time. The defendant is the second eldest child and has four brothers and four sisters. He knows very little about most of his siblings except for one brother, with whom he shares a close relationship.
The defendant was 20 years of age when his father committed suicide at the age of 57. He had established a close relationship with his father at the age of 16 when he left S tate care. His father was a violent alcoholic but never physically abused him. He knows very little about his mother. She did not have a drug or alcohol problem and she was not violent. She has heart problems and is unable to reside independently in the community.
The defendant grew up in a series of foster homes in New South Wales. He was subjected to regular physical abuse. As a child he suffered from nocturnal enuresis. He would be thrashed for wetting the bed and not given breakfast. Due to the trauma of these events, the defendant continued to wet the bed on a daily basis until the age of 17. The most serious physical abuse occurred when he was 14, when he was severely caned for smoking.
When the defendant was six years old he lost the functioning of his legs, and later his whole body. He required hospital rehabilitation for four years to regain the functioning of his body. He was later diagnosed with polio. He continues to walk with a limp.
The defendant attended a number of schools. He struggled academically and had a significant learning disability. It has only been over the last five years that he has acquired basic literacy skills. He left school at the age of 16 having failed to pass year nine.
When he was 16, the defendant was permitted to leave State care. He obtained employment in Sydney. At the age of 18, the defendant obtained employment in Kalgoorlie testing soil samples. After 10 years, he left that job because of health concerns. He has not been employed since.
The defendant has been in a de facto relationship with his partner for 11 years. She is aware of his offending behaviour, and continues to be supportive of him.
Mr Balfour, a forensic psychologist, provided a report as to the defendant’s fitness to plead. He concluded that the defendant has an intellectual disability of borderline severity, with a level of intelligence in the bottom three percentile for the age group 45-55 years. He is functionally illiterate and innumerate. The defendant told Mr Balfour that he was sexually attracted to females aged between 20 and 50 years of age. He was adamant that he was not sexually attracted to children and said that he was not a paedophile.
Mr Balfour considered the defendant to have a degree of diminished responsibility because of his intellectual disability and childhood institutionalisation. The defendant’s intellectual disability was never formally diagnosed until Mr Balfour’s recent assessment. Consequently, the defendant has been severely disadvantaged in life as he has never been referred to appropriate rehabilitation services for intellectually disabled individuals.
The defendant accepted legal responsibility for his offending after his trial. He observed the trauma experienced by ARS in giving evidence and decided to accept responsibility in respect of the other complainants. He pleaded guilty to the second round of charged offences. In his second report, Mr Balfour considered that the defendant is motivated and ready to participate in rehabilitation for his acknowledged paedophilia. The defendant is remorseful and ashamed of his offending behaviour.
Mr Balfour considers that, whilst the defendant suffers from paedophilia, he is not exclusively sexually attracted to children. He has the ongoing support of his de facto partner of 11 years. His general criminogenic profile is in the low range of risk.
Sentencing remarks
The Judge summarised the offending. He referred briefly to the defendant’s personal circumstances. He referred to Mr Balfour’s report relating to the defendant’s fitness to plead. It is unclear whether he considered Mr Balfour’s second report of 29 June 2012 and, if so, what weight he gave to Mr Balfour’s opinion that the defendant suffers from an intellectual disability. He rejected the submission that the defendant was in a state of diminished responsibility when he committed the offences. However, he made no finding as to Mr Balfour’s opinion that the defendant would respond favourably to support from Disability Services and from their rehabilitation programs. Nor did he make any reference to Mr Balfour’s view that the defendant would respond well to supervision and assertive case management. The failure of the Judge to consider these matters is particularly significant when having regard to his decision to declare the defendant a serious repeat offender.
Serious repeat offender
The Judge made a declaration, pursuant to s 20B of the Criminal Law (Sentencing) Act 1988 (SA) (‘Sentencing Act’), that the defendant is a serious repeat offender.
Counsel for the defendant submits the defendant was not eligible to be declared a serious repeat offender. In the alternative, counsel submits the Judge erred in exercising his discretion to declare the defendant a serious repeat offender.
Section 20B of the Sentencing Act confers on a sentencing judge a discretion to declare a person a serious repeat offender. Once a person has been so declared, a judge is not bound to apply the principle of proportionality between the offence and the sentence, and must fix any non-parole period at at least four-fifths of the head sentence.
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.
The offence of larceny was included in class V of sub-section (3). In The Queen v White,[1] the defendant had been convicted of five counts of larceny on 15 March 1957. He was convicted of three counts of larceny on 6 April 1959. On 9 May 1962, he was convicted by a jury of three counts of larceny. White was sentenced for the 9 May 1962 convictions, and was declared a habitual criminal under s 319(1)(b).
[1] (1968) 122 CLR 467.
The High Court considered whether convictions on separate counts in one information qualified as separate “occasions” notwithstanding that the counts were heard in the one court at the one time. Menzies J, with whom Barwick CJ, McTiernan, Kitto and Taylor JJ agreed, held that there was no justification for reading the word “occasions” as meaning days. The Court held that there is an “occasion” every time a person is charged in court with an offence and is convicted upon that charge.[2]
[2] (1968) 122 CLR 467, 475.
Menzies J stressed the importance of the discretion as a safeguard against wrongful habitual offender declarations under the legislation:[3]
…I consider that when Chamberlain J. made the declaration which he did he acted within the authority conferred by s. 319 of the Act for, according to the proper construction of that section, the respondent had been previously convicted on at least three occasions of an offence mentioned in class V. of sub-s (3). The matter therefore became one for the exercise of the discretion which the learned judge had under the section. That judicial discretion is an ample safeguard against a declaration being made in a case where, notwithstanding a person has three convictions or more, he is not really an habitual criminal.
[3] (1968) 122 CLR 467, 478.
Barwick CJ summarised the history of s 319 and then gave the following explanation as to why the provision focused on previous convictions:[4]
…[T]he selection of previous conviction on at least a specified number of occasions as the condition giving rise to the judicial discretion does not appear to me to be founded on any specific concept of incorrigibility or lack of response by the prisoner to what is said to be the warning of a prior conviction or of a prior sentence. The selection is made I think because the frequency of the commission of an offence within the stated range of offences may mark habituation and call for special measures for the protection of the public and the reformation of the prisoner.
[4] (1968) 122 CLR 467, 471.
When the Sentencing Act was enacted in 1988, s 319 was repealed and incorporated largely unchanged as s 22 of the new Act.
Section 22 of the Act was repealed by s 4 of the Criminal Law (Sentencing) (Serious Repeat Offenders) Amendment Bill 2003 (SA). The amending Act inserted Division 2A into the Sentencing Act. In the Attorney General’s Second Reading Speech,[5] he noted the declaration in White was the last reported case of a declaration having been made. He said that the scheme was “simply unused.” The Attorney General outlined the elements of the new scheme. He said:[6]
The trigger for the declaration of a serious repeat offender is conviction for at least three offences punishable by a maximum of five years or more (that is the indictable offences listed) and that either a sentence of actual imprisonment has been imposed for each of these offences or, if sentence has yet to be imposed, actual imprisonment would be imposed for each of those offences. The offences must have been committed on at least three separate occasions or in the course of at least three separate courses of conduct.
It does not matter whether the offences are dealt with separately, or together, or are sentences pursuant to section 18A of the Criminal Law (Sentencing) Act, so long as there are three separate courses of conduct involved…
For example: A defendant is convicted in one trial of having committed a series of rapes. These rapes occurred in 1999, 2000 and 2001. That defendant is liable to be declared a serious repeat offender if a sentence of actual imprisonment would have been imposed for each of these offences, whether or not it is proposed to sentence the defendant separately or under s 18A.
[5] House of Assembly, 19 February 2003, Hansard SA 2322 (The Hon. M.J. Atkinson).
[6] House of Assembly, 19 February 2003, Hansard SA 2323 (The Hon. M.J. Atkinson)
The Division was amended in 2005, which provided that a declaration could also be made when the defendant has committed on at least two separate occasions a serious sex offence against a person under 14 years of age.[7]
[7] Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA).
Was the s 20B discretion enlivened in this case?
Offenders with no prior convictions
The defendant submits that the purpose of the scheme in Division 2A was to provide further discouragement to offenders who have been sentenced prior to sentencing for later offending. The defendant submits that, when an offender who comes before the court with no eligible prior convictions, in the sense that the offender has not been sentenced previously for eligible convictions, the discretion to make a declaration is not enlivened, even when the person is charged or convicted of what would otherwise be sufficient qualifying offences.
In order to enliven the discretion to make a declaration, an offender has to have committed on at least two 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 have been convicted of those offences. This inserts a requirement of separation between the offences which was not present in the habitual criminal legislation.
It is clear from a plain reading of s 20B that, where a person has committed the requisite number of separate offences or separate courses of conduct, the discretion to make a declaration will be enlivened, regardless of when the person is convicted of those offences and when the person is sentenced for those offences. For example, a person who is convicted at the one time of two separate serious sexual offences may be declared a serious repeat offender despite the convictions being entered instantaneously. Where an offender appears before a court for the first time and is convicted of the requisite number of offences committed on separate occasions, the discretion to make a declaration is enlivened. This construction is consistent with the High Court’s analysis in White.
Had the defendant been convicted?
Counsel for the defendant submits that, while the defendant had been found guilty of two offences and pleaded guilty to three offences, he had not at the time the sentencing Judge made the declaration been “convicted” of them and thus the discretion in s 20B was not enlivened.
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.]
The sentencing Judge’s hearing of submissions on sentence in relation to all of the offences showed an unequivocal acceptance of the defendant’s pleas and of the trial Judge’s findings of guilt. Further, the defendant’s guilt was formally acknowledged by the reading of the allocutus, which took place on 27 June 2012. Any additional requirement for formal acknowledgement would have been satisfied if the sentencing Judge had said in his remarks, prior to dealing with the s 20B declaration, that he would record a conviction in respect of each offence. Having made a declaration under s 20B, the Judge set the sentences imposed for each of the charged offences. In this circumstance the Judge’s process of reasoning in respect of s 20B was clear. Sentencing remarks are not to be equated with reasons for judgment.[9] In the circumstances, there was no requirement for the Judge to first identify that he was recording a conviction in respect of each of the offences before considering s 20B.
Retrospectivity
[9] See Shrubsole v Rodriguez (1978) 18 SASR 233, 235.
At the appeal hearing, counsel for the defendant submitted that, since some of the offences occurred before the enactment of Division 2A, the Judge’s discretion was not enlivened.
It is important to distinguish between the offence or offences upon which the court is to consider making a declaration under s 20B(3) (“declaration offences(s)”) and the offence or offences which render the defendant liable under s 20B(1) to the making of a declaration (“qualifying offences(s)”). Qualifying offences may be committed before or after 27 July 2003 when Division 2A was enacted. In R v Curtis (No 2), Gray J quoted from Nyland J’s observations in the sentencing remarks in R v Miller.[10] Gray J observed:[11]
It appears clear that as long as the offence under consideration was committed after 27 July 2003, previous offences may be taken into consideration in order to determine whether a declaration is warranted. As Nyland J observed, if convictions recorded prior to the passing of the legislation were not to be taken into account, it would have the effect of stultifying the intended operation of the provisions for some years.
[10] SCCRM-05-232, 21 September 2006.
[11] (2009) 105 SASR 411, [51].
The offences against ARS occurred between 2007 and 2009. Those two offences comprise both qualifying offences and declaration offences. Section 20B(3) applies to them. The discretion under s 20B to make a declaration that the defendant was a serious repeat offender was enlivened.
In these circumstances, it is not necessary to decide whether declaration offences may be committed before 27 July 2003, ie whether the offences against JRF and ARF enlivened the discretion to make a declaration.[12]
[12] In view of our conclusion that the discretion to make a declaration miscarried, it is also unnecessary to decide whether the sentencing Judge erred in regarding s 29B(4) as applying to the sentencing of the defendant for the offences against JRF and ARF.
Did the Judge err in his exercise of the s 20B discretion?
The appellant submits that the sentencing Judge erred in the exercise of his discretion under s 20B.
In R v Tregaskis, this Court considered a habitual offender declaration made under the repealed s 319 of the Criminal Law Consolidation Act 1935 (SA). The Court observed:[13]
…[T]he practice is that the declaration is not made, unless it appears to the Judge that the prisoner has been leading a persistently dishonest or criminal life. For that purpose the criminal record will frequently, if not generally, afford sufficient prima facie evidence of the fact: that is, if the crimes are numerous and serious, and the intervals – between the discharge from prison and the commission of the subsequent crimes – are short. But, on the other hand, if there should be any considerable interval between the convictions it is possible that further evidence would be required, and certainly any genuine attempt by the prisoner to live honestly should receive serious consideration The matters to be considered are the nature and the number of the crimes committed, and the intervals between them, together with any evidence that may be forthcoming of any effort to live honestly.
[Emphasis added.]
[13] R v Tregaskis [1937] SASR 358, 359.
In McGarry v The Queen, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said that an application for such an order “should be treated with commensurate care and attention to detail.”[14]
[14] McGarry v The Queen (2001) 207 CLR 121, 132.
In Strong v The Queen, the High Court was considering the Habitual Criminals Act 1957 (NSW). Kirby J made the following general remarks about how such provisions are to be approached by sentencing courts:[15]
In White, in 1968 this Court unanimously stressed the confinement of orders under legislation such as the Habitual Criminals Act to cases really requiring them. It emphasised the substantial content of the discretionary power to make such orders and hence the importance of making them only where a consideration of all the circumstances warranted it.
In relation to somewhat different legislation, but also providing for preventative detention, this Court has repeatedly stated that the powers conferred “should be confined to very exceptional cases where the exercise of the power is demonstrably necessary”. In Lowndes v The Queen, the Court unanimously affirmed the approach of Hayne JA in the Court of Appeal of Victoria in R v Moffatt to the effect that, the power being exceptional, the exercise of the power could only be warranted by exceptional circumstances. This was also the approach taken in McGarry. It led the majority of this Court in that case to insist that full details of the offender’s past conduct should be provided to the sentencing judge under conditions that afforded the person affected a proper opportunity to meet the prosecution’s case…
The respondent argued that these earlier cases were distinguishable. It is true that the Habitual Criminals Act and the legislation considered in the authorities just mentioned, other than White, are different. The Habitual Criminals Act does not provide for indefinite detention. It provides for concurrent and not consecutive sentences. It is enlivened by different considerations. However, what is common is the exceptional addition to the punishment normal to proved offences; the consequent risk of disproportion between the immediate crime and its punishment; and the added punishment “for the purpose of extending the protection of society from the recidivism of the offender.”
The foregoing are the considerations that led in Chester v The Queen, Thompson v The Queen, Lowndes and McGarry to this Court’s insistence upon serious, individual and scrupulous attention by the judiciary in every case where such exceptional legislation is invoked. Those considerations led me in Thompson to say:
Where there was any possibility that an order of indefinite imprisonment might be made, it was essential that the procedures observed should be regular and scrupulously thorough and that the materials, including the pre-sentence reports, should be as adequate and complete as fairness to the prisoner required.
[Footnotes omitted. Emphasis added.]
[15] Strong v The Queen (2005) 224 CLR 1, [78] - [81].
In Buckley v The Queen, the High Court was considering an indefinite sentence imposed under the Penalties and Sentences Act 1992 (Qld). The Court observed:[16]
We are not presently concerned with a case, such as Chester v The Queen, or McGarry v The Queen, where the offending would have attracted a finite or nominal sentence in the order of about three or four years. Nor are we concerned with a case where the available maximum penalty was plainly inadequate to serve a necessary protective purpose. On any view of the matter the appellant was facing a long sentence. Even so, it is important to bear in mind what was said in Chester and McGarry about the imposition of an indefinite sentence. Such a sentence involves a departure from the fundamental principle of proportionality. The statute assumes that there may be cases in which such a departure is justified by the need to protect society against serious physical harm; but a judge who takes that step must act upon cogent evidence, with a clear appreciation of the exceptional nature of the course that is being taken. Furthermore, as was pointed out in McGarry, the assessment of risk required by the statute may involve temporal issues requiring careful examination.
[Footnotes omitted.]
[16] [2006] HCA 7, [6].
Unlike habitual offender legislation, a declaration under s 20B does not result in indefinite detention. However, as Kirby J observed in Strong and the High Court observed in Buckley, habitual offender legislation and legislation such as s 20B share the fundamental feature of departing from the common law principle of proportionality between punishment and offending. It is this feature which requires that the utmost care be taken in the exercise of such discretions.
In the Second Reading Speech, the Attorney-General said:[17]
A sentencing court is given the authority to make a declaration that an offender is a serious repeat offender. The reason for the declaration is that it is appropriate to do so for protection of the public. It should be noted that the authority is discretionary. The court is not compelled to invoke it only because the threshold is reached.
[17] House of Assembly, 19 February 2003, Hansard SA 2323 (The Hon. M.J. Atkinson).
In R v Williams, Sulan J considered the matters relevant to the making of a s 20B declaration:[18]
The making of a declaration pursuant to s 20B 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 the defendant and his or her prospects of rehabilitation, the time which has elapsed between repeat offences, the likelihood of further re-offending and the nature of offending, having regard to the protection of the community.
[18] R v Williams [2006] SASC 377, [71].
In R v P, A; P, A v Police, this Court considered a declaration that a person was a recidivist young offender under s 20C. The consequences of such a declaration are similar to that under s 20B, although they only apply while the person remains a youth. White J made the following observations:[19]
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.
[Footnote omitted.]
[19] R v P, A ; P, A v Police [2013] SASCFC 3, [82].
In R v Jackamarra, Nicholson J quoted from R v Williams and R v P, A; P, A v Police and said:[20]
With respect, I agree with the observations of both Sulan J and White J. In particular, I agree that only in rare cases will a court be justified in departing from the recognised principle of proportionality and that a declaration under s 20B should be made only on cogent evidence that the history of offending of the person in question warrants a particularly severe sentence in order to protect the community. I also agree that a judge making the declaration needs to have a clear appreciation of the exceptional nature of the course which is being undertaken…
[20] R v Jackamarra [2013] SASCFC 98, [101].
We turn to consider the declaration made by the sentencing Judge in this case. In his remarks, the Judge said:
The prosecutor has applied for a declaration pursuant to s 20B of the Criminal Law (Sentencing) Act that you are a serious repeat offender.
The convictions for which you must be sentenced are all serious sexual offences against a person under the age of 14. Accordingly, s 20B(b) is enlivened. Your offending involved three different victims who were all under the age of 14. In the case of A, there was a course of conduct over several years. Overall, the conduct spans more than a decade.
Taken together, those considerations require that a declaration be made pursuant to s 20B that you are a serious repeat offender. I have considered the consequences of the declaration. I use my direction [sic] against imposing a sentence that is not proportionate to the offence. However, I must fix a non-parole period which is at least four-fifths of the length of the sentence.
Section 9 of the Act requires a court sentencing a defendant present in court to state its reasons for imposing the sentence and explain the legal effect and obligations of the sentence to the defendant.
The extent of reasons necessarily will depend upon the nature of the decision being made. As outlined above, a declaration that a person is a serious repeat offender is an exceptional order, allowing for departure from the basic principle of proportionality between the crime committed and its punishment. The authorities are clear that such a declaration requires careful consideration and scrupulous attention to materials provided.
The sentencing Judge noted the convictions which caused the s 20B discretion to be enlivened. He said that there were three victims and that the offending spanned more than a decade. He then made the declaration. These reasons were inadequate.
The Judge failed to give reasons why what has been described as exceptional legislation should be invoked. He made no response to the question why, in this case, there should be a severe sentence carrying with it the requirement that the defendant is subject to a non-parole period four-fifths of the head sentence for these offences and any serious offence committed at any time in the future.
The offences for which the defendant has been convicted are very serious offences against young girls. In each case, the defendant abused his position of trust as a relative or friend of the victims or their parents.
The two counts of indecent assault relating to the complainant ARF occurred around 2001. The offence of persistent sexual exploitation of a child was particularly serious, since it involved a course of conduct spanning some years. That conduct ended at the end of 2002. Between 2007 and 2009 the defendant touched an 11 year old’s inner thigh, and then about two years later touched that girl’s breast. The fact the defendant has been offending over such a long period of time tends to suggest that the defendant will have difficultly rehabilitating. Weighed against this is the fact that the defendant’s offending has been moderating in seriousness over the period. There is no evidence of offending between 2002 and 2007. Nor is there any evidence of offending between 2009 and the defendant’s sentencing on 29 June 2012. It is significant that since 2002 the defendant appears to have been offending less regularly.
The defendant appeared before the sentencing Court having had no previous convictions for sexual offences. As the second report of Mr Balfour states, when the defendant observed his trial, he perceived the trauma for which he was responsible. He overcame his denial of the offending. He pleaded guilty to the remaining charges. This demonstrates his contrition, a factor which is of course significant in assessing his prospects for rehabilitation.
The defendant has an intellectual disability which was undiagnosed until he met with Mr Balfour. This has caused severe disadvantage to him since he has not had access to rehabilitation services. Now that his condition is known, he can be provided with assistance which should reduce the risk of him reoffending.
Mr Balfour’s second report notes that the defendant is not exclusively attracted to children, and has the support of his partner of 11 years. His more general criminogenic profile is in the low range of risk. The psychological problems associated with his offending would respond well to supervision and treatment.
There was insufficient cogent evidence for the sentencing Judge to conclude that the defendant’s history of offending warrants the imposition of a disproportionate sentence in order to protect the community. The protection of the community would be better served by having the defendant rehabilitated than by requiring him to serve an extended period in custody.
The consequences of the declaration were twofold. First, the Judge was required to impose a non parole period of four fifths of the head sentence. Before the declaration, the Judge had an unfettered discretion in fixing a non parole period. Secondly, it removes the need for proportionality in sentencing. Thus the only practical significance of the declaration was that it bound future sentencing courts by requiring them to impose non-parole periods for serious offences at at least four fifths of the head sentence, and by permitting future courts to impose sentences for serious offences beyond what is proportionate to the offending.
The procedure adopted by the Judge demonstrates a misapplication of the discretion in s 20B(3)(b). That section provides that the declaration may be made if 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 Judge failed to address the threshold question of the requirement to protect the community. The opinion of Mr Balfour, which we accept, is that, with adequate management, the appellant has reasonable prospects of rehabilitation. Some years have passed since he last offended. That provides some evidence from which the Court may have confidence that he will not re-offend.
The consequences of being declared a serious repeat offender stay with a person for life. In R v P, A; P, A v Police the declaration under s 20C no longer had any practical effect since the defendant was no longer a youth. Yet White J held that the declaration should nevertheless be set aside since it could have adverse effects on the defendant’s future, especially if he was able to rehabilitate himself.[21] A s 20B declaration is itself a penalty and could itself be a barrier to rehabilitation.
[21] R v P, A v Police [2013] SASCFC3, [81].
In R v Jackamarra, Nicholson J observed that there is nothing in Division 2A to indicate that a declaration once made must be reflected in the head sentence. However, he observed that the sentencing Judge in that case did not explain why an outcome similar to that achieved could not be reached in the absence of a s 20B declaration. The Judge had paid insufficient regard to the sentencing discretion already available to him, and did not explain why a declaration was necessary.[22]
[22] R v Jackamarra [2013] SASCFC 98, [117], [121].
In exercising the court’s discretion under s 20B, a judge must have regard to the consequences which flow from such a declaration. The Judge did not address this issue. This is a case in which there are good reasons to impose a non‑parole period which is less than might ordinarily be applied. The appellant requires supervision upon his release. A lengthy period of supervision will be of benefit to him and provide a degree of protection to the community.
For the reasons expressed, the Judge’s discretion in making a declaration miscarried. The declaration is set aside.
Resentence
For the offences relating to ARS, the Judge sentenced the defendant to six months’ imprisonment for the first count of aggravated indecent assault, and three months’ imprisonment for the second count of aggravated indecent assault. For the offence of persistent sexual exploitation of a child, the Judge imposed a sentence of six years’ imprisonment, reduced from eight years on account of the defendant’s guilty plea. For the offences relating to ARF, the Judge imposed a sentence of 12 months’ imprisonment for the first count of indecent assault, and 12 months’ imprisonment for the second count of indecent assault. Each count was reduced from 16 months’ imprisonment on account of the defendant’s guilty pleas. The Judge ordered the sentences to be served cumulatively, resulting in a head sentence of eight years and nine months’ imprisonment. The Judge was required by s 20B of the Act to impose a non parole period of at least four-fifths of the head sentence. The Judge set a non parole period of seven years’ imprisonment.
In R v Sanders, Gray and Vanstone JJ each held that in sentencing there is an inextricable link between a head sentence and non parole period imposed and a declaration under s 20B, such that an error in the sentence calls for a reconsideration of the declaration.[23] The converse, particularly in light of s 20B(4)(b), is also true.
[23] R v Saunders [2011] SASCFC 37, [46] (Gray J); [73] (Vanstone J); cf [117] – [119] (White J).
We have considered the head sentences imposed by the sentencing Judge. Counsel for the defendant submits on appeal that the sentences imposed were manifestly excessive. The offences are serious. The offence of persistent sexual exploitation of a child is especially serious.
A sentencing judge has a broad discretion as to how she or he tailors a sentence to the offending and offender involved. For example, in R v Scobie[24] the defendant was an Indigenous man with a longstanding alcohol dependency. In 1988 he committed abduction and indecent assault of a child. He also pleaded guilty to assault with intent to rape. In 1999 and 2000 he engaged in further, less serious sexual offending against children. A paedophile restraining order was made. The defendant breached that order and also pleaded guilty to larceny and exhibiting indecent material to a minor. The Director made an application for indefinite detention pursuant to s 23 of the Sentencing Act. Gray J refused that application. The defendant was released on bail, and over 21 months was monitored. He responded positively. At the end of that period the defendant was released without conviction on a bond of three years containing conditions for ongoing treatment and rehabilitation. The approach of the Judge in Scobie demonstrates that the Court has a wide discretion, and that there can be solutions other than imposing lengthy custodial terms of imprisonment.
[24] R v Scobie (2003) 85 SASR 77.
In the recent decision of Bugmy v The Queen,[25] the High Court (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) observed that the effects of profound childhood deprivation and an offender’s mental condition or intellectual functioning may moderate the weight which would otherwise be given to punishment and general and personal deterrence. Other factors, including rehabilitation and supervision other than by incarceration, may assume greater relevance in determining the appropriate sentence. These factors must be weighed against the objective seriousness of the offence, the protection of the community and the effect the conduct has had upon the victim or victims. We have had regard to these factors and the need to achieve an appropriate balance in determining the sentence and non-parole period in this case.
[25] [2013] HCA 37. See also Munda v The State of Western Australia [2013] HCA 38, [43]-[60].
As Mr Balfour states, the defendant is motivated and ready to participate in rehabilitation. Overall, his offending has become less regular and less serious over time. He has been diagnosed with an intellectual disability, treatment for which should assist him in coping and avoiding offending behaviours. He has the support of his partner. The fear of incarceration will serve as a significant deterrent. It is not known whether the defendant has access to sex offender rehabilitation programs in prison. What is clear is that he will have immediate access to treatment programs at Owenia House on release.
In the circumstances of this offending, for the offences upon ARF we impose one sentence, pursuant to s 18A of the Sentencing Act, of 12 months’ imprisonment, reduced from 16 months on account of the defendant’s plea of guilty.
For the offence of persistent exploitation of a child, we impose the same sentence of six years’ imprisonment as imposed by the Judge.
For the offences of aggravated indecent assault of ARS heard before the first Judge, we impose the same sentences imposed by the Judge of six months’ and three months’ imprisonment. The sentences of 12 months, six years, six months and three months should be cumulative, making a total of seven years and nine months’ imprisonment.
We fix a non-parole period of three years and six months, which is far less than might ordinarily be imposed. In so doing, we have regard to the defendant’s background, his psychological profile and our opinion that he has excellent prospects of rehabilitation. We also consider a long period on parole under supervision is in the interests of the community and the defendant.
Conclusion
We allow the appeal. The sentence in the District Court is set aside. We decline to make a declaration that the defendant is a serious repeat offender. In accordance with these reasons, the defendant is sentenced to terms of imprisonment totalling seven years and nine months. We fix a non-parole period of three years and six months’ imprisonment. The sentence and non-parole period are backdated to commence on 29 June 2012.
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