R v Malone
[2010] SADC 124
•30 September 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MALONE
[2010] SADC 124
Reasons for Ruling of His Honour Judge Tilmouth
30 September 2010
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
The defendant, pleaded guilty to two counts of Unlawful Sexual Intercourse with a person under 17 years contrary to s 49(3) Criminal Law Consolidation Act, 1935. Prior to sentence, the prosecution sought a declaration that the defendant be declared a serious repeat offender pursuant to s 20B of the Criminal Law (Sentencing) Act 1988 (SA). The defendant was in September 2007 convicted of seven counts of having sexual intercourse with a person between 14 and 17 years of age and in 1999 on two counts of sexual assault and one count of sexual intercourse with e female between the age of 10 and 14.
Held: (1) The defendant is liable to be declared a serious repeat offender in light of his antecedent history, having committed on at least three separate occasions a serious offence as defined, for which he received an unsuspended sentence of imprisonment.
(2) Although the 1999 convictions were not shown to be "serious offences" or "serious sexual offences", they were none-the-less relevant to the "history of offending" in determining whether to make such a declaration.
(3) In this instance a particularly severe sentence is warranted in order to protect the community, one that sets a non-parole period at four-fifths of the proposed head sentence.
Criminal Law (Sentencing) Act 1988 (SA) s 20A, s 20B; Statutes Amendment / Sentencing of Sexual Offender Act No 21 of 2005; Statutes Amendment (Recidivist Young Offender and Youth Parole Board) Act 2009 s 20C; White v The Queen (1967) 122 CCR 467; Strong v The Queen (2005) 224 CLR 1; Shrestha v The Queen (1991) 173 CLR 48; Mallett v Police [2007] SASC 102, referred to.
R v Williams (2006) SASR 226, (2006) 168 A Crim R 209, [2006] SASC 377, applied.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, discussed.
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND CLAUSES - PARTICULAR ACTS AND ORDINANCES - SOUTH AUSTRALIA
Held: (1) Section 32A of the Criminal Law (Sentencing) Act relates to "prescribed" non-parole periods and as such has no application to s 20B declarations.
(2) The court is not obliged by s 32 to fix a minimum four-fifths non-parole period on the total or aggregate sentence the prisoner is liable to serve; that requirement is confined to the sentence imposed for "serious repeat" offences, as defined in s 20A.
Criminal Law (Sentencing) Act 1988 (SA) s 32A; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; R v Cowburn (1994) 74 A Crim R 385; R v Colella (1991) 56 SASR 95; Attorney-General v District Court of Auckland [2009] 1 NZLR 600, referred to.
Coco v The Queen (1994) 179 CLR 427; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; Al-Kateb v Godwin (2004) 219 CLR 562; Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; CTM v The Queen (2008) 236 CLR 440; (2008) 247 ALR 1; (2008) 82 ALJR 978; (2008) 185 A Crim R 188; Bropho v State of Western Australia (1990) 171 CLR 1; Coco v The Queen (1994) 179 CLR 427; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Beckwith v The Queen (1976) 135 CLR 569; Waugh v Kippen (1986) 160 CLR 156, applied.
R v Ironside (2009) 104 SASR 54; 195 A Crim R 483; R v Randall-Smith & Davi (2008) 100 SASR 326, discussed.
WORDS AND PHRASES CONSIDERED/DEFINED
""Serious repeat offender""
R v MALONE
[2010] SADC 124The proceedings
The defendant is before the Court for sentence today, on two counts of unlawful sexual intercourse with a person under 17 years. He was committed for sentence by the Magistrates Court. Each carries a maximum penalty of 10 years imprisonment.
Both offences were committed on 5 February 2010, the day after the defendant was released on parole, under a sentence imposed by another judge of this court in September 2007. On seven counts of having sexual intercourse with a female aged between 14 and 17 years, he was sentenced to a single four year term of imprisonment, with a non-parole period of two years and six months, backdated to 11 December 2006. Mr Malone was initially released on parole on 11 June 2009 upon the expiration of the non-parole period, and returned to custody on a parole board warrant, on 19 August 2009 for breach of a designated condition involving the use of cannabis.
The defendant was also convicted in May 1999 by the Liverpool District Court in the State of New South Wales, on two counts of sexual assault and one of sexual intercourse with a female between the age of 10 and 14 years. Sentences of imprisonment were imposed, as detailed later. Because of this history of offending, the prosecutor has applied for an order declaring the defendant a “serious repeat offender”, within the meaning of s 20B of the Criminal Law (Sentencing) Act 1988 (SA).[1]
[1] Hereinafter the Sentencing Act
Speaking in general terms for the moment, the effect of such declarations is to place an obligation on the sentencing court to consider whether or not the offender should be severely punished in order to protect the Community. If the court forms that view, it is then relieved of the common law obligation to pass a proportionate sentence, and may proceed to fix a non-parole period which is at least four-fifths of the head sentence.
The legislative context
The application is brought under s 20B of the Sentencing Act. So far as relevant, ss 20A and 20B currently provide as follows:
Division 2A—Serious repeat adult offenders and recidivist young offenders
20A—Interpretation and application
(1) In this Division—
…
serious offence means—
…
(b) one of the following offences:
(i) an offence under Part 3 of the Criminal Law Consolidation Act 1935;
...
(d) an offence against the law of another State or a Territory corresponding to an offence referred to in paragraph (a).
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.
Legislation facilitating the making of such declarations first came into effect from 27 July 2003. Later amendments with effect from 12 August 2005, were made pursuant to the Statutes Amendment (Sentencing of Sexual Offenders) Act 2005, and again with effect from 5 November 2009, when the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009, came into operation. The latter inserted a new s 20C. This permitted a court for the first time to make a “recidivist young offender” declaration. For the most part, the 2009 amendments removed the categories of offences to which s 20B originally applied into s 20A, so that it controlled both s 20B and s 20C in that respect. Both counsel agree there are no material changes so far as this case is concerned, and so did not address to the question of which historical version of the legislation applies. For convenience sake the most recent statutory regime applicable when the two subject offences were committed and hence when the application by the Director of Public Prosecutions for a declaration pursuant to s 20B was made, is reproduced above.[2]
[2] The corresponding provisions in the pre-2009 amendments are cross-referenced hereafter in square brackets, when applicable.
The prosecution initially relied on both s 20B(1)(a) and (b), that is to say the commission of at least three separate “serious offences” and the commission of at least two separate serious sexual offences. Part 3 of the Criminal Law Consolidation Act 1935 (SA),[3] as referred to in the definition of a “serious offence” contained in s 20A(1)(b)(i), span ss 11-83 of the CLCA and thus include “rape and other sexual offences” (ss 46-61 inclusive). Likewise, the sections specifically nominated in ss 20A(1) in the definition of “serious sexual offence”, also embrace the two counts of unlawful sexual intercourse the defendant now faces, against s 49(3) of the CLCA. Additionally these were the same offences against the same section, for which he was sentenced in 2007.[4] The maximum penalty for unlawful sexual intercourse is now and was then, 10 years imprisonment: s 49(3) CLCA.
[3] Hereinafter the CLCA
[4] R v Ricky John Malone DCCRM-07-221, 19 September 2007
Is the declaration power enlivened?
It can be seen the foundation for an application for a declaration that a person is a “serious repeat offender”, depends upon the conviction for offences to which the section applies on three separate occasions: s 20B(1)(a)(i) and (ii), and/or upon conviction for at least two separate offences of a “serious sexual offence” against a person or persons under the age of 14 years: s 20B(1)(b)(i) and (ii). It has been held that convictions which enliven the power, must have been committed on or after the date when the legislation first came into effect, however offences committed before then may be taken into consideration at the later stage of determining whether a declaration is warranted in a given case: R v Curtis (No.2).[5]
[5] (2009) 105 SASR 411; [2009] SASC 350 at [49-51]
The seven convictions in this court in September 2007, clearly come within the description of “serious offences” to which the section applies, and because an immediate term of imprisonment was imposed: ss 20A(3), [20B(2)(b)]. They also satisfy the repetition requirement “of at least 2 separate occasions” because, as the court file reveals, the first two counts were committed between 9 and 14 October 2006 with respect to one complainant, and the remaining four counts were committed between 26 November and 8 December 2006, with respect to another complainant: White v The Queen.[6] As neither complainant was “under the age of 14 years” at that time as required by s 20B(1)(b)(i), the definition of “serious sexual offence” is not however fulfilled.
[6] (1968) 122 CCR 467 at 475-477
The prosecution then falls back onto s 20B(1)(a)(i), the commission of at least three separate serious offences to which the section applies. As we have seen this definition encompasses unlawful sexual intercourse, so that the 2007 convictions more than satisfy those requirements.
As to the New South Wales offences, the prosecution properly concede these could not be shown to be “an offence against the law of another State or Territory that would, if committed in this State, be a serious offence”: s 20A(1)(d) [s 20B(2)(a)(ii)]. Furthermore, the record is unclear as to whether these offences attracted a maximum penalty of at least five years imprisonment as required by s 20A(2), or whether immediate sentences of imprisonment were imposed, as required by s 20A(3)(a) [s 20B(2)(b)(i)] of the Sentencing Act.
The discretion to make a declaration
The scope of the discretion vested by s 20B once engaged, was reviewed by two Supreme Court Judges. In the first Sulan J concluded in R v Williams:[7]
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: see Hoare v The Queen. 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.
[7] (2006) 96 SASR 226, (2006) 168 A Crim R 209, [2006] SASC 377 at [68]
The second is that of Gray J in R v Curtis (No 2).[8]After quoting the above passage with approval, his Honour proceeded to observe:
The terms of the section are unambiguous – if the statutory preconditions are strictly met, and if the court is of the opinion that the protection of the community warrants a longer than proportionate sentence, there is an absolute discretion in fixing that sentence. It is my view that the discretion is unfettered. It is to be observed that the power to order a declaration is only to be utilised if the court is of the opinion that a particularly severe sentence is necessary in order to protect the community from the offender. Although it may only be in rare cases that such a severe sentence is warranted, the discretion is not so confined. Once the matters in the section are satisfied, the court is not bound to ensure that the principle of proportionality are complied with and may fix the sentence it considers appropriate.
[8] (2009) 105 SASR 411, [2009] SASC 350 at [41]
The consequences of such a declaration, as their Honours acknowledge, can be profound. Once made, it requires the court to impose a sentence which in the first place is not controlled by the long-standing principle of proportionality recognised by the highest common law authority,[9] and secondly the sentencing court may set a non-parole period at least four-fifths of the head sentence: s 20B(4) Sentencing Act. I would add that the mandatory requirement also has the capacity to impinge upon another well established common law principle of sentencing, the totality principle, as articulated by the High Court in a series of decisions.[10]
[9] Hoare v The Queen, (1989) 167 CLR 348 at 354
[10] Mill v The Queen, (1988) 166 CLR 59 at 63; Postiglione v The Queen, (1997) 189 CLR 295, at 307-309 (McHugh J), 321-322 (Gummow J) and 340 (Kirby J) and Johnson v The Queen, (2004) 78 ALJR 616 at [18-22] (Gummow, Callinan, Heydon JJ)
Factors relevant to making declaration
It emerges from a review of the case law, that a number of (non-exhaustive) factors are relevant to the discretion to make such a declaration. These include (in no particular order) the number of prior offences, the seriousness of the triggering offences, the age of the defendant, the defendant’s prospects of rehabilitation, the time period between the repeat offences, the nature of the offending, the likelihood of re-offending,[11] the persistency and similarity of the offender history,[12] whether there is an established practice of living a life of crime,[13] and the lack of response or reform.[14]
[11] Incorporating the factors referred to by Sulan J in R v Williams above
[12] R v Tregaskis [1937] SASR 358 at 359
[13] R v White [1962] SASR 114 at 116
[14] R v White (1968) 122 CLR 467 at 470-472
Should the court make such a declaration?
Once the prerequisites to s 20B(1)(a) or (b) are enlivened, the court is directed to consider making a serious repeat offender declaration: s 20B(3)(a). A further prerequisite is the formation of the opinion that “the person’s history of offending warrants a particularly severe sentence in order to protect the community”: s 20B(3)(b). There is no reason to read down the expression “the person’s history of offending” to just the triggering offences. Accordingly, as mentioned earlier, the Liverpool District Court offences nonetheless come within the defendant’s “history of offending” for the purposes of s 20B(3)(b), even though they are not shown to be either “serious offences” or “serious sexual offences”, as defined.
The stated offences expose a persistent inclination to sexual interference of a serious nature over a protracted period of time, specifically with respect to young girls in a particularly narrow age band of between 14 and 16 years. The victim in this instance was just 14 years old. She was the daughter of a woman known to the defendant, who offered him temporary accommodation and support upon his release on parole, until he could organise more satisfactory accommodation. They invested their faith in him, which he immediately abused. The offences were opportunistic. The defendant secreted himself into the daughter’s bedroom around dawn. Whilst she was asleep he committed an act of digital penetration and an act of cunnilingus. Although the defendant made frank admissions to the police, he admitted knowing she was just 14 and knowing this was illegal.
The Parole Board cancelled parole on 19 January 2010 pursuant to s 73 of the Correctional Services Act, backdated to 12 January 2010. This had the effect of automatically cancelling his parole, so that he was no longer subject to a non-parole period. He entered quite early guilty pleas when committed for sentence in the Magistrates Court, on 14 April 2010. Mr Malone submitted to the allocotus on both charges on 17 May 2010 in the District Court, so that he is a person convicted of two serious offences as required by s 20B(3).
The preceding offences for which the defendant was released on parole, were quite similar in nature. The sentencing remarks reveal there were two complainants, three counts relating to a 16 year old. The four remaining counts, related to a 15 year old, who had turned 16 as of the last offence. Both were school friends of the defendant’s teenage son. The relationship with both complainants entailed sexual intercourse. He commenced the relationship with the second girl within weeks of being told to end the first, and to make matters worse, after being warned by the police that it was illegal. The Judge described the defendant as of limited intelligence, seriously immature and having very limited insight into his offending. Even so his Honour found he “knew perfectly well [he was] doing wrong”. He noted the need for extensive treatment to prevent offending again, and would have imposed a starting point head sentence of six years, but for the early pleas of guilty.
The Liverpool District Court offences involved convictions and sentence on two counts of sexual assault, for which the defendant was sentenced to three months and 12 months imprisonment respectively. More significantly, a further count of sexual intercourse with a person between 10 and 14 years, resulted in imprisonment for 18 months, effective from 14 May 1999 (the day of sentence). The antecedent report ambiguously notes “to be released subject to supervision” with respect to this charge. Thus as noted earlier, it is quite unclear whether these sentences were cumulative or concurrent, or were equivalent to a suspended sentence in this State. Unfortunately the NSW District Court has destroyed the records.
It is not disputed however that these sexual assaults were committed between March and May 1986 against his step-sister, when the defendant was 20 and she was 14. The charged acts encompassed sexual intercourse with her. The remaining count of unlawful sexual intercourse occurred between June 1995 and June 1996 when the defendant was 30 years of age. His 13 year old victim was his partner’s sister, who was said to be developmentally delayed. They had vaginal, digital and penile intercourse. Hence the accused comes before the court having 12 convictions by now for analogous and distinctly similar offences.
Counsel for Mr Malone made a detailed submission to the effect that the circumstances in which the present offences occurred, was the result of the failure to provide adequate supervision and accommodation after release. Relying on a psychiatric report, this is said to have sprung from a perceived lack of support, coupled with the trauma of being taken suddenly from a highly regulated prison environment to an unstructured one. The report suggests this may have been an act of “self-sabotage”.
It is not difficult to appreciate that prisoners spending lengthy terms in custody serving sentences, have great difficulty in adjusting to life during the early stages of their release into the community. It is however not so easy to appreciate that this was such a case. This man was having regular telephone contact with the mother of this girl beforehand. They had a previous relationship some years earlier and remained friends. She generously offered him temporary accommodation and assistance, which could only be seen as providing a supportive environment. In many ways this was a better situation than that proposed. Still further, even accepting there might have been a degree of disinhibition, it is even more difficult to see why this specific type of offence occurred, apart from the inability to resist the temptation opportunity presented.
The most serious aspect of the matter is the fact that these offences were committed the day after this man was released on parole for distinctly similar offences. This is compounded by the fact that he had undertaken courses whilst in the prison system at Mt Gambier gaol, involving a sexual behaviour clinic and intervention program. Despite this the defendant remains assessed as a moderate to high risk of reoffending in like manner.
Assessment of the merits
It may be readily accepted that declarations of the kind now sought should be rarely made. It is no small matter to expose a person to a harsh sentencing regime, which both brushes aside the cherished principle of proportionality and potentially mandates a higher than usual non-parole period. Such weighty considerations serve only to disincline the court to make declarations, except in compelling circumstances and except when the conclusion is firmly formed, on a sound footing, that the history of offending demonstrably warrants a particularly severe sentence in order to protect the community: Strong v The Queen.[15]
[15] (2005) 224 CLR 1 at [79]
In this instance the court is satisfied for the reasons already given, that the power to make a “serious repeat offender” declaration is engaged, as the statutory preconditions erected by ss 20B(1)(a) are satisfied. In light of the defendant’s offender history as detailed above, and given the high degree of similarity between the subject offences and the antecedent history, together with the fact that at this point in the inquiry the focus is on the protection of the community, the court is driven to the opinion that he is of such a high risk of repeat offending of a like nature, that a particularly stern sanction is warranted in order to protect the community.
What then of the rider to s 20B(3)(b) “… should make such a declaration”? In R v Williams Sulan J considered the making of an order remained discretionary despite these words.[16] Gray J in R v Curtis (No 2), took a similar view. His Honour held: [17]
[41] The terms of the section are unambiguous – if the statutory preconditions are strictly met, and if the court is of the opinion that the protection of the community warrants a longer than proportionate sentence, there is an absolute discretion in fixing that sentence. It is my view that the discretion is unfettered. It is to be observed that the power to order a declaration is only to be utilised if the court is of the opinion that a particularly severe sentence is necessary in order to protect the community from the offender. Although it may only be in rare cases that such a severe sentence is warranted, the discretion is not so confined. Once the matters in the section are satisfied, the court is not bound to ensure that the principle of proportionality are complied with and may fix the sentence it considers appropriate.
[16] (2006) 96 SASR 226; [2006] SASR 377 at [71]
[17] (2009) 105 SASR 411; [2009] SASC 350
Having weighed the competing considerations, I have formed the distinct view that this is proper and compelling case to make a declaration. The defendant has committed startling similar offences over a prolonged period of time. He exhibits a distinct propensity to sexually interfere with young girls, any time the opportunity presents. The means of access is similar, through relatives or friends of young girls he has first garnered the trust of. He professes to a degree of rehabilitation, and yet proved singularly unable to resist seeking sexual gratification on this occasion. Although subject to extensive and strict conditions of parole, the supervisory regime was an abject failure. More significantly, the present offence occurred just after release on parole for precisely the same kind of offences.
Other considerations compounding in the same direction, are the serious nature of the offences, the number and persistence of repeat offences, the course of conduct they evince, the fact that five vulnerable children were abused, their relatively young age, his age (43 years as of the current offences, and 40 at the time of the 2007 convictions), the failure of rehabilitative measures and the high likelihood of further offending of this very nature. The court therefore declares Mr Malone to be a “serious repeat offender” for the purposes of s 20B of the Sentencing Act, having formed the opinion that his offender history warrants such an order.
In the course of the sentencing remarks just delivered, the court came to the conclusion that an appropriate starting point head sentence for these two offences, was one single term of two years and eight months, reduced from four years on account of the very early pleas of guilty and the frank and immediate confession. It does not however automatically follow that the court is obliged to set a non-parole period of no less than four-fifths of that head sentence. In this particular case a material consideration is the protection of the community from a sexual predator, as the defendant clearly is. Because of the high risk of re-offending and because of the sustained course of conduct the repetition of those offences represents, the court takes the view that it is entirely appropriate to fix the mandatory minimum non-parole period, but no more. This translates to two years one month and eighteen days in this case. I am satisfied that after serving that period, the focus should shift from the point of view of the protection of the public, to strict supervision and control, ultimately with a view to reform.
The application of s 32A of the Sentencing Act?
Although defence counsel opposes the making of a declaration altogether, he submitted in the alternative that the court should exercise the power to fix a shorter non-parole period, as facilitated by s 32A(2)(b) of the Sentencing Act. As the prosecution contends s 32A has no application to s 20B declarations, it becomes necessary to set out s 32A in its entirety in order to appreciate the substance of the competing submissions.
First inserted by the 2007 amendments, this section was unaffected by those of 2009. It reads:
32A—Mandatory minimum non-parole periods and proportionality
(1) If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies.
(2) In fixing a non-parole period in respect of an offence for which a mandatory minimum non‑parole period is prescribed, the court may—
(a) if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b) if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3) In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a) the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;
(b) if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;
(c) the degree to which the offender has co‑operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.
(4) This section applies whether a mandatory minimum non‑parole period is prescribed under this Act or some other Act
There are a number of attributes of s 32A that bear teasing out as they contrast with s 20B. First, as we have seen, s 20B vests a discretion in making an order even once its terms are fully satisfied, whereas s 32A for practicable purposes mandates the non-parole period, as and when prescribed. Second, s 20B fixes the period to “at least four-fifths the length of the sentence”, whereas s 32A fixes the non-parole periods specifically designated in s 32, namely:
·Section 32(5)(ab) - 20 years on life head sentences;
·Section 32(5)(ba) – four-fifths the length of the head sentence for a “serious offence against the person” as defined in s 32(2)(c)
Thirdly, s 20B(4)(b) prevents any reduction of the designated non-parole period, whereas s 32A(2)(b) plainly does, upon the court being satisfied “special reason” exists for doing so. Fourthly, there is no direct reference in s 32A to see 20B, and there is no indirect reference serving to pick it up. There is in fact no reference in s 20B to “prescribed” non-parole periods at all. This suggests in itself, that prescribed non-parole periods are meant to be different from those to which s 20B(4)(b) was intended to apply. The fact that s 32A is contained in a Part and Division quite separate from ss 20A, B, & C, is a further consideration supporting that conclusion.
Fifthly, the requirements of s 20B(4) are quite different from the indicia referred to in s 32A(2)(a)&(b) and for that matter might be seen to be antithetic to them. It could hardly ever be the case that a court having formed the view a declaration is called for on account of offender history and the consequent need to protect the community, that a mere plea of guilty, or the fact of co-operation with the investigation could be so persuasive as to negate or undermine that conclusion. Even though s 32A(4) makes it clear that it applies to “prescribed” mandatory minimum non-parole periods from any statutory source, the fact remains that declarations for serious repeat offenders under Part 2, Division 2A are not so prescribed.[18]
[18] Prosecution counsel was unable to identify any minimum prescribed non-parole period apart from those specified in s 32(5).
For these combined reasons, the conclusion must be reached that s 32A has no application to s 20B declarations. Even if it did, the facts of this case render it inappropriate to fix a shorter non-parole period, for the very reasons that dictated the making of a declaration in the first place. No sufficient reason is apparent for so doing, for a repeat offender such as the defendant. It may be acknowledged that the early plea of guilty and the frank admissions engage s 32A(3)(b) & (c), however those considerations are significantly outweighed by the overarching need to protect the community.
The requirement to fix a single non-parole period
Regrettably this is still not the end of the inquiry. As seen earlier, the Parole Board returned the defendant to custody on a parole warrant with effect from 12 January 2010. Mr Malone currently remains in custody serving the unexpired balance of the term imposed in the District Court for the earlier offences. This was 11 months and six days commencing from 12 January 2010, due to expire on 15 December 2010.
Under s 32(1) of the Sentencing Act, as the defendant’s parole period has expired leaving him without a non-parole period, the court must fix a single non-parole period with respect to the aggregate head sentence, namely three years seven months and six days. Section 32(1) provides (so far as relevant to this case):
32—Duty of court to fix or extend non-parole periods
(1) Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
(a)if the person is not subject to an existing non-parole period—fix a non-parole period; or
(b)if the person is subject to an existing non-parole period—review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court);
It is here that another question of construction arises. The prosecution submit the combined effect of ss 20B and 32(1)(a) of the Sentencing Act, is that a single non-parole period of four-fifths must be fixed with respect to the total aggregate head sentence the defendant is now liable to serve. If correct that would be no less than four-fifths of three years seven months and six days. The same would apply, so prosecution counsel argued, if the earlier sentence was suspended, so that applying s 32(1)(b), the non-parole period would equally have to be the same. The defence submits the minimum four-fifths requirement is limited to the “serious offences” for which the current sentence is imposed, the requirements of s 32(1) standing independent of that exercise.
It would assist to understand the issue if ss 20B(3) & (4) of the Sentencing Act was reproduced again;
(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 structure and wording of the sections is significant. The offence or offences to which ss 20B(3) and (4) apply, can only be the “serious offences” for which the court has just convicted a defendant and sentence is about to be pronounced. That is the two counts of unlawful sexual intercourse in this instance. Equally, the potential non-parole period of four-fifths contemplated by s 20B(4)(b), is confined to the sentences for the designated serious offence.
The submission for the Director seems to be that as but one single seamless non-parole period is completed, a court must fix a non-parole period of four-fifths the aggregate head sentence under s 32. The defence on the other hand contend there is no practical difficulty in complying with the mandates of s 20B(4), and then proceeding to discharge the s 32(1) function. This it argues can be achieved by first arriving at the s 20B(4) non-parole period, in effect notionally, and by then proceeding to undertake the review under 32(1) according to established principle. To do otherwise it was asserted, would be to produce absurd, unjust and unintended results.
Reconciling ss 20B(4) and 32(1)
Section 20B was first introduced into the Sentencing Act by the Criminal Law (Sentencing)(Serious Repeat Offenders) Amendment Act No 23 2003, and came into force on 27 July 2003. Section 32 pre-dates this amendment, so much so that ss 32(1)(a) & (b) remain in their original form – s 32(1)(c) was added in 1992. Neither section specifically directs attention to the problem now faced – both are singularly silent on the question. This is suggestive of an intention by the Parliament to leave the process of fixing non-parole periods under s 32, unaffected by antecedent requirements to set minimum non-parole periods in a given case.
The submission for the DPP must be rejected for the following reasons. The first is a straight forward construction of s 32(1). If, as the Director contends, there is but one single non-parole period contemplated, then the situation is simply that the defendant is subject to a non-parole period already set under s 20B(4). That being so, s 32(1)(b) applies and the court needs do no more than review it thereunder.
However the Director contends it is s 32(1)(a) that applies in this instance. As a question of general principle, fixing a single non-parole period under s32(1) is not a simple mechanical exercise, but rather one calling for an appropriate exercise of judicial discretion: Shrestha v The Queen,[19] and Mallett v Police[20]. It would be reduced to that if the Director’s submission were to be accepted, and it would necessarily lead to the prisoner serving a higher non-parole period as a result: R v Stewart.[21] Further strength for this conclusion comes from s 32(5a) (inserted by Act of the Criminal Law (Sentencing) (Dangerous Offender) Amendment Act, no 27 of 2007 effective from 1 November 2007. This specifically extends the operation of prescribed statutory minimum non-parole periods when one single penalty for multiple offences is imposed, pursuant to s 18A of the Sentencing Act.
[19] (1991) 173 CLR 48 at 67-69 per Deane, Dawson & Toohey JJ
[20] [2007] SASC 102; BC200701899 at [22]
[21] (1984) 35 SASR 477
Potentially complex questions of construction arising from this provision, were raised and left unresolved in R v Dundovic.[22] That was a successful prosecution appeal against an inadequate sentence, on charges of aggravated causing death by dangerous driving (an high speed collision causing the death of another driver) contrary to s 19A(1) of the CLCA, and to an offence under s 19A(3) of the CLCA of driving a vehicle in a culpably negligent manner, or recklessly, or at a speed or in a manner dangerous to the public causing harm to a passenger. A problem of construction surfaced because the offence against s 19A(1), was a ‘serious offence against the person’ resulting in death, as defined by s 32(10)(d) of the Sentencing Act. As such it thereby attracted a prescribed mandatory minimum as noted earlier.
[22] (2008) 101 SASR 32; (2008) 255 LSJS 380; (2008) 184 A Crim R 525; [2008] SASC 136
This caused the Chief Justice to give attention to s32(5a) of the Sentencing Act:[23]
[23] Bleby and Anderson JJ concurring
[42] The present case appears to be affected also by s 32(5a) of the Sentencing Act, which provides:
32 Duty of court to fix or extend non-parole periods
…
(5a) If a person is sentenced under section 18A to the 1 penalty for a number of offences and a mandatory minimum non-parole period is prescribed in respect of the sentence for 1 or more of those offences, the non-parole period fixed in relation to the sentence imposed under that section must be at least the length of the prescribed mandatory minimum non-parole period.
The application of this provision to the present case is not straightforward. Does it require only that the non-parole period be at least four-fifths the length of the sentence that I would impose for the offence that attracts the mandatory minimum non-parole period? That is the offence against s 19A(1). Or does the provision refer to the total sentence imposed under s 18A? That includes the sentence for the offence against s 19A(3), which does not attract a mandatory minimum non-parole period. To so read it would work a hardship on the offender. It would require the non-parole period to be at least four-fifths of a total sentence under s 18A that includes a sentence in respect of offences that do not attract a mandatory minimum non-parole period.
[43]For the purposes of illustration only, I will assume that I should calculate the prescribed mandatory minimum non-parole period in relation to the sentence imposed in respect of the offence against s 19A(1). That sentence is 12 years less 15% for the plea of guilty. How is allowance to be made for time spent in custody? Does one make that deduction (for time spent in custody) from the main offence for which a sentence is to be imposed? That would mean that the mandatory minimum non-parole period is four-fifths of, on my calculations, nine years five months. So the mandatory minimum non-parole period in relation to the offence against s 19A(1) would be seven years six months. I have ignored fractions for these purposes. Or does one apportion the time spent in custody as between the two offences, and if so on what basis?
[44] These are some of the issues that will arise when the application of s 32(5a) arises in a case like this one. I return now to the decision in this case.
The court avoided these problems by constructing a sentence on the merits, satisfying s 32(5a) in any event.
Noticeably Parliament did not choose to expressly extend the operation of statutory minimum non-parole periods to require the court to impose them at the s 32 stage, as it might so easily have done in the 2007 package of amendments. It did add a new s 10(1a) of the Sentencing Act:
10(1a) However, a court, in determining sentence for an offence, must disregard any mandatory minimum non-parole period prescribed in respect of the sentence under this Act or another Act.
As pointed out in R v Ironside,[24] this section means a head sentence remains to be determined in the usual manner. I interpolate that it also means the court should not fix a combined non-parole period other than otherwise appropriate, in order to reduce or ameliorate the effect of a prescribed mandatory non-parole period. In short the second reason for rejecting the submission of Ms Attar, is simply on the basis of the natural and grammatical reading of the text of s 20B, within the wider statutory framework itself: Palgo Holdings Pty Ltd v Gowans.[25]
[24] (2009) 104 SASR 54; 195 A Crim R 483 at [32]
[25] (2005) 221 CLR 249 at [37]
A third is by resort to basic principle. As pointed out in R v Williams and R v Curtis (No2) cited above, s 20B has the effect of departing from the fundamental principle of proportionality,[26] and thus as Doyle CJ observed in Dundovic, to work hardship. It is trite law that express statutory authorisation is required for the abrogation, erosion or curtailment of fundamental rights, freedoms or immunities, such that a clear manifestation or indication must appear that the legislature has directed its attention to the question, and also that is has determined upon such abrogation, erosion or curtailment: Coco v The Queen,[27] Plaintiff S157/2002 v The Commonwealth of Australia,[28] Al-Kateb v Godwin,[29] Electrolux Home Products Pty Ltd v Australian Workers' Union,[30] and CTM v The Queen.[31]
[26] At [68] and [26] respectively
[27] (1994) 179 CLR 427 at 437
[28] (2003) 211 CLR 476 at 494 [37]
[29] (2004) 219 CLR 562 at 577 [19]
[30] (2004) 221 CLR 309 at 329 [20]-[21]
[31] (2008) 236 CLR 440; (2008) 247 ALR 1; (2008) 82 ALJR 978; (2008) 185 A Crim R 188 at [35] and [201]
Hence the courts should not impute to the legislature an intention to interfere with fundamental rights, unless such an intention is clearly manifested by unmistakable and unambiguous language: Bropho v State of Western Australia[32] and Coco v The Queen.[33] There is therefore a presumption against a Parliamentary intention to infringe such rights and freedoms: K-Generation Pty Ltd v Liquor Licensing Court.[34]
[32] (1990) 171 CLR 1 at 18
[33] (1994) 179 CLR 427 at 437
[34] (2009) 237 CLR 501 at [47] and the cases cited therein
At stake in this particular case are undoubtedly such rights. As demonstrated above, the Legislature remained silent on the question. It must follow that the necessary express statutory authorisation is wanting. It can be readily accepted there is an important and purposive public and social policy lying behind the “serious repeat offender” declaration process in the protection of society, which must be given effect to so far as consistent with the statutory language.[35] All the same, the conventional approach to the interpretation of penal statutes, is to employ the ordinary cannons of construction, and once applied, if the language of the statute remains ambiguous or doubtful, as it does in this instance, such ambiguity or doubt should be resolved in favour of the subject: Beckwith v The Queen,[36] and Waugh v Kippen.[37]
[35] R v Curtis (No2) (2009) 105 SASR 411, [2009] SASC 350, Acts Interpretation Act 1915 (SA) s 22(1)
[36] (1976)135 CLR 569 at 576
[37] (1986) 160 CLR 156 at 164–165
A fourth reason lies in another and yet quite distinct principle of statutory interpretation. The Director’s submission, as able and clear as it was, puts ss 20B and 32(1) of the Sentencing Act in conflict with each other, with the result that latter effectively controls the former. Whereas the rules of statutory construction affirmed by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority,[38] strive for conflicting statutory provisions to be reconciled so far as is possible. McHugh, Gummow, Kirby and Hayne JJ wrote in that case:
[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
[38] (1998) 194 CLR 355
Applying these principles to the provisions in hand, it is not difficult in the least to harmonise the two subject provisions, even accepting that s32(1) of the Sentencing Act “does not contemplate or provide for the accumulation of one non-parole period upon another”: R v Colella.[39] As Doyle CJ observed in R v Sevo,[40] there is a “distinction between indicative or notional sentences…and sentences actually imposed…”.
[39] (1991) 56 SASR 95 at 97
[40] (2006) 94 SASR 403 at [20]
If the serious repeat offender declaration is made, and should the court proceed to set a minimum non-parole period under s 20B(4) at four-fifths or higher, it can then simply proceed to discharge the balance of the statutory obligations provided for in s 32(1)(a), without doing violence to either. As Doyle CJ points out in R v Randall-Smith & Davi,[41] this kind of staged or tiered approach in the sentencing process, is neither unknown nor an infringement of basic sentencing principle. To paraphrase to the facts of this case “there is no harm in the judge identifying the number of years [or months] involved” in the s 20B(4) calculation, before turning to apply s 32(1). A staged process is in any case, one demanded by the very terms of s 32(1) itself.
[41] (2008) 100 SASR 326 at [22-24]
The final reason is procedural irregularity. Counsel for the defendant argued that to read the relevant provisions in the way contended by the prosecution, would be counter-productive, by limiting the scope for parole for defendants who were manifestly in need of supervision once they are released into the community. It would be much better for the protection of the community he argued, for such a person to be under supervision, for as long as possible. The logic of this submission may be accepted, however the legal consequence may not.
The fact that a higher non-parole period restricts the period of release available on parole, is simply a direct consequence of the legislation. The position in this respect is the same as noted by Crockett, Southwell and Vincent JJ in R v Cowburn:[42]
However, the fact that, it is penal legislation, and in parts, as we think, draconian, and that it sweeps away a long-established sentencing principle, does not enable the court to fly in the face of what appears to us to be the clear intention of Parliament. There is, we think, no ambiguity about that, and this is not a case where the clear words of a statute must be interpreted in a manner which is inconsistent with other manifestations of the intention of Parliament.
[42] (1994) 74 A Crim R 385 at 393
On the other hand, were the court to be constrained to readjust the aggregate sentence then being served according to the mandatory formula, that would effectively authorise an increase to a previous sentence, regularly set according to the proper sentencing practice. This is ordinarily a power reserved to the Court of Criminal Appeal: s 353(4) CLCA, that is to say this process would otherwise involve the court in embarking on an exercise akin to that required of the Court of Criminal Appeal: Attorney-General v District Court at Auckland.[43]
[43] .[2009] 1 NZLR 600 at [56
Conclusion and orders
It is for the above reasons the court declared the defendant a “serious repeat offender” within the meaning of s 20B of the Sentencing Act, and formed the opinion his history of offending warranted a particularly severe sentence in order to protect the community, pursuant to s 20B(3) & (4) thereof. And for the above reasons, the court declined to apply s 32A to the sentence and further declined to set a non-parole period that was four-fifths of the aggregate head sentence the prisoner was liable to serve at the time of sentence under s 32, choosing instead to apply the mandatory benchmark, confined to the “serious offences” for which the defendant stood convicted and virus to be sentenced.
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