R v PHANOS - [2015] SASCFC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v PHANOS
[2015] SASCFC 26
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone, The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Nicholson)
25 March 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - HABITUAL CRIMINALS - DISCRETION TO MAKE DECLARATION
Appeal against sentence.
This appeal concerns the construction and application of the judicial power to declare persons to be serious repeat offenders under Part 2 Division 2A of the Criminal Law (Sentencing) Act 1988 (SA).
The appellant pleaded guilty to trafficking in a controlled drug and related drug offences following a police search of his premises on 8 October 2012 and two further counts of trafficking in a controlled drug and related drug offences committed on 8 December 2012 while he was on bail.
The appellant had previously committed offences in September 1999, November 1999 and August 2004 comprising three serious drug offences within the meaning of section 20A of the Act. The appellant had no other relevant convictions between 2004 and 2012.
The sentencing Judge imposed one penalty for all offences of imprisonment for eight years and eight months, with a non-parole period of seven years and one month. The sentencing Judge declared the appellant to be a serious repeat offender pursuant to section 20B of the Criminal Law (Sentencing) Act 1988 (SA).
The appellant appeals against the sentence on the ground that the sentencing Judge erred by making a declaration that the appellant is a serious repeat offender, and consequentially that the non-parole period was manifestly excessive.
The appeal turns on whether the Judge erred in making the serious repeat offender declaration.
Held by Kourakis CJ, Peek, Blue and Nicholson JJ (Vanstone J dissenting) allowing the appeal:
1.       The power to declare an offender a serious repeat offender can only be exercised when the court forms the opinion that a particularly severe sentence is required in order to protect the community. A particularly severe sentence means a sentence of preventative detention that can only be justified by departing from the principle of proportionality or a sentence which includes a non-parole period higher than one which can be fixed within the discretion conferred by section 32 of the Act (at [7] and [62]-[73]).
2.       The Judge did not form the requisite opinion that protection of the public required the imposition of a sentence different from the sentence that would be imposed applying ordinary sentencing principles. In these circumstances, the Judge had no power to make the serious repeat offender declaration and it should be set aside (at [74]-[75]).
3.       On resentencing, the head sentence is confirmed but a non-parole period of six years is fixed (at [79]).
Controlled Substances Act 1984 (SA) s 32(1)(e), s (3); Criminal Law Consolidation Act 1935 (SA) s 5(1); Criminal Law (Sentencing) Act 1988 (SA) Part 2, Division 2A, s 20A, s 20B, s 20BA; Summary Offences Act 1953 (SA) s 41(1), referred to.
Chester v The Queen (1988) 165 CLR 611; Saeed v Minister for Immigration and Citizenship [2010] HCA 23, (2010) 241 CLR 252 ; Tajjour v New South Wales [2014] HCA 35, (2014) 313 ALR 221; Veen v The Queen (No. 2) (1988) 164 CLR 465, applied.
R v Bechara [2014] SASCFC 36, discussed.
Veen v The Queen (No. 1) (1979) 143 CLR 458; South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35; BHP Billiton v Parker [2-12] SASCFC 73; Fardon v Attorney-General (QLD) (2004) 223 CLR 575; R v Trade Practices Tribunal; Ex Parte Tasmanian Beweries Pty Ltd (1970) 123 CLR 361; Thomas v Mowbray (2007) 233 CLR 307, considered.

R v PHANOS
[2015] SASCFC 26
Court of Criminal Appeal: Kourakis CJ, Vanstone, Peek, Blue and Nicholson JJ
KOURAKIS CJ, PEEK, BLUE AND NICHOLSON JJ:
Introduction

This appeal concerns the proper construction of Part 2 Division 2A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act).
A Full Court of five Justices has been convened because the Director of Public Prosecutions contends that the majority judgment of this Court in R v Bechara[1] misconstrued the provisions of Division 2A. That decision is recent and the proper construction of Division 2A is of public importance. For those reasons the degree of deference ordinarily given to previous decisions of the Court is attenuated in this case. We approach the questions of construction on their merits.
[1] R v Bechara [2014] SASCFC 36.
Division 2A confers a discretion on sentencing judges to depart from the common law sentencing principle of proportionality when sentencing defendants falling within two classes of serious repeat offenders. Division 2A also removes the discretion of judges when sentencing such defendants to fix a non-parole period which balances the need to protect the community with the particular offender’s prospects of rehabilitation and instead mandates a non-parole period of at least four-fifths of the head sentence.
The first class of serious repeat offenders is legislatively decreed and encompasses, without exception, all offenders who have committed three Category A serious offences[2] on three separate occasions. The second class comprises persons who have been judicially declared to be serious repeat offenders (serious repeat offender declaration). A sentencing court must consider whether to so declare a person who has committed two Category A offences, two serious sexual offences[3] against victims under the age of 14, or three serious offences[4] for which a custodial sentence of imprisonment was or will be imposed, and “should” make the declaration if the court considers that it is necessary to impose a particularly severe sentence in order to protect the community.
[2]    Defined by Criminal Law (Sentencing) Act 1988 (SA) s 20A(1).
[3]    Defined by Criminal Law (Sentencing) Act 1988 (SA) s 20A(1).
[4]    Defined by Criminal Law (Sentencing) Act 1988 (SA) s 20A(1).
This appeal raises questions of the construction and application of the judicial power to declare persons to be serious repeat offenders. Two fundamental principles must inform the answers to those questions. First, the common law sentencing principle of proportionality is a critical safeguard of the liberty of the individual. It follows that legislative encroachment on the principle should be read strictly on the basis that departure from the principle is intended only when and to the extent expressly and clearly declared.
Secondly, Parliament’s choice to decree legislatively that a class of offenders be denied the protection of the proportionality principle is no reason for the courts to construe more widely the judicial power to declare offenders to be serious repeat offenders. Parliament in a representative democracy is responsible to its electors for its legislative policy. The judiciary is bound by the principle of legality to construe statutes in accordance with common law protections unless the statutory language demands otherwise.[5]
[5] Saeed v Minister for Immigration and Citizenship [2010] HCA 23, (2010) 241 CLR 252 at [58] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Tajjour v New South Wales [2014] HCA 35, (2014) 313 ALR 221 at [28] per French CJ.
With those principles in mind, the questions of construction of section 20B of the Act on which this appeal turns should be resolved as follows:
1.the duty imposed on sentencing courts by section 20B(3)(a) to consider whether to declare a person to be a serious repeat offender does not also confer a broad power to so declare when a proportionate sentence will adequately protect the community;
2.the power to declare an offender a serious repeat offender can only be exercised when the court forms the opinion that a particularly severe sentence is required in order to protect the community;
3.a particularly severe sentence means a sentence of preventative detention that can only be justified by departing from the principle of proportionality or a sentence which includes a non-parole period higher than one which can be fixed within the discretion conferred by section 32 of the Act.
Factual background
On 8 October 2012, police attended at a unit at Goodwood and searched the premises in the presence of the appellant. They located:
1.six containers containing 7.14 grams of crystals and crystalline powder later found to contain 2.19 grams of methylamphetamine which became the subject of count 1 on the information, trafficking in a controlled drug;[6]
2.a bottle containing 57 white pills later found to contain benzhexol which became the subject of count 2 on the information, possession without lawful authority of a prescription drug;[7] and
3.cash totalling $8,570 which became the subject of count 1 on the first complaint, possession of property reasonably suspected of being unlawfully obtained.[8]
The appellant was arrested, charged and remanded on bail.
[6]    Controlled Substances Act 1984 (SA) s 32(3).
[7]    Controlled Substances Act 1984 (SA) s 18(3).
[8]    Summary Offences Act 1953 (SA) s 41(1).
On 8 December 2012, police performed a traffic stop of a Toyota sedan driven by the appellant on Tapleys Hills Road, Adelaide Airport. They located:
4.two containers containing 1.24 grams of crystals and crystalline powder later found to contain methylamphetamine which became the subject of count 3 on the information, trafficking in a controlled drug;[9]
5.five containers containing 10.68 grams of powder later found to contain 5.37 grams of cocaine which became the subject of count 4 on the information, trafficking in a controlled drug;[10]
6.an ice pipe which became the subject of count 1 on the second complaint, possession of equipment for use in connection with smoking a controlled drug;[11] and
7.cash totalling $2,135 which became the subject of count 4 on the second complaint, possession of property reasonably suspected of being unlawfully obtained.[12]
[9] Controlled Substances Act 1984 (SA) s 32(3).
[10] Controlled Substances Act 1984 (SA) s 32(3).
[11] Controlled Substances Act 1984 (SA) s 32(3).
[12] Summary Offences Act 1953 (SA) s 41(1).
The appellant gave a false name and, by the offending on 8 December, breached the terms of his bail granted on 8 October 2012. In consequence he was charged with:
8.stating false personal detail (name and address) which became the subject of count 2 on the second complaint; and
9.failing to comply with a bail agreement which became the subject of count 3 on the second complaint.
On 17 December 2013, the appellant pleaded guilty in the District Court to the nine counts identified above.
The appellant was sentenced on the basis that he was “persistently dealing at an organised street level”. The Judge accepted that the appellant was addicted to methlyamphetamine and that some of the drugs in his possession were for his personal use. The Judge accepted that his drug addiction played some part in his involvement in drug trafficking but found that he was largely motivated by profit.
The appellant had committed two offences of possess amphetamine for sale[13] in September 1999 and a further offence of possess amphetamine for sale in November 1999. He was sentenced in the District Court in November 2000 and July 2001 respectively to imprisonment for a total of five years and three months with a non-parole period of two years.
[13] Controlled Substances Act 1984 (SA) s 32(1)(e) (as at 16 September 1999).
The appellant had committed a further offence of possess amphetamine for sale in August 2004. He was on parole for the 1999 offending, having an unexpired balance of his sentences of one year, five months and five days, when he committed the 2004 offence. He was sentenced in the District Court in May 2007 to imprisonment for two years and two months (reduced from three years and two months for time spent in custody and on home detention bail). The total of that sentence and the unexpired portion of the earlier sentence was three years, seven months and five days. A non-parole period of two years and four months was fixed.
The offences committed in September 1999, November 1999 and August 2004 comprised three serious drug offences within the meaning of section 20A of the Act. The appellant had no other convictions for offences committed between 2000 and 2012 apart from driving an unregistered vehicle and failing to comply with a bail agreement.
Pursuant to section 18A of the Act, the Judge imposed one penalty for all offences of imprisonment for eight years and eight months, with a non-parole period of seven years and one month. Her Honour declared the appellant to be a serious repeat offender pursuant to section 20B of the Act.
The Judge noted that the making of the serious repeat offender declaration was “exceptional” and that it should only be made upon satisfaction 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”. The Judge considered that the factors relevant to the exercise of the discretion to make a serious repeat offender declaration included the number of prior offences, the time between repeat offences, the seriousness of the offences, the age of the offender, the prospects of rehabilitation and the likelihood of further offending.
Turning to the particular circumstances of the appellant, the Judge observed that the appellant fell to be sentenced for serious drug offending for the fourth time since the year 2000. Her Honour set out particulars of the previous offending and the sentences imposed. The Judge continued:
Despite a number of opportunities for rehabilitation, you have continued to relapse into drug use and drug trafficking. You have been extended mercy with lower non-parole periods in the past as a result of your assurances to courts of your effective and ongoing rehabilitation. In my view there is cogent evidence, given your history, that your offending warrants a particularly severe sentence in order to protect the community. The tragic and often appalling effects of ongoing use and trafficking in methylamphetamine are well-known to these courts. It is a dangerous drug. Cocaine is also a dangerous, highly addictive drug.
Having regard to all of the matters and the authorities that I have referred to I am of the view that it is necessary to protect the community from future offending by you.
I note that by your age, that is the age of 50, it would ordinarily be expected that your level of criminality would have diminished. Unfortunately for you and the community, that has not yet occurred.
I note and have regard to your ongoing addiction. I note that the offending before me has not produced large profits but it was a business of dealing for profit, not merely to feed your addiction. Over the years you have had other sources of funds, yet you continue to traffic in drugs. As I have noted, you not only trafficked in methylamphetamine but also cocaine.
I note and have careful regard to the exceptional nature of the declaration sought. I have carefully considered your assertions that you are now in a stable relationship and are engaged in rehabilitation; given your history and given previous assertions, I do not accept that you are rehabilitated. I am of the view that there is a high risk that you will reoffend. I make the declaration that you are a serious repeat offender.
The Appeal
The appellant appeals against the sentence on the following grounds:
1.That the learned Sentencing Judge erred by making a declaration, pursuant to s 20B of the Criminal Law (Sentencing) Act 1988 (SA) that the appellant is a serious repeat offender.
2.That the learned Sentencing Judge failed to have sufficient regard to the appellant’s efforts at and prospects of rehabilitation.
3.That in all circumstances the non-parole period was manifestly excessive.
The fate of the appeal turns on whether the Judge erred in making the serious repeat offender declaration. The appellant accepts that, even if the serious repeat offender declaration be set aside, the head sentence is nonetheless a proportionate one and does not challenge the head sentence. The appellant contends that the serious repeat offender declaration was wrongly made and a non-parole period less than the four-fifths of the head sentence mandated by s 20BA(1) Act should have been fixed in accordance with section 32 of the Act. If the serious repeat offender declaration was properly made, the appellant accepts that the non-parole period set by the Judge was appropriate.
The appellant contends that the Judge erred in making the serious repeat offender declaration because the sentence imposed was proportionate to the offence. There was therefore no power, or at least no reason, to make the order.[14] In R v Bechara, Kourakis CJ, with whose reasons Sulan J agreed, held that the power conferred by section 20B of the Act to declare a person a serious repeat offender was conditioned on the satisfaction of the sentencing court that a more severe sentence than one fixed in accordance with the principle of proportionality was required in order to protect the community.
[14] R v Bechara [2014] SASCFC 36.
The Director of Public Prosecutions accepts that the head sentence was proportionate to the offence but challenges the correctness of this Court’s decision in Bechara. In making that challenge, the Director advances two primary contentions.
The first of the Director’s contentions is that the term “particularly severe sentence” in section 20B(3)(b) encompasses a sentence at the high end of the range of proportionate sentences. The second contention is that the duty to consider making a serious repeat offender declaration imposed by section 20B(3)(a) includes a power to make a declaration even if the court does not hold the opinion, referred to in subparagraph (b), that the order is necessary to protect the community.
We make a preliminary observation about the interrelationship between the Director’s contentions. Relatively few cases would ever call for the making of a serious repeat offender declaration in the exercise of the discretion which the Director contends is conferred by paragraph (a) in cases in which a particularly severe sentence is not required. To put it another way, it is difficult to foresee any case in which a court would see fit to impose a “moderate” or “light” proportionate sentence on an offender but still find reason to make a serious repeat offender declaration pursuant to the wide paragraph (a) discretion for which the Director contends.
The structure and history of Division 2A
The full provisions of Division 2A of the Act are reproduced in the Appendix to these reasons.[15]
[15] This version has been in force since 4 March 2013.
Section 20A is an interpretative provision. Section 20B provides for certain types of offenders to be characterised as serious repeat offenders. Section 20BA provides the consequences of being so characterised.[16]
[16] Section 20C creates a parallel regime in very similar terms for youths to that created by ss 20B and 20BA for adults.

Section 20B creates a status of being a serious repeat offender. An offender attains that status in one of two ways: by being legislatively decreed under subsection (a1) or by being judicially declared under subsections (1) and (3). Once an offender attains the status, he or she retains that status and its consequences for life.
Subsection 20B(a1) legislatively decrees offenders who meet prescribed criteria to be serious repeat offenders. They are offenders who have been convicted of three separate category A serious offences as defined by section 20A (home invasions,[17] serious and organised crime offences[18] and/or serious firearm offences[19]) and a custodial sentence of imprisonment was or will be imposed. It provides:
[17] Defined by the Criminal Law (Sentencing) Act 1988 (SA) s 20A(1).
[18] Defined by the Criminal Law Consolidation Act 1935 (SA) s 5(1).
[19] Defined by the Criminal Law (Sentencing) Act 1988 (SA) s 20AA(1).
20B—Serious repeat offenders
(a1)    A person will, by force of this subsection, be taken to be a serious repeat offender if the person (whether as an adult or as a youth)—
(a)     has committed on at least 3 separate occasions a category A serious offence to which this Division applies (whether or not the same offence on each occasion); and
(b)     has been convicted of those offences.
Subsections 20B(1) and (3) provides for sentencing courts to judicially declare offenders to be serious repeat offenders. They provide:
(1)     Without limiting subsection (a1), 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; or
(c)     the person (whether as an adult or as a youth)—
(i)has committed on at least 2 separate occasions a category A serious offence (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.
Section 20BA(1) prescribes the consequences of an offender being legislatively decreed or judicially declared a serious repeat offender upon being sentenced for any offence and any time thereafter. The consequences are that a sentencing court is not constrained by the principle of proportionality and must fix a non-parole period at least four fifths the length of the head sentence. This is ameliorated to a limited extent by subsection 20BA(2) in defined exceptional circumstances. Section 20BA provides:
20BA—Sentencing of serious repeat offenders
(1)The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):
(a)     the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;
(b)     any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.
(2)However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—
(a)     his or her personal circumstances are so exceptional as to outweigh the primary policy of the criminal law of emphasising public safety; and
(b)     it is, in all the circumstances, not appropriate that he or she be sentenced as a serious repeat offender.
Division 2A was introduced into the Act in 2003 by the Criminal Law (Sentencing) (Serious Repeat Offenders) Amendment Act 2003 (SA). What is now contained in the two sections 20B and 20BA was originally contained in a single section 20B. There was no equivalent of what are now subsections 20B(a1) and 20BA(2).
In his second reading speech on the introduction of the Bill that became the 2003 Amending Act, the Attorney-General referred to the fundamental common law principle of proportionality, quoted from the High Court’s judgment in Chester v The Queen[20] and referred to in the High Court’s judgment in Veen v The Queen (No 2).[21] He said:
[20] (1988) 165 CLR 611 at 618 per Mason C.J., Brennan, Deane, Toohey and Gaudron JJ being the passage extracted at [36] below.
[21] (1988) 164 CLR 465 at 472-474 per Mason C.J., Brennan, Dawson and Toohey JJ.
The general judicial policy on the question can be neatly summarised by quoting from the decision of the High Court in Chester at page 387, as follows…
[The Attorney-General quoted the passage extracted at [36] below]
There are policy principles that, although vague, can help us with habitual criminals. They are:
…
·Any alternative scheme should be designed so as to appeal to the public and the Parliament as a rational response to the small number of offenders who pose a risk to the public while doing little violence to the principles of justice and fairness that underlie our sentencing system.
·Any such scheme should be capable of being clearly explained to and understood by the public and the Parliament.
·Any such scheme should be based on a discretion conferred upon the judiciary and should avoid mandatory sentencing.
Acting on these principles means that they current habitual criminal scheme in the Criminal Law Sentencing Act 1988 should be repealed and replaced. The elements of the scheme that our proposed to replace it are:
·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.
·The effects of the declaration are that (a) the court is empowered to impose a sentence for the protection of the public that is more than proportional to the seriousness of the offence actually the subject of the sentence and (b) any non-parole period fixed for the sentence must be at least 80 percent of the length of the sentence. The effect of the second of these is obvious. A general principle of sentencing law is a sentencing court must impose a proportionate sentence. The principle of proportionality, says that sentence should not be increased beyond what is proportional to the gravity of the crime committed by the offender merely to extend the period of protection of society from the risk of reoffending by the offender. This was established in Veen (No 2) (1988) 33 ACR 230. If the court finds it desirable, that principle may be breached, to a degree that the court believes warranted.[22]
[22] Parliamentary Debates, House of Assembly, 19.2.2003, pages 2322–2323; the Honourable MJ Atkinson MP.
The principle of proportionality
Division 2A takes as its starting point the common law principle of proportionality and modifies its operation in the case of legislatively decreed and judicially declared serious repeat offenders.
The common law principle of proportionality was emphatically affirmed by the High Court as a fundamental principle of the Australian common law of sentencing in Veen v The Queen (No 1),[23] Veen v The Queen (No 2)[24] and Chester v The Queen.[25]
[23] (1979) 143 CLR 458 at 467-468 per Mason J (Aickin J agreeing) and 473-478 per Jacobs J (Stephen J agreeing) and 894-895 per Murphy J.
[24] (1988) 164 CLR 465 at 472 per Mason C.J., Brennan, Dawson and Toohey JJ.
[25] (1988) 165 CLR 611.
In Veen (No 2),[26] Mason C.J., Brennan, Dawson and Toohey JJ defined the principle of proportionality as follows:
The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen (No 1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender.[27]
The plurality explained the relevance of protection of the community in fashioning a proportionate sentence as follows:
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.[28]
A sentence exceeding a proportionate sentence was seen as “too severe” in the following sense:
The basic difference between the majority and the minority in Veen (No.1) lay in the differing assessments of what was the appropriate proportionate sentence. No judgment would have given support to a sentence exceeding what was truly proportionate. The majority were satisfied that the sentence of life imprisonment was "too severe a punishment to impose on the applicant"[29]…
[26] (1988) 164 CLR 465.
[27] Ibid at 472.
[28] Ibid at 473.
[29] Ibid at 474.
In Chester,[30] Mason C.J., Brennan, Deane, Toohey and Gaudron JJ said:
After all it is now firmly established that our common law does not sanction preventive detention. The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender: Veen v. The Queen (No. 1), Walden v. Hensler, Veen v. The Queen (No. 2). In the light of this background of settled fundamental legal principle, the power to direct or sentence to detention contained in s.662 should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm.[31]
[30] (1988) 165 CLR 611.
[31] Ibid at 618.
The competing objects of sentencing - punishment, deterrence, community protection and rehabilitation - pull towards different sentencing outcomes. A proportionate sentence is one in which those tendencies achieve equilibrium. This understanding of the sentencing process is the key to the proper construction of section 20B(3) because, plainly enough, one of the purposes of Division 2A is to abrogate the common law requirement of proportionality. So much is clear from section 20BA(1) which expressly provides that a court “is not bound” to ensure that a sentence imposed on a serious repeat offender is proportionate to the offence and which imposes the related requirement of a minimum four-fifths non-parole period.
Division 2A uses key terms taken from the common law principle, namely proportion, protection of the community and particularly severe. As appears from the passages extracted above from Veen (No 2) and Chester, these terms or their synonyms were used by the High Court to describe the common law principle.
In this judgment, for ease of reference the term “disproportionate sentence” is used to refer to a sentence that is more severe than the sentence that could properly be imposed if the principle of proportionality were applied.
Particularly severe sentences
The first of the primary contentions advanced by the Director is that the term “particularly severe sentence” includes a “severe” but proportionate head sentence. That submission must be rejected.
Section 20B(3), speaking generally, requires a declaration to be made when a court concludes that there is a need to protect the community. Courts must assume that the legislature has in mind a rational connection between the circumstances it prescribes as enlivening a power and the legal effect of the exercise of the power. The only legal consequence of the making of a serious repeat offender declaration is that provided for by section 20BA(1), that is to say abrogation of the proportionality fetter and the imposition of a duty on sentencing courts to fix a minimum non-parole period. It is not rational to provide that a serious repeat offender declaration should be made even though the sentencing court is satisfied that the community needs no more protection than that which a proportionate head sentence and a non-parole period fixed in accordance with section 32 of the Act would provide.
It is significant that the terminology chosen by Parliament “particularly severe” is redolent of the terminology used by the High Court (“too severe”) in the seminal discussion of the issue of proportionality in Veen (No 2). Parliament also chose the terminology used in that case “protection of the community” and “proportional”. This confirms that the term “particularly severe” in section 20B(3)(b) is used to mean a sentence that is more severe than the sentence that could properly be imposed if the principle of proportionality were applied. The expression “a particularly severe sentence in order to protect the community” serves to emphasise that the sentence is to be as severe as is necessary to protect the community.
There is a further reason evident for Parliament’s choice of the term “particularly severe”. That reason arises out of the minimum non-parole period which must be fixed for serious repeat offenders. Even though sentencing courts have a wide discretion in fixing non-parole periods pursuant to section 32 of the Act, a non-parole period fixed in accordance with that provision requires community protection and rehabilitation to be balanced in accordance with the principle of proportionality. Section 32(5)(c) recognises that in certain circumstances the court may decline to fix a non-parole period at all but that provision does not abrogate the principle of proportionality generally. Section 20B, on the other hand, requires the court to make a declaration when a non-parole period fixed in accordance with the principle of proportionality would inadequately protect the community from the risk of recidivism. The term “particularly severe sentence” aptly describes a sentence which includes a longer non-parole period than would otherwise have been imposed.
The fact that Parliament did not use the term “disproportionate sentence” in section 20B(3)(b) is no indication that Parliament intended to refer to proportionate sentences at the high end of the range of proportionate sentences. The term “disproportionate sentence” would be ambiguous as to whether it is higher or lower than a proportionate sentence. It also would potentially have pejorative connotations that Parliament would wish to avoid. The High Court in Veen (No 2)[32] spoke of the principle of proportionality but did not use the word “disproportionate” to describe its antithesis. It would be to labour a semantic distinction to seize on Parliament’s not using the word “disproportionate” to construe section 20B(3) in a way which effects such a radical departure from the common law sentencing principles. In addition, in the context of fixing a non-parole period in excess of that otherwise mandated by the application of section 32 of the Act, the adjective “particularly severe” is more apt than the adjective “disproportionate”.
[32] (1988) 164 CLR 465.
As observed by the Chief Justice in Bechara,[33] it is quite artificial to speak of a “particularly severe” proportionate sentence. We reject the Director’s submission that Parliament has adopted and modified the casual remark sometimes made by a Court of Criminal Appeal that a sentence is severe but not manifestly excessive as a criterion for making a serious repeat offender declaration. Sentencing judges fix the sentence they consider balances the competing sentencing considerations. They do not first identify a range and then arbitrarily fix the sentence within that range which they then impose. They fix the sentence which, in the exercise of their discretion, they consider to be the right sentence, recognising that other judges may differ but not regarding their sentence as a particularly severe or lenient one.
[33] [2014] SASCFC 36 at [53].
On appeal by an offender, the Court of Criminal Appeal sometimes remarks of a sentence that it is severe in the sense that it is at the high end of the range of proportionate sentences. Remarks of that kind are the product of the court’s appellate review of the sentence and reflect the way in which the court might itself have exercised the sentencing discretion. However, the sentencing judge would be as entitled to take issue with the description of his or her proportionate sentence as “particularly severe” as the Court of Criminal Appeal would be entitled to reject a description of the sentence it would have imposed if sentencing afresh as “particularly lenient”. The fact is that both sentences are proportionate and the different points in the range at which they fall are the product of equally reasonable exercises of the sentencing discretion.
Judges, and counsel who appear before them, approach sentencing in a practical manner. They focus largely on the facts of the particular case but refer also to a relatively small number of comparable sentences. Section 20B(3) should not be given a construction that would burden sentencing judges and counsel with a function analogous to appellate review in an attempt to draw a fine line dividing proportionate sentences into those that are “particularly severe” and therefore should be accompanied by a serious repeat offender declaration and those that are not (including those that are severe simpliciter) and accordingly leave the sentencing judge a broader discretion. The question whether the protection of the community requires a sentence of a different order or range is difficult enough, but is nonetheless infinitely more manageable than the exercise that the Director’s construction would require.
Need for opinion as a prerequisite to power
Legislatively decreed and judicially declared offenders
As noted above, Division 2A applies both to judicially declared offenders and to offenders legislatively decreed to be serious repeat offenders. It is desirable to consider how Division 2A applies to both classes of serious repeat offenders before dealing with the Director’s second contention and settling on a final construction of section 20B(3).
The requirement of proportionality is directly abrogated with respect to offenders who have committed three category A serious offences (legislatively decreed repeat offenders) by force of sections 20B(a1) and 20BA(1)(a). The former provision legislatively decrees three time category A serious offenders to be serious repeat offenders and the latter provision removes the proportionality fetter on a sentencing court’s discretion.
Plainly enough, the removal of the proportionality fetter does not give a sentencing court an arbitrary power to impose a disproportionate sentence even for legislatively decreed repeat offenders. For example, if a more severe sentence is not required in order to protect the community, section 20BA(1) does not authorise the fixing of a disproportionate sentence because the sentencing judge is moved by sympathy for the victim, or because he or she, inconsistently with the common law, holds a personal view that punishment and preventative detention should be the paramount sentencing considerations and uses the opportunity to sentence in accordance with that view.

The considerations which inform, and constrain, the judicial discretion with respect to legislatively decreed repeat offenders are implied from the sentencing context in which the power is conferred. The most important are the competing considerations of, on the one hand, the common law principle of proportionality in sentencing and, on the other hand, the protection of the community. Both considerations are accommodated by imposing a proportionate sentence on legislatively decreed repeat offenders unless the protection of the community warrants a more severe one.
Conversely, a finding that a more severe sentence than that which would be struck by a balance of the common law sentencing considerations is required in order to protect the community should generally cause a court in the exercise of the discretion conferred by section 20BA to fix that more severe sentence with the paramount purpose of minimising the risk to the community.
The exercise of the section 20BA(1)(a) discretion requires an assessment of the risk of recidivism of the sentenced offender. It seems inescapable that a court in sentencing a legislatively decreed serious repeat offender will need to consider whether the community needs protection beyond the term of a common law proportionate sentence and, if so, for how long. The resolution of this appeal does not call for a full consideration of the evidential difficulties of that exercise. Two observations only need be made on the issue of the onus. First, a preventative sentence ought not be imposed unless the court is affirmatively satisfied that it is required. In that respect, the longer the term of the proportionate sentence, the more difficult it will usually be to satisfy a court that preventative detention beyond the term of that sentence is a necessary measure to address the risk of recidivism. Secondly and by way of corollary, if a court cannot be satisfied one way or the other that preventative detention is a necessary risk management measure, the principle of proportionality should continue to be applied.
We interpolate that these same considerations and principles must govern the application of section 20B to judicially declared serious repeat offenders.
Whereas s 20BA(1)(a) merely allows a discretion to depart from the proportionality fetter on the sentencing discretion, paragraph (b) obliges the sentencing court to impose a non-parole period of four-fifths of the head sentence whether that head sentence is proportionate or not. In its application to legislatively decreed serious repeat offenders, it manifests Parliament’s judgment that the minimum non-parole period is always necessary to protect the public from repeat category A serious offenders. The paragraph manifests the same judgment on the minimum proportion necessary for judicially declared serious repeat offenders. As is necessarily the case for any legislative judgments, the mandated minimum non-parole period is immutable save for the power of exemption found in section 20BA(2) to which we next turn. It operates for the remainder of the offender’s life irrespective of the offending and the offender’s personal circumstances.
The exemption discretion
Section 20BA(2) confers on sentencing courts a discretion to declare that section 20BA(1) is not to apply to a particular serious repeat offender (the exemption discretion). It will not be necessary for a court to exercise the exemption discretion in order to impose a proportionate head sentence because section 20BA(1)(a) merely abrogates the common law obligation to impose a proportionate sentence. A sentencing court may nonetheless fix a proportionate sentence in the exercise of its sentencing discretion despite the removal of the proportionality fetter.
The practical importance of the exemption discretion is the opportunity it gives to fix a non-parole period less than the minimum four-fifths mandated by paragraph (b). As observed above, the minimum non-parole period is Parliament’s judgment of the period that is necessary to protect the community. Parliament has carefully limited the circumstances in which the exemption discretion can be exercised. There must be exceptional personal circumstances which outweigh the “primary policy of the criminal law of emphasising public safety”. That policy is legislatively mandated by Division 2A. The opinion of a sentencing court that a lesser non-parole period would adequately protect the community is not a sufficient reason to exercise the exemption discretion. This is perhaps most obviously the case with respect to legislatively decreed serious repeat offenders.
The same approach to the exemption discretion must be taken in the case of judicially declared serious repeat offenders. The consequence, therefore, of a court making a serious repeat offender declaration includes that the offender will thereafter be subject to a mandatory four-fifths non-parole period unless his or her personal circumstances are “exceptional”. That serious consequence must inform the proper construction of a court’s power to make a serious repeat offender declaration.
Section 20B(3)
With this understanding of the operation of Division 2A on the sentencing of serious repeat offenders, we turn to the proper construction of section 20B(3). Section 20B(3) applies to offenders who have committed two category A serious offences or two serious sexual offences against a person under the age of 14 years or who are three time repeat offenders against certain prescribed less grave serious offences (the discretionary order precondition). It provides by paragraph (a) that the sentencing court must consider whether to declare a person liable to be declared a serious repeat offender and by paragraph (b) that the court should make the declaration if a particularly severe sentence is warranted in order to protect the community. The word “should” does not require that the order be made if the Court holds that opinion.[34] However, the circumstances in which a court would decline to make the order will be outside the norm.[35]
[34] Compare South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35 at 38 per King CJ (Perry J agreeing).
[35] Compare BHP Billiton v Parker [2012] SASCFC 73 at [231] per Doyle CJ and White J.
The Director contends that section 20B(3)(a), alone, confers power and an open discretion on a court to make a serious repeat offender declaration; section 20B(3)(b) separately suggests one circumstance in which the court should make a declaration; and section 20BA separately prescribes the consequences after a declaration has been made. The Director contends that each of those three provisions performs a discrete function and should be read separately and independently.
The appellant contends that section 20B should be read as a whole in conferring power on the court to make a declaration and should be read harmoniously with section 20BA prescribing its consequences. As such the purpose of making a declaration and the power to make it are both conditioned upon it being necessary to enable the court to impose a sentence that is not proportionate to protect the community. On the appellant’s contention, the power is conferred by a combination of subsection 20B(1), which prescribes the antecedent offending which renders a defendant liable to be declared a serious repeat offender, and subsection 20B(3) which prescribes the opinion the court must hold to make the declaration.
While it is common to impose an objective jurisdictional limit on powers conferred, such as is effected by subsection 20B(1), it is also common for legislation to condition a power conferred on a court or tribunal on that court or tribunal forming a prescribed opinion. We reject the Director’s contention which compartmentalises the two paragraphs of subsection 20B(3) and which divorces the power to make and purpose of making a declaration from its statutory consequences. Section 20B does not expressly confer power on a court to make a serious repeat offender declaration. That power is conferred implicitly by the entirety of the section, including subsection (1) and both limbs of subsection (3). Subsection (1) forms part of the conferral of power, defining fixed criteria rendering an offender liable to a declaration by a court. Subsection (3) identifies the court upon which the power is conferred as being the court that convicts the offender of a serious offence, requires the court to consider whether to make a declaration regardless of whether an application is made by the prosecution and identifies when a declaration should be made. The consequences of making a declaration, as prescribed by section 20BA, necessarily identify the purpose, and hence constrain the power under section 20B, to make a declaration.
As earlier noted, the duty imposed by subsection (3)(a) is, in terms, only a duty to consider whether to make a serious repeat offender declaration. If paragraph (a) had stood alone, it would by necessary implication have included a power to make the declaration. That implied power may or may not have conferred an open discretion to decide in respect of a particular offender whether the protection of the community or the common law value of proportionality should prevail, depending on the impact of the consequences prescribed by section 20BA on the construction of the scope and purpose of the implied conferral of power. Be that as it may, paragraph (a) does not stand alone and must be construed together with paragraph (b).
Conversely, if subsection (3)(b) had stood alone, it would by necessary implication have included a power to make the declaration. That implied power would have been directly constrained by the need for the court to form the opinion that a particularly severe sentence was needed in order to protect the community. Be that as it may, paragraph (b) does not stand alone and must be construed together with paragraph (a). When the two paragraphs are read together and in conjunction with section 20BA, it is apparent that the court’s power to make the declaration is conditioned on the court’s conclusion that it is necessary to enable the court to fashion a sentence that protects the community.
Parliament might have achieved the same result by omitting paragraph (a) altogether. However, words are not rendered otiose merely because the drafter has chosen one possible form for a statutory provision over another. Without paragraph (a), subsection 20B(3) would read a little awkwardly. Moreover, as the Chief Justice observed in Bechara, section 20B(3)(a) serves the purpose of requiring the court to turn its mind to the question regardless of whether a submission to make a serious repeat offender declaration is made by the prosecution. Division 2A does not provide for the making of a formal application which would, by necessary implication, have required the sentencing court to rule on the question. In the absence of paragraph (a), a court in the exercise of its sentencing jurisdiction could, for good reason, decline to embark on the enquiry whether to make a declaration.
Subsection 20B(3) should be read as a whole. The subsection confers a single discretion which the court is obliged by paragraph (a) to consider. Construed in that way, the discretionary power to make a serious repeat offender declaration is conditioned on the court forming an opinion that a serious repeat offender declaration is necessary in order to protect the community. On that construction, the Director’s contention that section 20B(3)(a) is intended to confer a discretion to make a serious repeat offender declaration for an offender who does not pose an unacceptable risk of harm to the community must be rejected.
It does well to repeat the consequences of making a serious repeat offender declaration when it is not necessary to do so to protect the community in sentencing for the case at hand. Should the offender fall to be sentenced for a subsequent offence, the sentencing court might, in the exercise of the discretion conferred by section 20BA(1), still fix a proportionate head sentence but, subject to the limited exemption discretion, the minimum four-fifth non-parole period must be fixed irrespective of his or her personal circumstances.
The consequences to which we have just referred provide further reason, based on the principle of legality, for rejecting the Director’s construction of section 20B(3). If a court declares a defendant to be a serious repeat offender because it is necessary to impose a particularly severe sentence to protect the community, it is a collateral statutory consequence of the sentencing of the defendant for the offence before the court that the defendant will be subject to the minimum non-parole period for that, and all future, offending. However, if as the Director contends section 20B(3)(a) confers both a duty to consider and a discretionary power which allows a sentencing court to judicially declare an offender to be a serious repeat offender even if a particularly severe sentence is not required, the section effects a radical departure from the common law judicial method. That method is to adjudicate on an existing controversy by making orders calculated to quell that controversy and no more. In the case of sentencing, that requires the punishment of the defendant for the offences before the court by orders tailored to the circumstances then known to the court.
A declaration that will result in a period of preventative detention when that is necessary to protect the community is sufficiently connected to the sentencing process to be characterised as an exercise of judicial power.[36] However, the making of a serious repeat offender declaration when that order is not necessary for the purpose of sentencing a defendant on the offences of which he or she has been convicted is remote from the common law conception of judicial power. In making the declaration, the court would pre-determine the non-parole period for any offence yet to be committed when the circumstances of the offence are necessarily unknown and before a head sentence has been fixed. A declaration so made is not an exercise of the judicial power to punish on conviction of an offence. It is more in the nature of an administrative order on which section 20BA(1)(b) will operate to change the law against which a future sentence will be fixed if the offender is subsequently convicted of another offence. In the absence of clear language, Parliament should not be taken to have conferred such a power on sentencing courts.
[36] Compare Fardon v Attorney-General (Qld) (2004) 223 CLR 575.
Another reason for rejecting the Director’s contention that the duty imposed by section 20B(3)(a) carries with it a wide discretion to make a serious repeat offender declaration even when a court is not satisfied that anything more than a proportionate sentence is necessary, is the absence of any criterion for making the order in those circumstances. The legislature has expressly identified the criterion for those cases in which an order “should” be made in accordance with paragraph (b). The criterion is satisfaction that a particularly severe sentence is necessary in the case at hand in order to protect the community. This is consistent with the consequences of making a declaration prescribed by section 20BA. No other criterion is expressed for the exercise of the discretion that the Director contends is implied by section 20B(3)(a). The Director contends that relevant considerations could be identified for making the order, such as the nature and frequency of the offender’s serious offending. That may be accepted but the question remains: to what ultimate test do those considerations relate? The Director does not identify the criterion to which those considerations are relevant other than the ultimate question of whether the serious repeat offender declaration should be made. The test, so explained, is circular and quite uncertain.[37]
[37] Compare R v Trade Practices Tribunal; Ex Parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374-375 per Kitto J; Thomas v Mowbray (2007) 233 CLR 307 at 330-333 per Gleeson CJ, 344-351 per Gummow and Crennan JJ, 416-419 per Kirby J, and 462-473 per Hayne J; Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 596-597 [34] per McHugh J.
Unless there is a satisfactory legal criterion for the exercise of the discretion which can be found in the facts and circumstances of the instant offending, the power for which the Director contends is not judicial power but executive arbitral power such as is exercised by an industrial commission. It requires the court to select and declare persons with respect to whom the common law of sentencing and section 32 of the Act would be abrogated. The premise of the Director’s contention is that the paragraph (a) discretion applies to offenders who would not be declared by reason of section 20B(3)(b) Act because they do not, at the time of sentencing, pose a risk which requires a preventative sentence. On that premise, the order could only rationally be justified on the ground that the court foresees that protection of the community will be needed in the future if the defendant re-offends, without knowing the nature or circumstances of such hypothetical future offending. Sentencing involves a balancing of the risks of recidivism and the prospects for rehabilitation in the context of imposing a proportionate sentence but courts do not have the expertise or capacity to achieve the predictive certainty required for making judgments on offences which a defendant has yet to commit. The role of the Court on the Director’s submission would be an important step removed from the power exercised by Courts under provisions such as Part 8A of the Criminal Law Consolidation Act 1935 (SA) or Part 2 Division 3 or Part 3 Division 3 of the Act.
Finally, it might be contended that the order should be made because the court considers the offender’s criminal history to be particularly bad. However, an order made for that reason alone is simply an additional punishment for offending for which the defendant has already been punished. In the absence of clear language, Parliament should not be taken to have conferred a discretion which is not founded on the application of objective legal criteria. Nor should it be taken to have imposed a discretion to doubly punish an offender.
The construction of section 20B articulated above, derived from the text, context and evident purpose of Division 2A, is confirmed by the Attorney-General’s second reading speech extracted at [32] above.
The declaration
As noted above, the parties accept that the head sentence imposed by the Judge was proportionate and protection of the public did not require a disproportionate sentence to be imposed. The Director does not contend that protection of the public required the fixing of a higher non-parole period than would be fixed by the application of the principles contained in section 32 of the Act. In her Honour’s remarks on penalty, the Judge did not form the opinion that protection of the public required the imposition of a sentence different from the sentence that would be imposed applying ordinary sentencing principles.
In these circumstances, the Judge had no power to make the serious repeat offender declaration and it should be set aside.
Resentencing
As noted above, the appellant does not challenge the head sentence imposed by the Judge of imprisonment for eight years and eight months. The Judge fixed a non-parole period of seven years and one month being just over four fifths of the head sentence.
The appellant was 50 years old at the time of sentencing. He married in late 2013 and has a nine year old step daughter. A submission made to the Judge that his wife assisted him to stop taking methylamphetamine in August 2013 and that he had been drug free since then was not contested by the prosecution.

Taking into account the appellant’s age, antecedents, personal circumstances and prospects of rehabilitation, an appropriate non-parole period is six years.
Conclusion
We would allow the appeal. We would set aside the serious repeat offender declaration. We would confirm the head sentence but fix a non-parole period of six years.
VANSTONE J: The only question raised by this appeal is whether the sentencing judge erred in making a serious repeat offender declaration. That question involves a consideration of whether this Court’s decision (by majority) in R v Bechara [2014] SASCFC 36 was correct, and, more fundamentally, the interpretation of Division 2A of the Criminal Law (Sentencing) Act 1988, which is entitled “Serious repeat adult offenders and recidivist young offenders”.
Background
The appellant pleaded guilty in the District Court to trafficking in methylamphetamine committed in October 2012, and trafficking in cocaine, committed in December 2012. Some other less serious but associated offences were brought up from the Magistrates Court and dealt with as well. The judge found that the appellant had been “persistently dealing on an organised street level”. The maximum penalty for each trafficking offence is a fine of $50,000 or 10 years imprisonment or both.
The judge imposed one penalty for all the offending, being imprisonment for eight years and eight months. Having made the serious repeat offender declaration, and, responding to s 20BA(1)(b) of Division 2A, the judge fixed a non-parole period of “at least four-fifths” of the head sentence, being seven years and one month.
The appellant makes no complaint about the head sentence, but argues that the serious repeat offender declaration should not have been made and that, absent an obligation to fix the non-parole period at such a high proportion, a much lesser period would have been appropriate.
Discussion
Division 2A of the Sentencing Act was introduced in 2003.
A number of changes have since been made to the sections within the Division. Most of the previous decisions of this Court regarding sections within the Division occurred before the Division took its current form. For that reason I do not find it necessary to discuss all the earlier cases. Division 2A is set out in the appendix.
A person may become a serious repeat offender either:
by force of s 20B(a1), or
by the court making a declaration to that effect.
Dealing with the latter, on the prosecution argument, which I accept, conditions precedent to liability to a declaration are found only in s 20B(1)(a), (b) and (c). Each of these subparagraphs refers to conviction for certain classes of offences committed on a minimum number of occasions. Under s 20B(1)(b) and (c) liability to a declaration arises before there is any consideration of the appropriate sentence for the offence or offences before the court. Under s 20B(1)(a), only serious offences (as defined) which have, or will attract an immediate term of imprisonment, can constitute a basis for liability to a declaration: s 20A(3). To that limited extent a sentencing court will need to consider the question of sentence in conjunction with liability to a declaration.
That interpretation is fortified by the inclusion in s 20B of subsection (a1), mentioned above. This subsection was inserted by No 33 of 2012, and operates from 4 March 2013. This subsection makes clear that a particular group of persons (those who have committed on at least three separate occasions a category A serious offence to which this Division applies) are “taken to be” serious repeat offenders by operation of this subsection. Thus, the operation of the subsection is triggered by a finding that a person has committed and has been (or will be) sentenced to imprisonment for such offences, a matter which again arises at a point antecedent to, and separately from, the question of quantum of sentence. The inclusion of s 20B(a1) demonstrates that Parliament sees utility in certain persons being taken to be serious repeat offenders irrespective of whether, in a specific sentencing proceeding, it leads to a particularly severe or a disproportionate sentence.
Section 20B(3) deals with the court’s role once liability to a declaration is established. The court is obliged to consider whether to make the declaration: s 20B(3)(a). The discretion is unfettered, unless s 20B(3)(b) applies. Subsection (3)(b) is directed to a particular situation, which will pertain only in a proportion of those cases where liability is established, namely where the court is of the opinion that the person’s history of offending “warrants a particularly severe sentence in order to protect the community”. In that circumstance the court should make the declaration. This constitutes a legislative directive as to the way in which the discretion is to be exercised in those cases. It follows that it is likely that for most of the cases within that subset, a declaration will be made.
However, I reject the appellant’s argument that s 20B(3)(b) amounts to a further condition precedent to the making of the declaration. In my view the court would be entitled, for proper reasons, to make the declaration under s 20B(3)(a) without recourse to paragraph (b). That follows, not only from the structure of the subsection, but also from the structure of the section as a whole. As already observed, under s 20B(a1) persons become serious repeat offenders by virtue only of being sentenced to imprisonment for the commission of certain offences. Conviction for certain other offences gives rise to liability under s 20B(1). Had Parliament wished to prescribe another condition precedent to liability, one would expect it to be placed alongside the others in s 20B(1).
To say that formation of the opinion that a “particularly severe sentence” is warranted is not a pre-condition to a declaration is not to say that quantum of sentence is not relevant to the exercise of discretion under both placita of s 20B(3).
As far as I am aware, R v Bechara [2014] SASCFC 36 is the only decision of this Court on the sections in their current form. There, the Chief Justice, with whose reasons Sulan J agreed, held that s 20B(3) imposed a pre-condition to the use of the statutory power to make a declaration additional to those found in s 20B(1). That is, the majority held that the sentencing court must first decide that “a particularly severe sentence” was warranted in order to protect the public before making the declaration. The Chief Justice expressed the view that only in s 20B(3)(b) had Parliament indicated the “considerations against which [the] discretion [was] to be exercised”: [34]. The Chief Justice stated that the word “should” in s 20B(3)(b) was employed by Parliament for the purpose of preserving to the courts the discretion not to make the declaration even where it had determined that a particularly severe sentence was warranted. The Chief Justice further found that “a particularly severe sentence” meant a sentence which was more severe than could be fixed in accordance with the principle of proportionality: [47].
As I have explained, I consider that the structure of s 20B tells against the interpretation favoured by the majority in Bechara. The then recent addition of s 20B(a1) – which did not attract any attention in that case – underscores that the significance of becoming a serious repeat offender goes beyond the liability to a higher head sentence. So much was recognised by this Court in the early case of R v Brady (2011) 110 SASR 246.
The expression “a particularly severe sentence” appearing in s 20B(3)(b) should not be read as if it refers to a disproportionate sentence. Had Parliament meant “a disproportionate sentence” it could have said so, particularly as the same concept is addressed in s 20BA(1)(a). The expression under consideration should be interpreted in its everyday sense of a particularly long sentence.
In all cases where the court considers whether to make a declaration, the purposes of and consequences of making the declaration should inform the exercise of the discretion.
The overriding purpose of the provisions is, plainly, protection of the public and that protection can be achieved, not only by the imposition of longer sentences and the serving of a higher proportion of those sentences, but also by general and personal deterrence. The fact that a person is taken to be or has been declared to be a serious repeat offender is also capable of having an impact on decisions made by the Parole Board and its officers.
In my respectful opinion the decision in Bechara is wrong and should be overruled.
Application in this case
The question remains whether it was open to the judge to make the serious repeat offender declaration in this case.
The current offending comprised offences of trafficking in methylamphetamine in October 2012 and then trafficking cocaine in December 2012 whilst on bail for the October charge. On the occasions of his arrests the appellant was found with $8,570 and $2,135 that was unlawfully obtained. The money and SMS messages on his phone indicated the offending was not isolated. The appellant was engaged in the business of selling drugs. Over the last 15 years the appellant has been convicted of selling controlled drugs on five separate occasions. On each occasion the appellant was running a drug selling business.
The impact of drugs in the community is well documented. Abuse of drugs leads to many acts of violence and dishonesty. There is a real need to protect the community from the consequences of drugs being distributed. Previous terms of imprisonment have not deterred the appellant from further offending. He has breached parole conditions and bail conditions by reoffending. His past behaviour while on parole and conditional release indicates personal deterrence and the protection of the community are paramount considerations.
Conclusion
In all these circumstances it was plainly open to the judge to make the declaration. The sentence fixed was well within the available range.
I would dismiss the appeal
Appendix
20A—Interpretation and application
(1)In this Division—
category A serious offence means any of the following serious offences:
(a)home invasion;
(b)a serious and organised crime offence;
(c)a serious firearm offence;
home invasion means a criminal trespass committed in a place of residence while a person is lawfully present in the place and the trespasser knows of the person's presence or is reckless about whether anyone is in the place;
serious and organised crime offence has the same meaning as in the Criminal Law Consolidation Act 1935;
serious drug offence means—
(a)an offence against Part 5 Division 2 or 3 of the Controlled Substances Act 1984 or a substantially similar offence against a corresponding previous enactment; or
(b)a conspiracy to commit, or an attempt to commit, such an offence;
serious firearm offence means a serious firearm offence within the meaning of Part 2 Division 2AA;
serious offence means—
(a)a serious drug offence; or
(ab)an offence against a law of the Commonwealth dealing with the unlawful importation of drugs into Australia; or
(b)one of the following offences:
(i)an offence under Part 3 of the Criminal Law Consolidation Act 1935;
(ii)an offence of robbery or aggravated robbery;
(iii)home invasion;
(iv)an offence of damage to property by fire or explosives;
(v)an offence of causing a bushfire;
(vi)an offence against a corresponding previous enactment substantially similar to an offence referred to in any of the preceding subparagraphs;
(vii)a conspiracy to commit, or an attempt to commit, an offence referred to in any of the preceding subparagraphs; or
Note—
A person who acts as an accessary to the commission of an offence described in paragraph (b) is, by virtue of section 267 of the Criminal Law Consolidation Act 1935, guilty of the principal offence and has, therefore, committed a serious offence.
(c)an offence that is committed in circumstances in which the offender uses violence or a threat of violence for the purpose of committing the offence, in the course of committing the offence, or for the purpose of escaping from the scene of the offence; or
(ca)a serious firearm offence; or
(cb)a serious and organised crime offence; or
(d)an offence against the law of another State or a Territory that would, if committed in this State, be a serious offence;
serious repeat offender means—
(a)a person who is a serious repeat offender pursuant to section 20B(a1); or
(b)a person declared to be a serious repeat offender under section 20B(1); or
(c)a person declared to be a serious repeat offender under section 20B as in force immediately before the commencement of section 17 of the Statutes Amendment (Serious Firearm Offences) Act 2012;
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 (other than a serious firearm 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—Serious repeat offenders
(a1)A person will, by force of this subsection, be taken to be a serious repeat offender if the person (whether as an adult or as a youth)—
(a)has committed on at least 3 separate occasions a category A serious offence to which this Division applies (whether or not the same offence on each occasion); and
(b)has been convicted of those offences.
(1)Without limiting subsection (a1), 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; or
(c)the person (whether as an adult or as a youth)—
(i)has committed on at least 2 separate occasions a category A serious offence (whether or not the same offence on each occasion); and
(ii)has been convicted of those offences.
(1a)For the purposes of this section, when determining the number of occasions on which a person has committed a particular kind of offence, the offence for which the person is being sentenced is to be included if it is of the relevant kind.
(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.
20BA—Sentencing of serious repeat offenders
(1)The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):
(a)the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;
(b)any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.
(2)However, a court that is sentencing a person who is a serious repeat offender for an offence may declare that subsection (1) does not apply if the person satisfies the court, by evidence given on oath, that—
(a)his or her personal circumstances are so exceptional as to outweigh the primary policy of the criminal law of emphasising public safety; and
(b)it is, in all the circumstances, not appropriate that he or she be sentenced as a serious repeat offender.
20C—Declaration that youth is recidivist young offender
(1)A youth is liable to be declared a recidivist young offender if the following conditions apply:
(a)the youth—
(i)has committed on at least 3 separate occasions an offence to which this Division applies (whether or not the same offence on each occasion); and
(ii)has been convicted of those offences; or
(b)the youth—
(i)has committed on at least 2 separate occasions a serious sexual offence against a person or persons under the age of 14 years (whether or not the same offence on each occasion); and
(ii)has been convicted of those offences.
(2)If a court convicts a youth of a serious offence, and the youth is liable, or becomes liable as a result of the conviction, to a declaration that he or she is a recidivist young offender, the court—
(a)must consider whether to make such a declaration; and
(b)if of the opinion that the youth's history of offending warrants a particularly severe sentence in order to protect the community—should make such a declaration.
(3)If a court convicts a youth of a serious offence, and the youth is declared (or has previously been declared) to be a recidivist young offender—
(a)the court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence (but, in the case of the Youth Court, the limitations relating to a sentence of detention under section 23 of the Young Offenders Act 1993 apply to the sentence that may be imposed by the Youth Court on the recidivist young offender); and
(b)any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.