R v PHANOS

Case [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…

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R v Phanos [2015] SASCFC 26
Case
[2015] SASCFC 26
Decision Date

CaseChat Overview and Summary

This appeal concerned the interpretation and application of section 20B of the Criminal Law (Sentencing) Act 1988 (SA), which deals with declarations for serious repeat offenders. The appellant was convicted of trafficking methylamphetamine and cocaine, as well as other associated offences, and was sentenced to eight years and eight months imprisonment. The sentencing judge also made a declaration that the appellant was a serious repeat offender, which mandated a non-parole period of seven years and one month, being four-fifths of the head sentence. The appeal was heard by Kourakis CJ, Vanstone, Peek, Blue and Nicholson JJ.

The central legal issue before the Full Court was whether the sentencing judge had erred in making the serious repeat offender declaration. This required the court to determine the proper construction of section 20B, specifically the circumstances under which a court has the power to make such a declaration, and whether the declaration was justified on the facts of the case. The court also considered the implications of the declaration on the fixing of the non-parole period.

The Full Court reasoned that the duty imposed on sentencing courts by section 20B(3)(a) to consider declaring an offender a serious repeat offender does not confer a broad power to do so when a proportionate sentence adequately protects the community. Instead, the power to declare can only be exercised when the court forms the opinion that a particularly severe sentence is required for community protection. A particularly severe sentence was understood to mean a sentence of preventative detention that departs from the principle of proportionality, or a sentence with a non-parole period exceeding that which could be fixed within the court's ordinary discretion under section 32 of the Act. In this case, the parties accepted that the head sentence was proportionate and that public protection did not necessitate a disproportionate sentence or a higher non-parole period than ordinarily fixed. Therefore, the sentencing judge lacked the power to make the declaration.

The appeal was allowed. The serious repeat offender declaration was set aside. While the head sentence of eight years and eight months imprisonment was confirmed, the court varied the non-parole period to six years, taking into account the appellant's age, antecedents, personal circumstances, and prospects of rehabilitation.

Orders

Orders of the court

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Background

Background to the litigation

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] and3.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] and7.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; and9.failing to comply with a bail agreement which became the subject of count 3 on the second complaint.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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), orby 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.

Ratio Decidendi

Legal Principle Established

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.