R v PHANOS

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.