R v Pumpa

[2013] SADC 157

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v PUMPA

[2013] SADC 157

Reasons for Ruling of His Honour Judge Beazley

22 November 2013

CRIMINAL LAW - PROCEDURE - JURISDICTION

Prisoner "taken to be a serious repeat offender" by statute pursuant to s 20B(a1) of the Criminal Law (Sentencing) Act 1988 ("the Act") - observations as to the consequences of such a provision - application by prisoner, pursuant to s 20 BA(2) of the Act, for the Court to declare that the sentencing provisions relating to serious repeat offenders in s 20BA(1) of the Act do not apply to him - observations as to the interpretation of the words "so exceptional" - concern expressed as to the scope and effect of s 20B(a1) of the Act.

Held: Although there are many factors which militate against the imposition of non-parole period of at least four-fifths of the head sentence, they are properly classified as mitigatory and do not constitute exceptional circumstances.

Criminal Law (Sentencing) Act 1988 ss 20A, 20B, 20BA, referred to.
R v Tootell ex parte A/G (Qld) [2012] QCA 273; AB v R (1999) 198 CLR 111; Griffiths v R (1989) 167 CLR 372; R v Kelly [2000] 1 QB 198; R v Saunders [2011] SASCFC 37; R v M, STE [2013] SASCFC 111; R v Jackamarra [2013] SASCFC 98; R v Williams [2006] SASC 377; Emmerson v DPP (NT) [2013] NTCA 4; R v Betts (2009) SASC 305; Bugmy v The Queen [2013] HCA 37, considered.

R v PUMPA
[2013] SADC 157

Introduction

1. The prisoner, Shane Pumpa, a person taken by Statute to be a “serious repeat offender” pursuant to s 20B(a1) of the Criminal Law (Sentencing) Act 1988 (“the Act”), seeks an order, pursuant to s 20 BA(2) of the Act, declaring that it is not appropriate that he be sentenced as a serious repeat offender. The prisoner, who had a bad criminal history, had pleaded guilty in the Magistrates Court to one count of Aggravated Serious Criminal Trespass in a place of Residence, and one count of dishonestly taking property without the owner’s consent. Both offences arose out of the same event which occurred on 23 April 2013 at Glenelg East.

2. Although there was no dispute that the prisoner falls within the scope of the subject section 20B(a1) of the Act, I will make some observations about the effect of that section. I understand that this is the first case which has involved a consideration of that section, which had commenced on 4 March 2013[1].

   [1] See Section 17 Act No 33 of 2012

3. Section 20B(a1) provides:

   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 three separate occasions a Category A serious offence to which this Division applies (whether or not the same offence on each occasion);

   (b)   has been convicted of those offences.

4. Pursuant to s 20A of the Act a “Category A serious offence” is defined as:

   (a)    home invasion;

   (b)   a serious and organise crime offence;

   (c)    a serious firearm offence.

5. A “home invasion” is defined as 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.

6. Prior to the commencement of s 20B(a1) a Court had a discretion as to whether an offender was declared a serious repeat offender.

7. The subject section is a valid enactment[2], and I am of course obliged to apply the law as enacted by Parliament. It does however raise matters which ought be of concern to right thinking members of the community.

   [2]    cf Emmerson v DPP (NT) [2013] NTCA 4 and [2013] HCA Trans 244

8. The subject section may have far reaching adverse consequences particularly for those who commit offences of “home invasion” as it is defined. For many years it has been recognised that indigenous youths make up a disproportionate percentage of those in custody for offences of this nature. Courts have noted the disadvantage brought about by aboriginality, background, and intoxication. See R v Betts [2009] SASC 305. This was recently acknowledged by the High Court in Bugmy v The Queen [2013] HCA 37.

9. I will refer shortly to the Second Reading Speech of the present Attorney-General.[3]

   [3]    The Hon. J. R. Rau, 13/6/2012, Hansard p 2058

10. However in consequence of the commencement of the subject section any individual who may have committed as a youth two such serious criminal trespasses in a place of residence and is reckless about whether any person is present on the premises faces being declared a serious repeat offender if he reoffends at any time for the rest of his life.

11. Reasonable thinking members of the public might well regard such a consequence as being entirely unreasonable, in the case of an individual who having led an otherwise exemplary life for some 50 years after his youth offending, enters an occupied house looking for food or alcohol.

12. It is also important to note that while the subject section applies to offences committed or on after 4 March 2013, the two previous offences which trigger the statutory declaration under the subject section may have been committed before that date.[4]

    [4]    R v M, S T E [2013] SASCFC 111 at [37] and [42]

13. Before dealing with the particular circumstances of the prisoner it is appropriate to set out the history of the legislation dealing with a declaration of a person to be a serious repeat offender. It is also appropriate to set out the consistent warnings given by the Justices of the High Court of Australia, and indeed of the Court of Appeal in this State, about the draconian consequences of such a declaration, and the need for caution before making such a declaration.

14. In the Second Reading Speech in respect of the subject s 20B(a1), the present Attorney-General made no mention of the warnings expressed by the various Judges of Superior Courts as to the making of declarations without considering the circumstances of each case separately.[5]

    [5]    Hansard 13 June 2012 p 2058 - 2063

15. In his speech the Attorney-General referred at length to an escalation in gun violence and breaches of the Firearms Act 1977.

16. He referred at length to criminal offences committed in association with a serious criminal organisation and a new category of serious firearm offences. The only reference to “home invasions” was the comment “that will also be so for “home invasions”. There was certainly no explanation as to why it was that a “basic home invasion” was to be included in the subject section. It may be that members of Parliament had thought that a “home invasion” for the purpose of the section was restricted to a violent trespass by an individual or individuals in possession of a firearm. It may be that that impression was created by the overwhelming reference to firearms and criminal organisations. If that were the intention or understanding, then the section was poorly drafted. On its proper construction the subject section applies to any criminal trespass to an occupied residence where an accused knows or is reckless as to whether the premises are occupied.

    Background to the Legislation

17. In R v M, S T E (2013) SASCFC 111, and R v Jackamarra [2013] SASCFC 98, the Court of Criminal Appeal recently considered the historical basis for the declaration that a person was a serious repeat offender pursuant to s 20B(1) of the Act. That section vested in the Court a discretion as to whether a declaration ought be made. The Court did not have before it the statutory declaration contained in the subject section.

18. In R v M, S T E, supra, Sulan J. detailed the history of legislation dating back to 1907 wherein South Australian sentencing Judges have had a discretion to deal with serious repeat offenders.[6] His Honour referred to the Decision of the High Court of Australia in R v White[7], in which the Court referred to the importance of a discretion as a safeguard against the wrongful habitual offender declarations under the legislation. He noted that Menzies J. had said:

    The matter therefore became one for the exercise of the discretion which the learned Judge had under the section. That judicial discretion is an ample safeguard against a declaration being made in a case where, notwithstanding a person has three convictions or more, he is not really a habitual criminal.

    [6] At paragraphs 25 - 34

    [7] (1968) 122 at CLR 467

19. The Court noted that previous amendments to the Act had maintained the existence of the discretion. It noted that the previous Attorney General in introducing s 20B(1), the subject of the decision in R v M, STE, had acknowledged the importance of that discretion. Sulan J. also referred to more recent decisions of the High Court of Australia which have restated the importance of that discretion

20. His Honour said:

    It is important to distinguish between the offence or offences upon which the court is to consider making a declaration under s 20B(3) (“declaration offences(s)”) and the offence or offences which render the defendant liable under s 20B(1) to the making of a declaration (“qualifying offences(s)”). Qualifying offences may be committed before or after 27 July 2003 when Division 2A was enacted. In R v Curtis (No 2), Gray J quoted from Nyland J’s observations in the sentencing remarks in R v Miller.[8] Gray J observed:[9]

    [8]    SCCRM-05-232, 21 September 2006.

    [9] (2009) 105 SASR 411, [51].

    It appears clear that as long as the offence under consideration was committed after 27 July 2003, previous offences may be taken into consideration in order to determine whether a declaration is warranted. As Nyland J observed, if convictions recorded prior to the passing of the legislation were not to be taken into account, it would have the effect of stultifying the intended operation of the provisions for some years.

    ….

    In R v Tregaskis, this Court considered a habitual offender declaration made under the repealed s 319 of the Criminal Law Consolidation Act 1935 (SA). The Court observed:[10]

    [10]   R v Tregaskis [1937] SASR 358, 359.

    …[T]he practice is that the declaration is not made, unless it appears to the Judge that the prisoner has been leading a persistently dishonest or criminal life. For that purpose the criminal record will frequently, if not generally, afford sufficient prima facie evidence of the fact: that is, if the crimes are numerous and serious, and the intervals – between the discharge from prison and the commission of the subsequent crimes – are short. But, on the other hand, if there should be any considerable interval between the convictions it is possible that further evidence would be required, and certainly any genuine attempt by the prisoner to live honestly should receive serious consideration The matters to be considered are the nature and the number of the crimes committed, and the intervals between them, together with any evidence that may be forthcoming of any effort to live honestly.

    [Emphasis added.]

    In McGarry v The Queen, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said that an application for such an order “should be treated with commensurate care and attention to detail.”[11]

    [11]   McGarry v The Queen (2001) 207 CLR 121, 132.

    In Strong v The Queen, the High Court was considering the Habitual Criminals Act 1957 (NSW). Kirby J made the following general remarks about how such provisions are to be approached by sentencing courts:[12]

    [12]   Strong v The Queen (2005) 224 CLR 1, [78] - [81].

    In White, in 1968 this Court unanimously stressed the confinement of orders under legislation such as the Habitual Criminals Act to cases really requiring them. It emphasised   the substantial content of the discretionary power to make such orders and hence the importance of making them only where a consideration of all the circumstances warranted it.

    In relation to somewhat different legislation, but also providing for preventative detention, this Court has repeatedly stated that the powers conferred “should be confined to very exceptional cases where the exercise of the power is demonstrably necessary”. In Lowndes v The Queen, the Court unanimously affirmed the approach of Hayne JA in the Court of Appeal of Victoria in R v Moffatt to the effect that, the power being exceptional, the exercise of the power could only be warranted by exceptional circumstances. This was also the approach taken in McGarry. It led the majority of this Court in that case to insist that full details of the offender’s past conduct should be provided to the sentencing judge under conditions that afforded the person affected a proper opportunity to meet the prosecution’s case…

    The respondent argued that these earlier cases were distinguishable. It is true that the Habitual Criminals Act and the legislation considered in the authorities just mentioned, other than White, are different. The Habitual Criminals Act does not provide for indefinite detention. It provides for concurrent and not consecutive sentences. It is enlivened by different considerations. However, what is common is the exceptional addition to the punishment normal to proved offences; the consequent risk of disproportion between the immediate crime and its punishment; and the added punishment “for the purpose of extending the protection of society from the recidivism of the offender.”

    The foregoing are the considerations that led in Chester v The Queen, Thompson v The Queen, Lowndes and McGarry to this Court’s insistence upon serious, individual and scrupulous attention by the judiciary in every case where such exceptional legislation is invoked. Those considerations led me in Thompson to say:

    Where there was any possibility that an order of indefinite imprisonment might be made, it was essential that the procedures observed should be regular and scrupulously thorough and that the materials, including the pre-sentence reports, should be as adequate and complete as fairness to the prisoner required.

    [Footnotes omitted. Emphasis added.]

    In Buckley v The Queen, the High Court was considering an indefinite sentence imposed under the Penalties and Sentences Act 1992 (Qld). The Court observed:[13]

    [13] [2006] HCA 7, [6].

    We are not presently concerned with a case, such as Chester v The Queen, or McGarry v The Queen, where the offending would have attracted a finite or nominal sentence in the order of about three or four years. Nor are we concerned with a case where the available maximum penalty was plainly inadequate to serve a necessary protective purpose. On any view of the matter the appellant was facing a long sentence. Even so, it is important to bear in mind what was said in Chester and McGarry about the imposition of an indefinite sentence. Such a sentence involves a departure from the fundamental principle of proportionality. The statute assumes that there may be cases in which such a departure is justified by the need to protect society against serious physical harm; but a judge who takes that step must act upon cogent evidence, with a clear appreciation of the exceptional nature of the course that is being taken. Furthermore, as was pointed out in McGarry, the assessment of risk required by the statute may involve temporal issues requiring careful examination.

    [Footnotes omitted.]

    Unlike habitual offender legislation, a declaration under s 20B does not result in indefinite detention. However, as Kirby J observed in Strong and the High Court observed in Buckley, habitual offender legislation and legislation such as s 20B share the fundamental feature of departing from the common law principle of proportionality between punishment and offending. It is this feature which requires that the utmost care be taken in the exercise of such discretions.

    In the Second Reading Speech, the Attorney-General said:[14]

    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.

    In R v Williams, Sulan J considered the matters relevant to the making of a s 20B declaration:[15]

    The making of a declaration pursuant to s 20B is discretionary. In my view, a declaration should only be made when the Court is satisfied that the person is such an habitual offender that a lengthier term of imprisonment and non-parole period is justified for the protection of the community. Factors to be considered include the number of prior offences, the seriousness of the offences, the age of the defendant and his or her prospects of rehabilitation, the time which has elapsed between repeat offences, the likelihood of further re-offending and the nature of offending, having regard to the protection of the community.

    In R v P, A; P, A v Police, this Court considered a declaration that a person was a recidivist young offender under s 20C. The consequences of such a declaration are similar to that under s 20B, although they only apply while the person remains a youth. White J made the following observations:[16]

    Had there been some utility to it, the Judge’s declaration under s 20C would have been understandable. I have already referred to the appellant’s extensive criminal history and, as the District Court Judge concluded, he is a person from whom the community requires protection. Nevertheless, I consider that a declaration under s 20B or s 20C of the CLSA should only be made with some caution. As with an order for indefinite detention under s 23 of the CLSA, it involves a departure from a fundamental principle of sentencing, namely, proportionality. The purpose of the declaration is principally protective and, in my opinion, the making of declarations should be confined to those cases in which that is really required. As with orders for indefinite detention, a judge should make the order only upon cogent evidence and with a clear appreciation of the exceptional nature of the course which is being taken.

    [Footnote omitted.]

    [14]   House of Assembly, 19 February 2003, Hansard SA 2323 (The Hon. M.J. Atkinson).

    [15]   R v Williams [2006] SASC 377, [71].

    [16]   R v P, A ; P, A v Police [2013] SASCFC 3, [82].

21. In a series of recent decisions the Court of Criminal Appeal has again expressed the exceptional nature of a declaration that a person is a serious repeat offender. It has concentrated upon the question as to whether a disproportionate sentence is required to protect the community.

22. In R v Williams the Court concluded that if there was no need in the circumstances to impose a disproportionate sentence to protect the community then in those circumstances no declaration ought be made.

23. It is of course trite that the Court retains a discretion to reduce a sentence in the event of a declaration, under s 20BA of the Act.

24. However while a Defendant may satisfy the Court by evidence given on oath pursuant to s 20BA(2) that it is not appropriate that he be sentenced as a serious repeat offender, the declaration that he is a serious repeat offender remains in place. As the Courts have noted the mere fact of the declaration has significant adverse consequences for an accused.

    The application by the prisoner under s 20BA(2) of the Act

25. In light of the conviction of the prisoner for the two qualifying offences of Aggravated Serious Criminal Trespass in an occupied residence on 20 February 2004, the prisoner is taken by Statute to be a serious repeat offender pursuant to s 20B(a1) of the Act.

26. In consequence the provisions of s 20BA apply to the sentencing of the prisoner.

27. As Nicholson J. noted in R v Jackamarra, supra, at [17] in respect of the predecessor legislation, subsection 20BA(a)(1) provides that the Court is not bound to apply proportionality whereas subsection 20BA(1)(b) provides that the non-parole period must be at least four-fifths of the head sentence.

1. The prisoner made application pursuant to s 20BA(2) of the Act that the Court ought declare that he not be sentenced as a serious repeat offender.

2. He gave evidence on oath as did his partner Marcia Joanne Octoman.

3. The prisoner explained the background to the historical offending detailed in the antecedent report.

4. He explained that he had fallen into a cycle of drug use and gambling which had resulted in a life of crime essentially breaking and entering premises at night to support these practices to which he had become addicted.

5. He explained that in late 2011 he had nearly completed his period of parole for offences committed in 2001 and 2003, when he committed further offences of serious criminal trespass.

6. He had been placed on a Drug Court Program and had successfully completed it. He had entered into a stable relationship with his partner and had made significant progress with his rehabilitation.

7. It was because of this progress that the Magistrates Court had imposed a suspended sentence bond in respect of the offences when he was sentenced on 6 August 2012.

8. Subsequently he had found employment and was doing well. He said however with the impending birth of his child he suffered panic attacks, and become depressed.

9. The medication prescribed to him was not working and he decided to obtain drugs from a dealer at Glenelg. The subject offences followed immediately upon the demand by the drug dealer for cash.

10. Ms Octoman explained that she had noticed a significant positive change in the prisoner when she observed him during his rehabilitation.

11. She expressed confidence in his rehabilitation. She believed that the subject offending was a consequence of the prisoner being overwhelmed.

12. She was confident it would not occur in the future.

13. In addition the prisoner’s evidence as to his background and the causes of his depression, was confirmed by a report of the clinical psychologist Dr Cayley dated 7 August 2013, and the psychiatrist Dr Begg dated 16 October 2003.

14. His progress with rehabilitation was confirmed by pre-sentence reports dated 6 November 2012 and 3 September 2013; and the report from the SA Management Plan dated 5 August 2013.

15. All of those matters militate against the prisoner being sentenced on a disproportionate basis under s 20BA(1)(a) of the Act and indeed against the obligation to impose a non-parole period of four fifths of a head sentence.

16. The test however is not one of good reason but whether the prisoner’s personal circumstances are “so exceptional”[17] as to outweigh the primary policy of the criminal law of emphasising public safety.

    [17]   See R v Saunders [2011] SASCFC 37 and R v Fowler [2006] SASC 18

17. In R v Kelly [2000] 1 QB 198, the Court of Appeal said:

    We must construe “exceptional” as an ordinary familiar English adjective and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual or special or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely or normally encountered.

18. This dicta has been applied in most Australian States. See Mac v R [2012] VSCA 19, and R v Ioannou (2007) 17 VLR 563 at 568.

19. In R v Tootell, Ex Parte A/G (Qld) [2012] QCA 273 the Court of Criminal Appeal emphasised that there was a need for “careful assessment” as to whether all of the circumstances justified a finding of “exceptional”, even if, on their own, the individual factors may not be.

20. It held that in that case a combination of factors including “intellectual and social impairment” were powerful mitigating circumstances, however those mitigating factors were not exceptional in that case. Applying the dicta in that case to the subject case, there are many factors which constitute mitigating factors, in favour of the prisoner. However even when considered as a whole, they do not constitute exceptional circumstances as explained in the case law.

21. Indeed sadly they are the sort of factors which are evident in most cases of prisoners with long criminal histories.

22. This prisoner has a history of offending when he finds himself under pressure in the community.

23. Accordingly I decline to make the declaration sought by the prisoner.

24. While I must impose a non-parole period of not less than four-fifths of the head sentence, I am satisfied that a disproportionate sentence is not justified.