R v Robinson No. DCCRM-02-1071

[2003] SADC 182

R v ROBINSON
[2003] SADC 182     

Judge Kitchen
Criminal

REASONS FOR DECISION

1. The defendant has previously been convicted and sentenced, prior to 27^th July 2003, to unsuspended terms of imprisonment for three offences committed on three separate occasions, namely unlawful sexual intercourse committed on 24^th January 1997, unlawful wounding committed on 17^th February 1997 and non-aggravated serious criminal trespass committed on 5^th or 6^th May 2000. Each of those offences was committed when he was an adult and the maximum penalty prescribed for each offence was imprisonment for at least five years. Each of those offences is therefore a serious offence as defined in Section 20A of the Criminal Law (Sentencing) Act 1988 (the Act).

2. The defendant is now to be sentenced for yet another serious offence (as defined in the Act) committed on 30^th April 2002.

3. Sections 20A and 20B were inserted into the Act by way of amendment, the operative date of the amendment being 27^th July 2003. 

4. The effect of Section 20B is that if a person has been convicted of at least three offences committed on at least three separate occasions and each offence is a serious offence as defined in Section 20A, that person is liable, or becomes liable, to a declaration that he or she is a serious repeat offender, the court must consider whether to make such a declaration and, if of the opinion that the person’s history of offending warrants a particularly severe sentence to protect the community, then the court should make the declaration. If the court makes such a declaration the court is not bound to ensure the sentence it imposes for the offence is proportional to the offence and any non-parole period fixed in relation to the sentence must be at least four-fifths of the length of the sentence.

5. The plain intendment of these provisions is that the sentence imposed and the non-parole period fixed in respect of a person to whom it applies will be greater than they would have been before those sections were enacted.

6. A question is – do the provisions of Sections 20A and 20B apply to a serious offence committed before the date those sections came into force, but the defendant is to be sentenced after that date. Counsel for the DPP and counsel for the defendant submit that the answer is “No”.

7. Each counsel referred to a number of cases in which the relevant principles for the construction of statutes are discussed.  It is sufficient for the purpose of these brief reasons to set out passages from the judgment of King J (as he then was) sitting as a member of the Court of Criminal Appeal in Samuels v Songaila (1977) 16 SASR 397 where he wrote, at page 419:

   “In construing a statute, there is a presumption against retrospective operation.  The rule is expressed by Dixon C.J. in Maxwell v Murphy (1957) 96 C.L.R. 261, at p.267 as follows:

   “The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights of liabilities which the law had defined by reference to the past events.”

   The presumption seems to have particular force where the law under consideration affects somebody’s position for the worse.  In  R v Chandra Dharma [1905] 2 K.B. 335, at p. 338 Lord Alverstone L.C.J. expressed the rule in these words:

   “Unless the language is clear, a statute ought not to be construed so as to create new disabilities or obligations, or to impose new duties in respect of transactions which were complete at the time when the Act came into force.”

   In Re Raison; Ex parte Raison (1891) 63 L.T. 709, at p. 710 Cave J said:

   “There is an old and well known saying with regard to new laws, that you are not by a new law to affect for the worse, the position in which a man already finds himself at the time when the law is actually passed.””

8. In the later case of R v Dube:  R v Knowles (1987) 46 SASR 118 both defendants had committed the crime of armed robbery. After the commission of those offences, but before the defendants were sentenced, a new Section 302 was inserted into the Criminal Law Consolidation Act 1935 on 8^th December 1986;  it read:

   “A court, in fixing the term of a sentence of imprisonment or in fixing or extending a non-parole period in respect of a sentence, or sentences, of imprisonment, shall have regard to the fact (where applicable) that the prisoner may be credited, pursuant to Pt V11 of the Correctional Services Act 1982 with a maximum of 15 days of remission for each month served in prison.”

   The Court of Criminal Appeal heard appeals by the Attorney-General against the sentences imposed for each defendant’s respective offences.  An issue was whether Section 302 applied to their cases. 

9. King CJ in his judgment, with which Bollen and Von Doussa JJ agreed, observed that Section 302 “… will obviously have the effect of substantially increasing the level of sentences”; he went on, (pp. 120-121):

   “That being so it is necessary to consider whether it operates with respect to all sentences passed after 8 December 1986 whether for offences committed before that date or after that date, or whether its operation is confined to sentences passed with respect to offences committed after 8 December 1986.   The amending Act is silent on this point and there is nothing in the context to assist.  The question must be resolved by resort to the general principles of statutory interpretation.  There is a presumption against retroactive operation:  Maxwell v Murphy (1957) 96 CLR 261 esp per Dixon CJ at 267. I think that it may be taken that the section operates prospectively. The question, however, is whether the prospective operation relates to the date of sentence or the date of the offence. There is a rule of construction that, in the absence of contrary indications, an amendment which increases a penalty for a particular offence, operates only with respect to offences committed after the amendment comes into operation. On the other hand amendments of procedural rules generally apply to all proceedings occurring after the amendment. The present amendment smacks of the procedural in the sense that it affects the principles which regulate the sentencing process rather than the substantive law. The effect of the amendment, however, as I have pointed out, is unquestionably to increase the level of punishment for crime. The question is not free from difficulty, but I have reached the conclusion that the better view is that the amendment applies only to offences committed on or after 8 December 1986.”

10. The High Court in Hoare v R: Easton v R (1989) 86 ALR 361 also dealt with Section 302. The court noted (page 370) without comment:

    “The South Australian Court of Criminal Appeal first examined the effect of Section 302 in R v Dube & Knowles (1987) 46 SASR 118. The offences in that case had been committed before the date of commencement of Section 302 (8 December 1986). The court held that the section should be construed as applying only to offences committed on or after that date and was therefore inapplicable to the offences in the case before it.”

    The High Court went on to conclude that Section 302 was not to be construed as having the effect of substantially increasing the level of sentences, but in my opinion there is nothing in the High Court’s judgment which affects the principle set out by King CJ, namely that in the absence of contrary indications amending legislation which increases the level of punishment for crime applies only to offences committed on or after the date the amendment came into force.

11. As I have said, in my view the provisions of Section 20A and 20B have the effect of increasing the sentence for an offence in the event a serious repeat offender declaration is made. In my opinion the amending Act is silent as to whether it applies to sentences to be imposed for offences committed before or after, or its operation is confined to sentences for offences committed after, the date of operation.

12. In my judgment the provisions of Sections 20A and 20B of the Act do not apply to a sentence to be imposed after the date those sections came into force where the sentence is in respect of an offence committed before that date.

13. The defendant will be sentenced accordingly.