R v Robinson No. DCCRM-02-1071 - [2003] SADC 182

R v ROBINSON
[2003] SADC 182
Judge Kitchen
Criminal
REASONS FOR DECISION

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).
The defendant is now to be sentenced for yet another serious offence (as defined in the Act) committed on 30^th April 2002.
Sections 20A and 20B were inserted into the Act by way of amendment, the operative date of the amendment being 27^th July 2003.
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.
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.
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”.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] SADC 182
Decision Date: 23 December 2003

CaseChat Overview and Summary

In the case of R v Robinson, the defendant, previously convicted and sentenced for three separate serious offences, was to be sentenced for another serious offence committed after the commencement of Sections 20A and 20B of the Criminal Law (Sentencing) Act 1988. The primary legal issue before the court was whether the amendments introduced by Sections 20A and 20B, which increased the severity of sentences for serious repeat offenders, applied retrospectively to offences committed before the amendments came into force. The court examined this issue by considering the principle of statutory interpretation that presumes against retrospective operation unless the intention to do so is clearly expressed. The court referenced several cases to support its analysis, including the judgment of King J in Samuels v Songaila, which emphasised the presumption against retrospective application of statutes affecting rights or liabilities in a detrimental manner.

The court further considered the High Court's decision in Hoare v R: Easton v R, which also dealt with the retrospective application of sentencing amendments. The court concluded that in the absence of clear indications to the contrary, amending legislation that increases the level of punishment applies only to offences committed on or after the amendment's effective date. Therefore, the court held that Sections 20A and 20B of the Act did not apply to sentences for offences committed before the sections came into force, even if those sentences were being imposed after the amendments were enacted. Consequently, the defendant's sentencing would not be subject to the increased penalties provided for in the amended sections.

Orders