R v SCOTT-COMBE

[2023] SASCA 37

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v SCOTT-COMBE

[2023] SASCA 37

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Auxiliary Justice Mazza)

13 April 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER

The issue on appeal is whether the sentencing Judge was correct in not declaring, nor sentencing, the respondent as a 'serious repeat offender' as he determined that imprisonment, as used in the definition of 'serious offence', did not include terms of detention. On appeal, the appellant contended that imprisonment, as used in the definition of 'serious offence', includes terms of detention.

Held, per the Court, dismissing the appeal:

1.Imprisonment as used in the definition of serious offence does not include terms of detention.

2.The sentencing Judge did not fall into error by not declaring, or sentencing, the respondent as a 'serious repeat offender'.

Correctional Services Act 1982 (SA); Criminal Law Consolidation Act 1935 (SA); Sentencing Act 2017 (SA) ss 6, 52, 53, 54 & 55; Young Offenders Act 1993 (SA), referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Attorney-General (SA) v Smith [2020] SASC 108; House v The King (1936) 55 CLR 499; Lee v New South Wales Crime Commission (2013) 251 CLR 196; Question of Law Reserved (No 1 of 2021) [2021] SASCA 148; The Queen v A2 (2019) 269 CLR 507, considered.

R v SCOTT-COMBE
[2023] SASCA 37

Court of Appeal – Criminal:    Lovell, Bleby JJA and Mazza AJA

1. THE COURT: The issue on appeal is whether the sentencing Judge was correct in deciding that the respondent was not a ‘serious repeat offender’ for the purpose of s 53 of the Sentencing Act 2017 (SA) (‘the Act’). The sentencing Judge determined that the respondent was not a ‘serious repeat offender’ meaning he was not required to fix a non-parole period of at least four fifths of the head sentence. The appellant appeals that ruling submitting that, as a matter of law, the respondent fell within the definition of a ‘serious repeat offender’.

   Background

2. The respondent has an extensive criminal history dating back to 2015. His antecedents include, inter alia, driving offences, trespassing and breaching bail. The sentences imposed for three offences are relevant to this appeal.

3. On 22 June 2017, the respondent was convicted of aggravated dangerous driving to escape police pursuit, contrary to s 19AC(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (‘the 2017 offence’). The maximum penalty is five years imprisonment. Pursuant to s 52(b)(iv) of the Act, this is designated a ‘serious offence’ provided the accused was sentenced to a term of imprisonment. The respondent was a youth at the time of the 2017 offending and sentenced in the Adelaide Children’s Court to a period of seven months detention.

4. On 28 August 2019, the respondent was convicted again for contravening s 19AC(1)(b). The respondent at the time of the offending was an adult. He was sentenced in the Christies Beach Magistrates Court to 10 months imprisonment.

5. On 9 December 2020, the respondent committed the offence of serious criminal trespass in a place of residence contrary to s 170(1) of the CLCA. Pursuant to s 52(b)(vi) of the Act, this is designated a ‘serious offence’ provided the person was sentenced to a term of imprisonment. At the time of the offending the respondent was an adult. On 16 May 2022, the respondent was convicted and sentenced for this offending (and some other minor offending) to three years, nine months and twenty-eight days imprisonment.

   Ruling of sentencing Judge

6. The sentencing Judge was required to consider the operation of ss 53 and 52 of the Act.

7. Section 53 relevantly states:

   53—Serious repeat offenders

   (1)A person is, by force of this subsection, taken to be a serious repeat offender if the person (whether as an adult or as a youth) has committed and been convicted of—

   (a)     at least 3 serious offences committed on separate occasions (whether or not the same offence on each occasion); or …

   (emphasis added)

8. Section 52 of the Act defines ‘serious offence’:

   serious offence means —

   …

   (b)   any of the following offences if the maximum penalty prescribed for the offence is, or includes, imprisonment for at least 5 years: …

   provided that an offence listed in paragraph (a) or (b) is not a serious offence unless a sentence of imprisonment (other than a wholly suspended sentence or a sentence that consists only of a community based custodialsentence) has been, or is to be, imposed for the offence;

   (emphasis added)

9. Thus, to be declared a ‘serious repeat offender’ for the purpose of s 53 of the Act, an offender must have committed three serious offences for which he or she received a term of imprisonment. The respondent, for the 2017 offending, was a youth and sentenced to a period of detention, not imprisonment. The issue before the sentencing Judge was whether, when construing the Act, serving a period of detention amounted to serving a term of imprisonment. If so, the operation of s 52 of the Act meant the respondent was a ‘serious repeat offender’.

10. The sentencing Judge, having construed the relevant legislation, ruled that a period of detention was not a period of imprisonment so the requirements of s 52 were not met. The respondent was not sentenced as a serious repeat offender.

    Grounds of Appeal

11. The appellant appeals against the sentence on the basis that the sentencing Judge erred in not sentencing the respondent as a serious repeat offender pursuant to s 54 of the Act. In particular:

    The Judge erred in holding that the term “imprisonment” within the definition of the “serious offence” in s 52 of the Sentencing Act 2017 (SA) does not include detention.

12. The appellant requires an extension of time.

    Legal principles

13. In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose. That is, the process begins with the text but, as the meaning of words can never be acontextual, the process must also begin by examining the context.[1] The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular, the mischief it is seeking to remedy.[2] Context, in its widest sense, and the purpose of the statute, inform the interpretative task throughout.[3] - fn12Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[4] A statutory offence provision is to be construed according to the ordinary rules of construction; courts do not employ a different regime of construction or interpretation simply because conduct is proscribed as an offence.[5] The language of a penal provision should not be unduly stretched or extended and any real ambiguity as to meaning should be resolved in favour of an accused. However, any ambiguity that calls for such resolution is one which persists after the application of the ordinary rules of construction.[6]

    [1]     The Queen v A2 (2019) 269 CLR 507 at [163] (Edelman J).

    [2]     Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 47 (Hayne, Heydon, Crennan and Kiefel JJ).

    [3]     The Queen v A2 (2019) 269 CLR 507 at [124] (Bell and Gageler JJ, in minority on the result).

    [4]     Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 47 (Hayne, Heydon, Crennan and Kiefel JJ).

    [5]     The Queen v A2 (2019) 269 CLR 507 at [163] (Edelman J).

    [6]     The Queen v A2 (2019) 269 CLR 507 at [52] (Kiefel CJ and Keane J); Question of Law Reserved (No 1 of 2021) [2021] SASCA 148 at [48].

    Appellant’s submissions

14. The appellant submitted that the evident purpose of ss 52 and 53 of the Act was to include a sentence of detention as a youth as potentially qualifying an offence under s 53. That is, the proper construction of the term ‘imprisonment’, as used in the definition of ‘serious offence’ in s 52(b) of the Act, includes detention. Section 55 of the Act sets out the criteria for a youth to be declared a ‘recidivist young offender’. Such a declaration, although discretionary, means a youth may be subject to harsher penalties.

15. The appellant submitted that ss 53 and 55 rely on the same definition of ‘serious offence’ set out in s 52(b). To apply a different meaning to the definition of ‘serious offence’ when considering those sections would impede their intended ambit. That the same definition of ‘serious offence’ should be used when considering the qualifying criteria under ss 53 and 55 is underpinned by the effect of s 6(3)(a) of the Act which reads:

    (3)In applying a provision of this Act to a youth who is being or has been dealt with as a youth (and not as an adult)—

    (a)a reference to imprisonment is to be read as a reference to detention;

    (emphasis added)

16. The effect of s 6(3)(a) on s 55 is that the reference to ‘imprisonment’ in the definition of ‘serious offence’ includes a reference to ‘detention’.

17. The appellant further submitted that s 6(3) of the Act also affects s 53. The appellant submitted that the terms of s 53(1), and, in particular, a “person is, … taken to be a serious repeat offender if the person (whether as an adult or as a youth) has committed...at least 3 serious offences”, taken in conjunction with s 55 demonstrate that s 53 applies when sentencing adults only. However, the appellant submitted that s 6(3)(a) also applies to the expression “(whether as an adult or as a youth)” used in s 53.

18. That is, the appellant submitted that, while s 53(1) applies prospectively to an adult, the qualifying criteria may include past convictions including if the adult had, as a youth, been sentenced to detention. This was submitted to be consistent with the purpose of Division 4 as a whole which was to enact a sentencing regime by which offenders who are serious repeat offenders serve a longer period in prison than they would otherwise serve.

19. Thus, when considering the qualifying criteria in s 53, a sentencing court can have regard to a serious offence where the offender, as a youth, has been sentenced to detention only. It would be incongruous, the appellant submitted, for s 6(3)(a) to only affect s 55 and preclude periods of detention for the purpose of s 53.

20. Further, the appellant compared the relevant provisions in the Act to the predecessor provisions in the Criminal Law (Sentencing) Act 1988 (SA) (‘the Previous Act’). Sections 20A, 20B, 20BA and 20C of the Previous Act were similar in wording and effect to the relevant provisions of the Act. The Previous Act was amended to include s 20C, regarding youths being declared recidivist young offenders, and insert “(whether as an adult or as a youth)” to s 20B, the predecessor to s 53 of the Act.[7] These amendments, the appellant submitted, reflected Parliament’s intention to deal with adult and youth serious repeat offenders identically. The Second Reading Speech for the Previous Act confirmed this intention:[8]

    Members will recall the amendments made in 2003 to the Criminal Law (Sentencing) Act 1988, providing for the courts to declare an adult offender to be a 'serious repeat offender'. If a declaration is made, then the principle of proportionality in sentencing no longer applies and any non-parole period must be at least four-fifths the length of the sentence of imprisonment…

    The Government believes that we should apply this same principle to recidivist young offenders and this Bill would do that.

    [7]     Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009.

    [8]     South Australia, Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Bill 2009, House of Assembly, 13 May 2009, p 2701 (the Hon. J.D. Hill).

21. Bearing in mind this intention, including “(whether as an adult or as a youth)”, it was submitted that the ambit of serious offence used in s 20B of the Previous Act was extended as, therefore, was s 53 of the Act. Namely, the effect and intention of these words is that, when sentencing an adult, ‘serious offence’ includes serious offences committed as a youth that received sentences of detention.

    Respondent’s submissions

22. The respondent submitted that periods of detention are distinguished from imprisonment for the purpose of s 53 of the Act. The respondent submitted that there were two reasons why imprisonment cannot, and does not, include detention for the purpose of Division 4 of the Act.

23. First, there is no statutory basis to construe imprisonment as including detention. Secondly, s 6(3)(a) of the Act does not import detention into a ‘serious offence’ as defined for the purpose of s 53. These reasons were expanded upon as follows.

24. The respondent submitted that the ordinary and grammatical sense of the relevant provisions, considered in their context and legislative purpose,[9] distinguish detention from imprisonment. That distinction is made plain by the operation of s 6(3) in relation to s 55. Parliament considered it necessary to specify that, when applying a provision of the Act to a youth, a reference to imprisonment is to be read as a reference to detention. If imprisonment already included detention, as the appellant submitted, s 6(3) would have no work to do. To put that another way, the respondent submitted that if imprisonment were to include detention for the purpose of s 53, then Parliament, as it did for s 55, should have made such an intention explicit. The Act in other sections has done so. For example, s 49(3) of the Act, which deals with serious firearm offenders, relevantly states:

    (3)For the purposes of this Division, a reference to imprisonment includes, in the case of a youth, a reference to detention in a training centre or home detention (within the meaning of the Young Offenders Act 1993).

    [9]     Attorney-General (SA) v Smith [2020] SASC 108 at [21].

25. No such provision appears in Division 4. Only s 6(3) has work to do in Division 4 and that applies only to s 55. If Parliament meant otherwise, it could easily have said so as it did in s 49(3).

26. Further, it was submitted that the Young Offenders Act 1993 (SA) (‘Young Offenders Act’) is relevant to the context in which the Act should be construed. Sections 23 and 29 of the Young Offenders Act, which direct when custodial sentences can be imposed against youths, establish that imprisonment and detention are fundamentally different concepts. Section 23 limits the court’s power to impose a custodial sentence, including detention, on a youth. Section 29 sets out prescribed circumstances when the youth may be sentenced as an adult or to imprisonment. The respondent, while a youth, was not sentenced as an adult to imprisonment pursuant to ss 23 or 29 meaning that the imposed period of detention is excluded from the definition of ‘serious offence’ as used in s 53 of the Act.

27. Turning to the argument on the wording of s 53, “(whether as an adult or as a youth)”, the respondent submitted that these words have no work to do in defining a ‘serious offence’. These words make clear that if a youth is sentenced as an adult to a term of imprisonment or meets the other criteria in s 23(6) of the Young Offenders Act and sentenced to a term of imprisonment that offence can be considered under the qualifying criteria set out in s 53. The words, absent a clear intention, do not mean that a term of imprisonment includes a period of detention.

28. For these reasons, it was submitted that there is no statutory basis to construe detention into imprisonment.

29. It was the respondent’s position that if imprisonment and detention are distinguished, the appellant becomes reliant on importing detention into imprisonment through s 6(3) of the Act. However, the respondent further submitted that s 6(3) is not applicable because it is administrative in nature. Section 6(3) enables the powers of the Act to be used against a youth and, when applied, those powers are not limited by the absence of the word ‘detention’.

30. The respondent further submitted that the explicit referral to imprisonment, not detention, in the definition of serious offence was significant. If imprisonment included detention the penal provision would be unduly extended.[10]

    [10]   The Queen v A2 (2019) 269 CLR 507 at [163].

    Discussion

31. Section 6 of the Act states that the provisions of the Act apply in relation to the sentencing of a youth. However, if there is a conflict between a provision of the Act and a provision of the Young Offenders Act, the provision in the Young Offenders Act prevails.[11] Thus, when considering the interpretation of the Act as it applies to youths, regard must be had to the provisions of the Young Offenders Act.

    [11]   Sentencing Act 2017 (SA) s 6(2).

32. Pursuant to s 18 of the Correctional Services Act 1982 (SA) (‘Correctional Services Act’), a prison is an institution declared as such by the Governor. The primary object of the Correctional Services Act is protection of the community;[12] considerations involving rehabilitation and reintegration are ‘other objects’.[13] Section 23(2)(a) of the Young Offenders Act sets out that a period of detention is served in a training centre. Section 4 of the Young Offenders Act defines a training centre as a facility for the reception, detention, correction and training of youth offenders established under the Family and Community Services Act 1972 (SA) or the Youth Justice Administration Act 2016 (SA). The object of the Young Offenders Act is to provide youth offenders the care, correction and guidance necessary for their development into responsible and useful community members.[14] There is a clear distinction between imprisonment and detention. They are different impositions separated by their underlying objectives and the institutions in which they are served.

    [12]   Correctional Services Act 1982 (SA) s 3(1).

    [13]   Correctional Services Act 1982 (SA) s 3(2).

    [14]   Young Offenders Act 1993 (SA) s 3.

33. Further, s 23 of the Young Offenders Act limits a sentencing court’s power to impose a custodial sentence against a youth. Pursuant to s 23(4), a sentence of detention can only be imposed against recidivist young offenders, youth serious firearm offenders or if a non-custodial sentence would be inadequate. Section 23(1) prohibits sentencing youths to imprisonment. Exceptions to this prohibition include when the circumstances in s 23(6) are made out, the youth has committed murder[15] or has been sentenced as an adult.[16] Sentences of imprisonment imposed against youths are purposefully limited. These limitations make plain that in such circumstances the Young Offenders Act is to be read in conjunction with the Act. Therefore, the starting point for analysis of ss 53 and 55 of the Act is that the operation of the Young Offenders Act and the Act suggest that a period of detention should be treated as distinct from a period of imprisonment; they are two different and separate concepts.

    [15]   Young Offenders Act 1993 (SA) s 29(4).

    [16]   Young Offenders Act 1993 (SA) ss 29(1)(a), (2).

1. The purpose of Division 4 of the Act is to ensure that recidivist offenders are dealt with more severely than offenders who do not meet the criteria. While ss 53 and 55 fulfil this objective, the granting of a discretion to make a declaration pursuant to s 55 is significant given the absence of a discretion in s 53. Maintaining the discretion to declare a youth a recidivist young offender acknowledges the seriousness of imposing detention against a youth under s 23(4) of the Young Offenders Act. Imposing detention may not prioritise the youth’s prospects of rehabilitation, going against the objects of the Young Offenders Act. Maintaining the discretion in s 55 is indicative of Parliament’s intention to retain the scope of leniency to which youth offenders are entitled under the Young Offenders Act. It would be unjust for both s 53 and s 55 to apply to a sentence of detention as it would contradict the objectives that underpin the Young Offenders Act and the purpose of detention.

2. We turn to consider the proper construction of ss 6, 53 and 55 of the Act and their interconnection through the definition of ‘serious offence’ in s 52(b). Sections 53 and 55 of the Act both refer to ‘serious offences’ for which there is a single definition in s 52(b). Section 6 sets out how the Act applies when sentencing a youth. Section 6(3) sets out how a provision of the Act is to be applied to a youth “who is being or has been dealt with as a youth (and not as an adult)”.

3. Section 6(3)(a) applies to the discretion in s 55 to declare a youth a ‘recidivist young offender’. This declaration relates to a decision under s 23(4) of the Young Offenders Act to sentence a youth to detention. For this purpose, ‘serious offence’ must refer to periods of detention.

4. This reasoning does not apply to s 53. Section 6(3) affects the interpretation of ‘serious offence’ so that when applying the Act to a youth its powers are not inhibited. It is a shorthand way of doing so which avoids each relevant section of the Act including a reference to detention. Section 6(3) does not import detention into the definition of imprisonment when dealing with adult offenders for the purpose of s 53. Nonetheless, s 6(3) has no work to do in this case as the respondent was dealt with as an adult, not a youth.

5. To put that another way, when considering a serious offence pursuant to s 55, imprisonment is deemed to include detention. That is not so for s 53. Thus, when considering the operation of s 53, to use a conviction imposed on a youth, the conviction must have resulted in a term of imprisonment not detention. That is, s 6(3) does not apply when considering s 53. That interpretation does no violence to the operation of s 53. If an offender, as a youth, has in fact been sentenced to a term of imprisonment, not detention, there is good reason for that conviction to be caught by the wording of s 53(1).

6. Thus, the fact that Parliament has deemed it necessary to specify that a reference to imprisonment is to be read as a reference to detention for the purpose of s 55 suggests that when construing the meaning of ‘serious offence’ for the purpose of s 53 the term ‘imprisonment’ does not include detention. Indeed, the remarks in the Second Reading Speech say nothing about the issue currently before the court. Clearly, the Act, by operation of s 55, applies to youths who may be declared ‘recidivist repeat offenders’. It would have been a simple matter for Parliament to have said that when construing s 53, a reference to imprisonment is to be read as a reference to detention; it did not do so. It did do so, as the respondent submitted, in s 49(3) of the Act in relation to serious firearm offenders.

7. The appellant submitted that the expression in s 53(1) that a “person is … taken to be a serious repeat offender if the person (whether as an adult or as a youth) has committed… at least 3 serious offences” expresses a clear intention to capture convictions recorded as a youth. That is, for the purpose of s 53(1), if a youth has been convicted of a serious offence for which he or she has served a period of imprisonment, that conviction can be considered when determining whether the offender has committed three serious offences. So much can be accepted. However, that argument casts no light on whether the expression ‘imprisonment’, as used in s 52, includes detention or is limited to a conviction of a youth who was sentenced to a term of imprisonment not detention.

8. In our view, the words “(whether as an adult or as a youth)” do not extend s 53’s qualifying criteria to consider periods of detention served for what would be serious offences. They make clear that sentences of imprisonment, whether imposed on the adult defendant as an adult or as a youth, may be considered when determining if a previous offence qualifies as a serious offence.

9. We accept that the issue of the interpretation of s 53 and s 55 is not completely clear; some factors point in different directions. At best for the appellant there is an ambiguity in the interpretation of these sections. Resolution of the ambiguity, to the extent that it exists, has an immediate consequence on whether the Judge was required to fix a non-parole period of four fifths of the head sentence. That is, it has a direct consequence on the liberty of a person in the position of the respondent. The principle of legality operates as a working hypothesis upon which statutory language will be interpreted to the effect that Parliament does not intend, in the absence of clear language, to overthrow fundamental principles or infringe rights.[17] As Kiefel J observed in Lee v New South Wales Crime Commission:[18]

   In Coco v The Queen, it was explained that the insistence on express authorisation of an abrogation of a fundamental right, freedom or immunity must be understood as a requirement for a manifestation or indication that the legislature not only directed its attention to the question of abrogation, but has also determined to abrogate the right, freedom or immunity. General words will rarely be sufficient to show a clear manifestation of such an intention because they will often be ambiguous on the aspect of interference with fundamental rights.

   (citations omitted)

   [17]   Lee v New South Wales Crime Commission (2013) 251 CLR 196 at 171 (Kiefel J).

   [18] (2013) 251 CLR 196 at 172.

10. Any ambiguity arising from the interaction of sections discussed above should be resolved in favour of the respondent. The meaning of imprisonment should not, in the application of s 53, be extended to include detention.

11. The sentencing Judge was correct in his interpretation of the relevant provisions. No error has been established.

12. The appellant is granted an extension of time to appeal. We dismiss the appeal.

    Orders

    1.The appellant is granted an extension of time to appeal.

    2.The appeal is dismissed.