R v Wilson - [2015] SASCFC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILSON
[2015] SASCFC 54
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Peek)
28 April 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
Appeal against sentence and the making of a serious repeat offender declaration. The appellant pleaded guilty to two serious sets of offences involving home invasions which occurred about a week apart. Each incident involved the appellant being in company with others and threatening the occupants of the properties with a weapon. The appellant was on parole at the time of his offending. The appellant’s criminal antecedents extended over a period of more than ten years. The appellant’s antecedents were serious and he had poor prospects of rehabilitation. The Judge imposed a sentence of 18 years’ imprisonment and fixed a non-parole period of 14 years and six months.
Whether the sentence was manifestly excessive. Whether, if the sentence was proportionate, it was open to the Judge to make a serious repeat offender declaration.
Held per Gray J (David and Peek JJ agreeing) (dismissing the appeal against sentence and allowing the appeal against the serious repeat offender declaration):
1. The sentences were within the Judge’s sentencing discretion and were proportionate to the appellant’s offending.
2. As the sentence was open under the ordinary principles of sentencing it was not open to the Judge to make a serious repeat offender declaration.
Criminal Law Consolidation Act 1935 (SA) s 20(3), s 137(1), s 170(1) and s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 18A and s 20B(3), referred to.
R v Bechara (2014) 119 SASR 49; R v Phanos [2015] SASCFC 26, considered.

R v WILSON
[2015] SASCFC 54
Court of Criminal Appeal: Gray, David and Peek JJ
GRAY J.

This is an appeal against sentence and the making of a serious repeat offender declaration.
The defendant and appellant, Malcolm John Wilson, pleaded guilty to two serious sets of offences involving home invasions. In respect of an incident that occurred at a place of residence at Salisbury Downs on 5 November 2012, the defendant pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence,[1] aggravated assault[2] and aggravated robbery.[3] In respect of an incident that occurred at a place of residence at Penfield on 13 November 2012, the defendant pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence and aggravated robbery.
[1]    Criminal Law Consolidation Act 1935 (SA) section 170(1).
[2]    Criminal Law Consolidation Act 1935 (SA) section 20(3).
[3]    Criminal Law Consolidation Act 1935 (SA) section 137(1).
The offending on the first occasion was aggravated by reason of the defendant being in company with others and threatening to use a firearm. On the second occasion, the offending was aggravated by reason of the defendant being in company with others and threatening to use a screwdriver. At the time of the offences, the defendant was on parole in respect of the offence of robbery and was liable to serve eight months and 13 days of unexpired parole.
Before coming to sentence the defendant, the Judge addressed an application by the prosecution that a declaration be made pursuant to section 20B(3) of the Criminal Law Consolidation Act 1935 (SA) that the defendant was a serious repeat offender. The Judge had regard to the defendant’s relevant criminal antecedents and to the terms of a presentence report in exercising his discretion to make a declaration that the defendant was a serious repeat offender. The Judge noted that it was open for a determination to be made that it was not appropriate for the defendant to be sentenced as a serious repeat offender. However, as the defendant had not given evidence on oath to satisfy the Judge that he should make this determination, this issue did not arise.
In respect of the offending on 5 November 2012, the Judge, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), imposed the one period of imprisonment of 12 years. In arriving at this sentence, the Judge made a reduction of three years on account of the defendant’s pleas of guilty. The Judge noted that, at the time of this offending, the defendant was on parole and, as breaches of parole related to the present offending, he was ordered to serve the unexpired period of that parole, namely eight months and 13 days. The Judge directed that the sentence of 12 years be cumulative upon the unexpired balance of the previous sentence, resulting in a head sentence of imprisonment of 12 years, eight months and 13 days.
In respect of the offending on 13 November 2012, the Judge, pursuant to section 18A of the Sentencing Act, imposed the one sentence of 12 years’ imprisonment. In arriving at this sentence, the Judge made a reduction of three years on account of the defendant’s pleas of guilty. The Judge directed that this sentence of 12 years be served cumulatively upon the other sentence, resulting in a total head sentence of imprisonment of 24 years, eight months and 13 days.
The Judge, having described the sentence passed upon the defendant as being a heavy one, then proceeded to give consideration to the principle of totality and reduced the total sentence from 24 years, eight months and 13 days to a term of imprisonment of 18 years. The Judge gave effect to this conclusion by making six years, eight months and 13 days of the twelve year sentence imposed for the home invasion of 13 November 2012 concurrent with the twelve year sentence imposed for the home invasion of 5 November 2012. The Judge noted that a mandatory non-parole period of at least four fifths applied to the sentence that he had passed, excluding the unexpired portion of parole. This led the Judge to fix a non-parole period of 14 years and six months. The Judge directed the sentence to commence on 13 November 2012, being the date on which the defendant was remanded in custody and the date on which his parole was cancelled.
The Judge described the circumstances of the offending on 5 November 2012 in terms unchallenged on the appeal as follows:
I mentioned that your crimes were extremely serious, and they are. In relation to the first home invasion, shortly before 10 p.m. on 5 November [2012], you and two other aboriginal men forced your way into a house at Salisbury Downs. At the time three persons were home, being husband and wife and their eldest daughter, aged 27 years. Indeed, the daughter recognised you as someone who regularly purchased drugs from her father at their home.
I am satisfied beyond reasonable doubt that you were carrying a gun and demanded of your victims ‘Where’s your money?’ and ‘Where’s your dope?’ You then swung and struck the male victim to the head with the gun, rendering him unconscious. You then stated that you were there for money which the male victim owed you. You then demanded that his wife take off the jewellery she was wearing. You then stole a laptop and a computer, as well as a mobile telephone out of the woman’s handbag.
You were acting very aggressively and yelling out ‘Do you know who I am?’ I am satisfied that you said this in order to instil further fear into your victims, by boldly claiming to be a notorious criminal. Indeed, the daughter who recognised you was very reluctant to name you to the police, such was her fear of you.
I am satisfied that you were clearly the ringleader of this group, whilst the others who were with you were there aiding and abetting your actions. Having said that, one of the other offenders in your group was holding something in his hand and said ‘Don’t fuck with us black fellas. If I see cops I will come back and shoot you, kill the lot of you’. There is no doubt that the whole incident was extremely terrifying for the occupants.
The home owner, who you struck with the gun, suffered injuries outlined in his victim impact statement. He continues to suffer from the injuries to his head and shoulder to this day, despite the treatment he has received.
In regard to the offending on 13 November 2012, again in terms unchallenged on the appeal, the Judge remarked:
A week later, on 13 November 2012, you and others committed a second home invasion. Around 2 a.m. on that day the victims, a couple, were at home asleep. One was sleeping in her bedroom and her partner was sleeping in the guest room just down the hall. The front door of their home was forced open and the three of you entered the house armed with weapons and a torch. One of your group walked into the master bedroom and held a screwdriver next to the female victim’s face, demanding ‘Where’s all the dope?’ When she told that offender there was nothing like that, he became aggressive. He began to search through the drawers in the bedroom. He then demanded to know where her purse was and after opening the top drawer, he discovered some dress jewellery and called out to the others.
Another aboriginal man entered the bedroom, also armed with a screwdriver. He was even more threatening than the first aboriginal offender. She was told to remove the pillowcases from the pillows and hand them to the offenders. The offenders then started loading jewellery and other items into the pillowcases. Whilst this was happening, she heard a third male shouting to her partner in the other room not to move, as they had a gun to her head. She felt so frightened that she began to shake and she was unable to speak.
Meanwhile, the male victim was in the spare room with one of the offenders who was shining a torch in his face. The male victim was told to stay where he was, otherwise they would shoot his wife, who was in the other room. One of the other offenders then entered that spare room and asked the male where his wallet was. When the male replied he did not have a wallet, that offender grabbed hold of the bed mattress and flipped it over.
Whilst this was taking place, the male victim could hear his partner screaming from the other room. One of the two offenders who was in the room with the male victim left, telling the other offender that if the male victim moved, to stab him.
The male victim was able to reach for a golf club, which was in the corner of the spare room. He challenged his captor with the golf club and his captor then left the room. The male victim followed and as one of the offenders came out of the master bedroom where his partner was being held, he struck that offender with the golf club to the forehead, causing him to fall to the floor. That offender was you. Your two co-offenders then came to your assistance, and the three of you began to attack your male victim, who kept swinging the golf club at you and your co-offenders.
Eventually, you and your co-offenders ran out of the house. As you were leaving the front door, you slipped and you were struck again to the head with the golf club. You were then assisted from the house by your co-offenders.
The Appeal
On the appeal, complaints were advanced that the sentences imposed were manifestly excessive and that, in the circumstances, the Judge erred in making the serious repeat offender order.
Manifestly Excessive
It was first contended that the starting point of 15 years’ imprisonment for each set of offences was too high. It was acknowledged that there was no sentencing standard relevant to offending of this type. However, it was contended that the Judge, in utilising section 18A of the Sentencing Act in respect of multiple charges arising on the one occasion, had inflated the sentence beyond that which was reasonable simply because the defendant had engaged in a course of criminal conduct. It was said that it would have been preferable for the Judge to identify individual sentences in respect of each offence, before coming to fix a single sentence in respect of the offending on each date. It was contended that, had the Judge followed this course, unnecessary inflation of the sentences would have been avoided. It was further argued that the second group of offences occurring on 13 November 2012 did not involve an offence of aggravated assault and that, accordingly, the starting point should have been lower than the starting point for the earlier offending.
Counsel for the Director submitted that this Court should first consider whether the declaration that the defendant was a serious repeat offender should be upheld. It was pointed out that if the Court so concluded, the question of whether the penalty was manifestly excessive was to be considered having regard to the fact that proportionality was no longer a relevant consideration. However, in my view, the first question that arises is whether the sentence imposed was manifestly excessive according to the usual principles, as it is only in this circumstance that the Court would interfere with that sentence. It is to be recalled that section 353(4) of the Criminal Law Consolidation Act provides:
Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)    quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)     quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
The defendant’s offending on both 5 and 13 November 2012 was very serious. Earlier in these reasons, I have set out the Judge’s summary of the offending and the gravity of that offending. On each occasion, the defendant, armed with an offensive weapon and, in the company of others, forced his way into private domestic residences causing terror to the occupants. This is the type of conduct that warrants a substantial sentence of imprisonment, meeting the needs of both general and personal deterrence. In each case, the defendant’s conduct was aggravated by his breach of parole.
The defendant had extensive criminal antecedents, including offences of armed robbery, unlawful wounding, assault and serious criminal trespass extending over a period of many years. The presentence report confirmed the defendant’s poor prospects of rehabilitation in the community and, in particular, his abject failure to comply with earlier orders for supervision. In the course of the Judge’s remarks, he extracted the following from the presentence report:
[The defendant] shows no insight into his offending behaviours, criminogenic needs and issues with violence and substance abuse. He does not indicate genuine willingness to address his issues and adopt a law-abiding life.
[The defendant] does not appear to comprehend the impact his offending behaviour has had on himself and others. [The defendant] acknowledged his issues but was unable to suggest strategies that would prevent future offending.'
As the Judge observed, “that pretty much sums up [the defendant’s] situation”.
In my view, the sentences as finally imposed were well within the Judge’s sentencing discretion and were proportionate to the defendant’s crimes. The order for partial concurrency could, in the circumstances, be viewed as merciful. Accordingly, the appeal against the sentences imposed should be dismissed.
Serious Repeat Offender Declaration
In making the serious repeat offender declaration, the Judge observed:
Given the nature of your crimes and the fact you have been convicted of serious offences in the past, as defined in the Sentencing Act, for which you have received a sentence of imprisonment, which was not suspended, and further, in respect to the offending before me, it is obvious that you will be receiving a sentence of imprisonment which is not going to be suspended. In those circumstances, I must consider whether or not to declare you a serious repeat offender.
Pursuant to s.20B (3)(b) of the Sentencing Act, I am of the opinion that your criminal history and the gravity of the offences before me warrant a particularly severe sentence in order to protect the community from you.
Despite your tragic background, it is clear to me that you have chosen to lead a life of serious criminal behaviour without any consideration for the harm or danger you pose to the community.
I am very mindful of your aboriginality and the particular disadvantage you have suffered as a result of your deprived aboriginal background and generally.
The making of a declaration has been stated by the Court of Criminal Appeal to be appropriate only when it has been established that the person is a habitual offender and a longer term of imprisonment and non-parole period are justified for the protection of the community.
I acknowledge that the court will be justified in departing from the recognised sentencing principle of proportionality by making such a declaration, only upon cogent evidence with a clear appreciation of the exceptional nature of the order.
I refer to R v Jackamarra (2013) SASC 98 per Vanstone J at [18] and Nicholson J at [101]; R v P, A (2013) SASCFC 3 per White J at [82]. As Sulan J said in R v Williams (2006) 96 SASR 226 at [68], such a declaration will only arise in rare cases.
Factors such as your lengthy and serious criminal history, your age, your poor prospects of rehabilitation, the period of time which has elapsed between your offences, the likelihood of further reoffending, and the nature of this offending are all relevant to the exercise of the discretion whether or not to make such a declaration. Again, I refer to what Sulan J said in R v Williams at [71].
I also acknowledge that by making a declaration that you are a serious repeat offender, it will impact upon you in the future should you commit another serious offence again. However, I am satisfied that unless you are dealt with severely you will continue to be a danger to the community. True it is that a particularly lengthy sentence can still be imposed applying ordinary sentencing principles without resorting to a declaration that you are a serious repeat offender. Nevertheless, I consider the time has come for such a declaration to be made.
The sentencing remarks relating to the sentences previously imposed upon you in this court reveal the gravity of that earlier offending. Your present offending reveals an alarming and disturbing escalation from what was already very serious past offending on your part. I am also satisfied that you are apathetic to your victims and the effect the crimes have had on them. Despite assistance offered to you, aimed towards you gaining an insight into your offending ways, it seems your criminal conduct has only worsened. I have no confidence that you intend to reform your criminal behaviour. You have stated so in the past, only to continue committing serious criminal offences. These offences demonstrate that, as they were committed by you whilst you were released into the community on parole. In my view, the public would be rightly frightened of you and the public needs protection from your serious offending propensity.
At the request of your counsel I ordered a pre-sentence report. The report only serves to confirm your poor prospects of rehabilitation in the community through an abject failure to comply with any form of community supervision. Your community corrections officer has stated and I quote from the pre-sentence report at the bottom of p.3:
'Mr Wilson shows no insight into his offending behaviours, criminogenic needs and issues with violence and substance abuse. He does not indicate genuine willingness to address his issues and adopt a law-abiding life.
Mr Wilson does not appear to comprehend the impact his offending behaviour has had on himself and others. Mr Wilson acknowledged his issues but was unable to suggest strategies that would prevent future offending.'
Unfortunately, that pretty much sums up your situation.
Accordingly, in the exercise of my discretion I declare you a serious repeat offender.
I have not done so lightly, as there are very serious consequences that flow from the making of this declaration. Ultimately, as I have remarked, I consider you to be a dangerous criminal, from whom the community requires protection through the imposition of a particularly severe sentence, including setting the non-parole period at a minimum of four-fifths of the sentence.
Having declared you a serious repeat offender, I can still determine that it is not appropriate that you be sentenced as a serious repeat offender. In order for that to occur you were required to satisfy me, by evidence given on oath, that your personal circumstances were so exceptional as to outweigh the primary policy of the criminal law of emphasising public safety and further, that I am satisfied, in any event, that in all the circumstances, it is not appropriate that you be sentenced as a serious repeat offender. You have elected not to give evidence on oath to so satisfy me and so this consideration does not arise.

Section 20B(3) of the Sentencing Act provides:
If a court convicts a person of a serious offence, and the person is liable, or becomes liable as a result of the conviction, to a declaration that he or she is a serious repeat offender, the court—
(a) must consider whether to make such a declaration; and
(b)if of the opinion that the person's history of offending warrants a particularly severe sentence in order to protect the community—should make such a declaration.
Counsel for the defendant submitted that the sentence to be imposed on the application of ordinary sentencing principles would be appropriate and that, in these circumstances, the case was not one for a declaration pursuant to section 20B. Attention was drawn to the decision of this Court in Bechara, where Kourakis CJ, with whom Sulan J agreed, observed:[4]
Plainly enough if a sentencing court is of the opinion that a sentence fixed in accordance with ordinary sentencing principles, including the principle of proportionality, sufficiently protects the community there can be no need to make a serious repeat offender declaration in order to increase the head sentence on the offences before the court.
Vanstone J dissented and in the course of her reasons said:[5]
Although I acknowledge the force of the argument to the contrary, I adhere to the view I previously expressed. For that reason I consider that in the current matter it was open to the sentencing judge to make the declaration, and indeed that he “should” have made it in obedience to s 20B(3)(b) Sentencing Act. Nevertheless, I agree that, because regard was had to an incorrect maximum penalty, the sentence must be set aside and the appellant re-sentenced. I agree with the new sentence proposed by the Chief Justice, except that I would make the declaration afresh.
[4] R v Bechara (2014) 119 SASR 49, [37].
[5] R v Bechara (2014) 119 SASR 49, [79].
On the appeal, the Director submitted that the decision of the majority in Bechara[6] should be reviewed in an appropriate vehicle. It was submitted that the reasoning of Vanstone J was correct. It was contended that, strictly, the observations in Bechara were obiter, as the primary view of the Court was that the sentence was flawed and should be reviewed. The Director submitted that this was a strong and clear case for the making of a declaration.
[6] R v Bechara (2014) 119 SASR 49.
The Director pointed out that the offending was brutal in nature. It was said that the defendant’s willingness to resort to gratuitous violence during the offences was designed to instil terror over and above what was required to effect the robberies from his victims. It was pointed out that the defendant was the ringleader in both home invasions. The defendant had a history of arming himself when committing a robbery. In 2002, the defendant armed himself with a screwdriver when committing armed robbery of the Land of Promise Hotel. On this occasion, a bystander who attempted to thwart the robbery was stabbed. As noted above, the defendant again armed himself with a screwdriver when committing the offences on 13 November 2012. He directed one of his co-offenders, who was also armed with a screwdriver, to stab the victim if he moved. The defendant so acted knowing from his 2002 offending that such a weapon can cause serious injury if used to stab. During the home invasion on 5 November 2012, the defendant armed himself with a firearm and was prepared to strike the victim with that firearm with sufficient force to knock the victim unconscious. He did this in circumstances where the victim had offered no resistance.
The defendant’s antecedents disclosed offending continuously for the period from 1996 to 2012. During this time, he spent more than a decade in custody. This record shows the defendant to have a clear disregard for the safety, wellbeing and property of others. His antecedent record includes numerous instances showing an unwillingness or an inability to comply with bail agreements and bonds. On at least four occasions, the defendant has breached parole. The present offending occurred within four weeks of his release on parole.
A psychological report from Richard Balfour and the presentence report express the view that the defendant showed no insight into his offending behaviour or his criminogenic needs and issues with violence and substance abuse. The defendant has shown, in the Director’s submission, no genuine willingness to address these issues and subsequently adopt a law-abiding lifestyle. The defendant is described as being in the higher range of risk for coming into further legal conflict during the next twelve month period. Although the defendant had previously suggested to psychologists and the court a willingness to make positive changes, there is no basis for concluding that such indications were genuine.
The defendant lied to Mr Balfour and to a psychiatrist, Dr Furst. In the Director’s submission, these lies were clearly designed to avoid responsibility for his present offending. They reflect, in the Director’s submission, an absence of contrition, remorse or a willingness to facilitate the course of justice. It was said that they were consistent with his comment to the police upon being arrested that “next time I’ll kill someone instead of being locked up for robbery”.
Previous punishments and, in particular, terms of immediate imprisonment have failed to deter the defendant from further offending. His breaches of bail of bonds and parole confirm the overriding need for a sentencing regime addressing personal deterrence and the protection of the community.
All of the above matters were said by the Director to support his submission that the protection of the community in this case required the making of a serious repeat offender declaration. Particular emphasis was placed on the nature of the danger posed to the community. It was said that a defendant who acts violently, uses weapons and engages in offending that appears to be escalating poses a substantial risk to the safety of the community. It was said that when the nature of the danger is serious and arises from the commission of offences that are easily perpetrated, the justification for such a declaration will be greater.
Delivery of judgment in the within proceeding was deferred pending a bench of five of this Court reconsidering Bechara[7] in the matter of Phanos. The judgment in Phanos was delivered on 25 March 2015.[8]
[7] R v Bechara (2014) 119 SASR 49.
[8] R v Phanos [2015] SASCFC 26 – Vanstone J in dissent.
The majority, Kourakis CJ, Peek, Blue and Nicholson JJ, held that the power to declare an offender a serious repeat offender may only be exercised if the court is satisfied that a particularly severe sentence is required in order to protect the community. The Court considered that a “particularly severe sentence” is a sentence which does not accord with the principle of proportionality or a sentence which imposes a non-parole period that exceeds that which would be fixed pursuant to section 32 of the Sentencing Act.
In Phanos,[9] the Court allowed the appeal. The Court concluded that the Judge had not formed an opinion that the protection of the community warranted the imposition of a sentence which would not be open under the ordinary principles of sentencing. As a consequence, the Court held that it was not open to the Judge to make a serious repeat offender declaration.
[9] R v Phanos [2015] SASCFC 26.
In the within proceeding, the Judge did not form the opinion that the protection of the public required the imposition of a sentence different to the sentence imposed applying ordinary sentencing principles. In these circumstances, the Judge had no power to make a serious repeat offender declaration.
Conclusion
I would dismiss the appeal against sentence. I would allow the appeal against the serious repeat offender declaration. I would set that declaration aside.
DAVID J. I agree with the orders proposed by Gray J. I agree with his reasons.
PEEK J: I agree with the orders proposed by Gray J and with his reasons.