Britten v The Queen - [2002] WASCA 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BRITTEN -v- THE QUEEN [2002] WASCA 234

CORAM: MURRAY J
TEMPLEMAN J
MILLER J

HEARD: 26 JULY 2002

DELIVERED : 28 AUGUST 2002

FILE NO/S: CCA 179 of 2001

BETWEEN: CARL BRITTEN
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Application for leave to appeal against order for indefinite imprisonment and ineligibility for parole

Legislation:

Sentence Administration Act 1999 (WA)

Sentencing Act 1995 (WA)

Result:

Leave to appeal refused

Category: A

Representation:

Counsel:

Applicant: Mr I G Weldon
Respondent: Mr D Dempster

Solicitors:

Applicant: Gary Massey & Associates
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Chester v The Queen (1988) 165 CLR 611
McGarry v The Queen (2001) 184 ALR 225
Thompson v The Queen (1992) 8 WAR 387

Case(s) also cited:

Garlett v The Queen [2000] WASCA 72
Narrier v The Queen [2000] WASCA 86
R v Moffat [1988] 2 VR 229
Veen v The Queen (No 2) (1988) 164 CLR 465

MURRAY J: I have had the advantage of reading in draft the reasons for decision now published by Templeman J with which I entirely agree.
I wish only to add a few brief observations. Ground 3 complained about the receipt into evidence of a report of the psychiatrist, Dr Srna. I need not set out the way in which the ground was particularised. Counsel informed us that the ground was not abandoned but was not pressed. In my opinion, the ground might well have been abandoned. It is without merit.
The other observation which I wish to make concerns grounds 2 and 4 insofar as they complain about the order made for the applicant's indefinite imprisonment and the relationship of such an order to the question of the consideration of eligibility for parole in respect of the imposition of a finite term of imprisonment, described in s 98(1) of the Sentencing Act 1995 (WA) as the "nominal sentence". By s 98(1)(c), indefinite imprisonment may only be ordered if a parole eligibility order is not made in respect of the finite term of imprisonment.
A parole eligibility order will be made having regard to the criteria contained in s 89(2) and it will be refused in the exercise of the Court's discretion, if, having regard to all relevant criteria, there is nothing in the case which points affirmatively towards the exercise of the discretion to grant parole: Thompson v The Queen (1992) 8 WAR 387, 395 – 6. Included in the relevant considerations are those described in s 89(2)(d), the circumstances relevant to the offender as they may be at the time when he or she would be eligible for release on parole if a parole eligibility order were made. So, as it was put in Thompson, there is an element of prognostication in this decision.
Kennedy DCJ declined to make the parole eligibility order in relation to the sentences aggregating 9 years imprisonment which she imposed on 26 November 2001, backdating those sentences to 12 January 2001, the date upon which the applicant was arrested in respect of the offences which were committed on 3 January 2001, following which the applicant remained in custody until the sentencing date.
Her Honour expressly gave consideration to matters touching upon s 89(2)(d). Under s 93(1)(b) of the Sentencing Act, in respect of an aggregate term of 9 years imprisonment with a parole eligibility order, the offender would be eligible for parole after serving 4 years imprisonment. Necessarily involved in her Honour's decision to deny eligibility for parole in this case is the proposition that there was no material sufficient to persuade her Honour that after serving that period, the applicant would be a person who ought to have the opportunity for release on parole having regard to all the factors relating to that question.
Ground 4 complains that the term of 9 years imprisonment was made cumulative upon an unexpired parole term previously imposed, an outcome which, it is argued, offends the totality principle and results in a "crushing" finite term. The ground cannot be made out in my opinion, but to understand why it is necessary to see how Kennedy J structured the sentencing process. The previous parole term to which reference is made is discussed at length by Templeman J. I do not wish to repeat what his Honour has said. I note merely that the term was an aggregate of 12½ years imprisonment with parole eligibility imposed on 5 April 1993 for a total of six serious offences. In the result, by applying s 93(1)(b) the applicant was obliged to serve a non‑parole period of 6 years and 4 months. Shortly after doing so, having regard to other statutory deductions to which it is unnecessary to refer, on 10 January 1999 he was released on parole.
About five months later, on 15 June 1999, the applicant was sentenced to 9 months imprisonment for the aggravated burglary of a dwelling house. By s 89(3) a parole eligibility order might have been, but was not, made. The applicant was therefore required to serve six months of that sentence and, having done so, on 14 December 1999 he was again released on parole in respect of the sentences imposed on 5 April 1993.
This time the applicant had a rather longer period of "clean street time": Sentence Administration Act 1995 (WA), s 73, but, as Templeman J has noted, the applicant remained on parole when the present offences were committed on 3 January 2001. When he was arrested and returned to custody on 12 January 2001 he would have resumed service of the balance of the term imposed on 5 April 1993 and that I presume would have been his situation on 26 November 2001 when he was sentenced for the present group of offences. But in view of the periods of time involved, there would be little, if any, of those previous sentences remaining unserved by that time.
However that may be, as I have said, when her Honour imposed the finite term of 9 years imprisonment, she backdated it to 12 January 2001, presumably upon the basis that since then the applicant had been in custody in respect of the offences committed on 3 January 2001 and for no other reason: Sentencing Act, s 87. Counsel were not able to verify whether that approach was correct, but the order worked in the applicant's favour, even though the finite term that her Honour then imposed was ordered to be served cumulatively on the "unexpired parole term" of the previous sentences.
That is because under the Sentence Administration Act, s 8, the order of service of the terms from 12 January 2001 would be firstly that imposed without parole eligibility on 26 November 2001 and then, unless and until released on parole, the balance of the parole term previously imposed on 5 April 1993. However, by the Sentencing Act, s 100, the sentence of indefinite imprisonment will begin on the day when the applicant will be eligible to be released on parole after serving the term of 9 years imprisonment or the unexpired parole term. As the applicant would be eligible to be released from custody in relation to the 9‑year‑term after serving six years (Sentencing Act, s 95), and will then be immediately eligible for release on parole in respect of the unexpired portion of the parole term, the effect of the orders made, in the context of the statutory scheme, is to make the indeterminate term run concurrently with the unexpired portion of the previous parole term from 13 January 2007.
By the Sentencing Act, s 101, a prisoner sentenced to indefinite imprisonment may be released on parole at any time after that sentence begins. For completeness I note that under the Sentence Administration Act, s 25, the parole order is made by the Governor for a period, which his Excellency sets, of at least six months but not more than two years. This is the only means by which a sentence of indefinite imprisonment may be determined: Sentence Administration Act, s 74(1) and (2)(a).
The short point arising out of that review of the statutory scheme is that because the non‑parole period of the previous parole term had already been served as had a further period on parole, then although the term imposed on 26 November 2001 was, backdated to 12 January 2001, ordered to be served cumulatively, the indeterminate term would be served concurrently with any unexpired portion of the 1993 term and eligibility for parole would not be postponed beyond the point at which it would have occurred even had all elements of the sentencing been allowed to be served concurrently. Ground 4 could not therefore be made out.
Finally, I wish to expressly associate myself with the observations made by Templeman J about those parts of ground 2 in respect of the indefinite imprisonment which complain that this was an order which should not have been made because her Honour did not conclude that the

applicant was a person who should never be released, but said that the authorities would be expected to continue to work towards his ultimate rehabilitation. There is no inconsistency, in my opinion, between the imposition of an indeterminate term having regard to the criteria set out in the Sentencing Act, s 98, as explained in the decisions of the High Court leading up to McGarry v The Queen (2001) 184 ALR 225 and in the decisions of this Court both before and after McGarry, and the expression of hope that despite all current indications the applicant might be able to be sufficiently rehabilitated to warrant his release on parole, given that it is always by successfully serving a period on parole that indefinite imprisonment will be finally ended. The imposition of indefinite imprisonment is not a negation of eligibility for parole, which is necessarily inherent in such a term and becomes available immediately the indefinite term commences.

TEMPLEMAN J: The applicant was sentenced by Kennedy DCJ on 26 November 2001 to terms totalling 9 years' imprisonment. The learned sentencing Judge declined to make a parole eligibility order and made an order pursuant to s 98 of the Sentencing Act 1995 for the indefinite imprisonment of the applicant.
The applicant seeks leave to appeal. He contends that he should have been made eligible for parole and that accordingly, no order for indefinite imprisonment should have been made.
The applicant was charged with five offences committed on 3 January 2001. In summary, they were that on that date, at West Perth the applicant:
1.stole the complainant's motor vehicle with actual violence and at the time, used personal violence to the complainant;
2.unlawfully detained the complainant;
3.unlawfully assaulted the complainant and thereby did her bodily harm;
4.made a threat to unlawfully kill the complainant with intent to prevent her doing an act which she was lawfully entitled to do; and
5.wilfully and unlawfully destroyed the complainant's motor vehicle.
The complainant was a 44-year-old woman of medium height and build who had the misfortune to suffer from heart problems.

At about 5.10 pm on 3 January 2001, the complainant had reversed her motor vehicle from a basement car park at her place of work in West Perth. As she was reversing, she heard a noise coming from the rear of her vehicle. The complainant then saw the applicant, who was holding onto one of his feet. He was hopping up and down as if the complainant had reversed her vehicle over his foot.
It was the prosecution case that the complainant had not in fact run over the applicant's foot but that he pretended she had done so in order to cause her to stop and thereby provide him with an opportunity to gain access to her vehicle.
Counsel for the applicant informed Kennedy DCJ that the applicant asserted that his foot had indeed been run over "which started this series of events …". However, that fact was never put formally in issue: and the Judge apparently did not accept the applicant's assertion. As she said in her sentencing reasons:
"(The applicant) maintains that (the complainant) had, (run over his foot) but she denies that and it seems to me that she would know if that were the case."
Although the matter does not seem to me to have any bearing on the outcome of this appeal, I proceed on the basis that the Judge decided that the complainant had not run over the applicant's foot.
After the complainant had noticed the applicant holding onto his foot and hopping, she stopped her vehicle and wound down her window and spoke with him. During the conversation, the applicant approached the complainant. He punched her heavily to her face through the open window, causing her to fall backwards into the vehicle. He then opened the driver's door, pushed the complainant into the front passenger's seat and got into the driver's seat. He then locked the vehicle with the central locking system. The applicant said to the complainant "You're coming with me, bitch". He then drove out of the car park and into the West Perth area. The complainant began to scream and to claw at the applicant with her nails in an attempt to stop him driving away with her.
As the applicant drove he yelled to the complainant "You're going to die. I'm going to kill you. You're going to die". On numerous occasions while he was driving erratically through the West Perth area, the applicant stopped the vehicle and punched the complainant about the head and body in an effort to disable her and to render her incapable of offering further resistance. The applicant also drove directly at parked vehicles to scare the complainant into submission. On at least one occasion, the applicant drove the complainant's vehicle in such a way that it struck the side of parked vehicle. Eventually, the complainant pulled the rear vision mirror away from the windscreen and began to hit the applicant about the head with it.
After about 10 or 15 minutes of being subjected to the applicant's violent behaviour, the complainant managed to place her leg over to the driver's side of the vehicle and to press the clutch pedal. This caused the vehicle to come to a halt. The applicant then unlocked the vehicle and yelled to the complainant to get out. The complainant opened the passenger door, got out of the vehicle and collapsed under a nearby tree.
The applicant then drove off in the complainant's vehicle. A short time later, he abandoned the vehicle in Subiaco and attempted to destroy it by setting fire to the front seat. The fire self-extinguished before the vehicle was burnt out. The vehicle was however written off.
The complainant was left with two black eyes, cuts to the inside of her mouth and bruising to her nose and face. There was a report from the complainant's cardiologist, which Kennedy DCJ accepted, to the effect that during these events, the complainant suffered a heart attack. It was the cardiologist's opinion that although the complainant may have been suffering from some pre-existing coronary condition, the assault was an undoubted factor in provoking the acute heart attack.
The complainant underwent coronary artery bypass surgery on 13 March 2001.
The applicant was arrested on 12 January 2001, some nine days after he committed these offences. He has been in custody since then.
The applicant did not dispute that the offences were so serious as to warrant a term of imprisonment. Indeed, no complaint is made about the sentence of 9 years' imprisonment imposed by the learned Judge. That was made up of 4 years for stealing the complainant's motor vehicle with actual violence and using personal violence to the complainant; 3 years for unlawfully detaining the complainant and 2 years for unlawfully assaulting her and causing her bodily harm. Those sentences were to be served cumulatively on each other. The applicant was sentenced to 3 years' imprisonment for threatening to kill the complainant and 2 years' imprisonment for the unlawful destruction of her motor vehicle. The last two sentences were concurrent with each other and with the total of 9 years' imprisonment imposed in respect of the first three offences.
The sentences were made cumulative upon the unexpired parole term of an existing sentence (to which I shall refer in due course). The sentence was to commence on 12 January 2001, the date on which the applicant was taken into custody.

The applicant's criminal history

The applicant has a considerable criminal history. He was first imprisoned in 1984 in New South Wales. He was imprisoned again in 1986 in Queensland: and again in New South Wales, in 1991. These terms of imprisonment were all imposed in respect of offences of dishonesty, involving burglary.

A similar previous offence

On the afternoon of Tuesday, 29 November 1992, the applicant committed similar offences against another complainant, a 37‑year‑old supporting mother. That complainant left her work and went to her vehicle in a car park in East Perth. The applicant approached her. He was armed with a knife. He ordered the complainant to get into the vehicle and move to the passenger's seat. He sat in the driver's seat and whilst detaining her in the vehicle, he drove it away.
He held the knife at the complainant during the car journey, demanding that she empty the contents of her handbag. He took all her money, being about $85. While doing so, the applicant saw the complainant's bankcard. He demanded her PIN number. He then drove to various branches of her bank: and ultimately to a branch at Gosnells, where he forced her at knifepoint to the automatic teller machine and required her to withdraw the total balance of her account which was $120. He took that money from her.
The applicant then required the complainant to get back into the motor vehicle. He drove her to an isolated area along a dirt track off a road known as Zigzag Road in Kalamunda. The applicant then forced the complainant out of the vehicle and dragged her down an embankment into a gully out of sight of the road. He forced her to undress, threatening her with a knife. She was at this time naturally terrified of what he was going to do. He then began to fondle her and squeeze her breasts and he inserted his fingers into her vagina.
He then forced the complainant to lie down and he had full sexual intercourse with her. He then gathered together all of the complainant's clothes except her bra and left, taking her other clothing and her motor vehicle. Throughout the ordeal, he was in possession of a large knife with which he threatened the complainant.
In her distraught condition and almost naked, the complainant had to walk to the roadway and obtain assistance from a passing motorist.
The applicant was sentenced to 12½ years' imprisonment for these offences. He was made eligible for parole.

The applicant's subsequent conduct

The applicant was released to parole on 10 January 1999. The parole period was 2 years: the maximum period permissible.
On 15 June 1999, the applicant was sentenced to 9 months' imprisonment for house burglary. He was released to parole again on 14 December 1999.
It follows that the applicant committed the offences of 3 January 2001 while he was on parole.

The sentencing process

The applicant came before Kennedy DCJ on 19 July 2001, when he was arraigned and pleaded guilty to the five offences committed on 3 January 2001. Counsel for the Crown outlined the facts to the Judge. Counsel for the applicant then provided her Honour with a booklet of references, a pre-sentence report, a psychiatric and a psychological report.
Counsel then made a plea in mitigation on behalf of the applicant. In the course of that plea, counsel submitted that although there were similarities between the latest series of offences and those committed in 1992, there were significant differences: the latest offences were not planned and did not involve a weapon.
The Crown had already indicated by 19 July that an order would be sought for the indefinite imprisonment of the complainant. That being so, the Judge adjourned the matter so that full submissions could be made and evidence taken in relation to the issues arising on such an application.

The sentencing process continued on 14 and 29 August, 11 September, 31 October and 1 November 2001. On those days, the Judge received written and oral submissions from counsel for the Crown and the applicant's counsel. Her Honour received also the transcript of the sentencing of the applicant for the 1992 offences, psychiatric reports and psychological assessments provided by the prosecution and the defence and a pre-sentence report. The Judge was also provided with the applicant's criminal history, references from the mother of his young child, from another woman friend and from three work colleagues. In addition, the Judge received a report from a psychologist which had been prepared for sentencing the applicant in 1993. The applicant had been referred to the same psychologist in relation to the most recent offences. The Judge took evidence from all of the experts, who were examined and cross-examined.
The Judge also had the complainant's victim impact statement, a letter from her mother, a report from her cardiologist and from a psychologist whom she had consulted following the commission of the offences against her by the applicant.
Having undertaken the sentencing process in this way, the Judge reserved her decision which she delivered nearly four weeks later, on 26 November 2001. The Judge then imposed the sentences totalling 9 years' imprisonment to which I have referred above. She declined to make the applicant eligible for parole and made an order of indefinite imprisonment. Her Honour's reasons are set out in a lengthy and comprehensive judgment in which she reviewed carefully the evidence and other materials which had been placed before her.

The statutory provisions relating to parole and indefinite imprisonment.

A superior court has a discretion to order an offender to be imprisoned indefinitely under s 98(1) of the Sentencing Act. The court may make such an order if it:
(a)sentences an offender for an indictable offence to a term of imprisonment;
(b)does not suspend that imprisonment; and
(c)does not make a parole eligibility order in respect of that term.
By s 98(2), indefinite imprisonment must not be ordered unless the court is satisfied on the balance of probabilities that when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society, or a part of it, because of one or more of the following factors:
(a)The exceptional seriousness of the offence;
(b)The risk that the offender will commit other indictable offences;
(c)The character of the offender and in particular –
(i)any psychological, psychiatric or medical condition affecting the offender;
(ii)the number and seriousness of other offences of which the offender has been convicted;
(d)Any other exceptional circumstances.
Although the court is required only to be satisfied on the balance of probabilities about the danger to society presented by the offender, the majority of the High Court has held in McGarry v The Queen (2001) 184 ALR 225, at par 23, that:
"More than the probability of further offending must be shown. Read as a whole, and giving due weight to the repeated reference to 'exceptional', the subsection requires attention to whether, were the offender to be released at the end of the nominal sentence, the offender would engage in conduct, the consequences of the commission of which would properly be called 'grave' or 'serious' for society as a whole, or for some part of it. Then, and only then, could it be concluded that the offender would be a 'danger to society, or a part of it'."
Given that a court may not impose indefinite imprisonment if it makes a parole eligibility order, the question whether to grant parole must be addressed before any question of indefinite imprisonment can arise.
As to parole, s 89(2) of the Sentencing Act provides that:
"(2)In determining whether it is appropriate to make a parole eligibility order, a court may have regard to all or any of the following:
(a)the seriousness and nature of the offence;
(b)the circumstances of the commission of the offence;
(c)the offender's antecedents;
(d)circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;
(e)any other reason the court decides is relevant."
It is apparent that there is some overlap between the criteria for parole eligibility and those for indefinite imprisonment. This is in the sense that the circumstances of the offence, the offender's antecedents and his or her personal circumstances fall to be considered both in relation to parole and indefinite imprisonment.
I make that observation, because on the hearing of this application, counsel for the applicant pointed to a comment made by Kennedy DCJ on 19 July 2001 in which she arguably accepted a submission made by counsel for the applicant to the effect that submissions made in respect of parole and indefinite imprisonment would overlap. Her Honour said "I know a lot of these things overlap".
It was suggested by counsel for the applicant before this Court, that the Judge had in some way merged the questions of parole and indefinite imprisonment: or that her Honour had not addressed those issues in the way required by the statutory scheme.
In my view, any such suggestion is entirely without foundation. Her Honour's remarks were made at the very commencement of the sentencing process before she had had the opportunity to review the authorities. Indeed, the decision of the High Court in McGarry was not delivered until 24 October 2001, some three months later.
Furthermore, it is clear from her Honour's reasons that by the time she came to determine the appropriate sentence, having considered all the evidence to which I have referred above, she had given careful consideration to the authorities and was fully familiar with the principles she was required to apply.

The Judge's reasons in relation to parole

The Judge dealt with the questions of the seriousness and nature of the offences and the circumstances of their commission, together. She pointed out that the offences were of considerable actual and threatened violence perpetrated on a woman the applicant had never met and who had offered him no possible provocation or encouragement. The offences had been committed in broad daylight in what would be regarded as a very safe section of the city. The applicant had desisted only when it became obvious to him that the complainant was, as her Honour put it, "going to be more trouble than she was worth and that despite his best endeavours by punching and threatening her and driving wildly, she was not going to go quietly".
Her Honour found it impossible to believe that the offence was unplanned and that the applicant was "dissociating" at the time.
The Judge then summarised the applicant's antecedents. In so doing, her Honour referred to the circumstances of the 1992 offences, and the sentencing remarks relevant to those offences.
The Judge then referred to the report of a clinical psychologist, Mr Cicchini, who referred to the results of psychological testing. These results revealed that the applicant's personality manifested features of sadistic aggression as well as anti-social and self-defeating traits.
The Judge noted also a comment made by Dr Srna, a psychiatrist called by the Crown who agreed with Mr Cicchini's view and placed the applicant in the category of psychopathic offenders.
The Judge then turned to the circumstances relevant to the applicant, or which might be relevant to him at the time when he would be eligible for release on parole, if such an order were made.
As to that, the Judge referred to the Sex Offenders Treatment Programme which the applicant had undertaken in 1998. Although there was no formal report about that matter, her Honour noted that it was referred to in the psychological reports and in the Justice Department files which had been subpoenaed. It was clear from the material that the applicant had not engaged properly in the treatment programmes.
Furthermore, in a report of 10 July 2001 from the applicant's Community Corrections Officer, it was apparent that the applicant's participation in a Sex Offender's Maintenance Programme which he had been required to undertake while on parole, had been "unreliable and reluctant". The Community Corrections Officer was of the view that the applicant could not be recommended as a suitable candidate for further supervision on parole.
The applicant's participation in the Maintenance Programme had commenced on 14 January 1999, this being four days after his release to parole. By the time the applicant was returned to custody on 14 June 1999 he had attended only five of the twelve sessions which he was required to attend.
The Judge referred to reports from two psychiatrists, one of which she regarded as negative; the other at best, hopeful:
"Suffice it to say that at the very best, they are guarded about (the applicant's) possibility of not re-offending."
The Judge concluded her reasons relating to parole in the following way:
"The philosophy of the Sentencing Act suggests a bias towards eligibility for parole. The bias towards eligibility does not, however, mean that the court must start from a presumption in favour of the grant of parole. The bias towards eligibility 'stands for the proposition that provided there is material for the sentencing Judge which points positively towards the appropriateness of parole, the discretion to grant parole will be exercised in favour of the offender unless there is sufficient reason not to exercise that discretion in his or her favour': Garlett v The Queen [2000] WASCA 72 at 87."
Her Honour then went on to refer to statements made by the applicant to the Court of Criminal Appeal in 1994, when he had sought to appeal against the sentence of 12½ years imprisonment imposed previously. The applicant had said he believed very strongly that his drug and alcohol intake had been the cause of his offending. The applicant had also said, in relation to a psychological report, that it had given him a better understanding and approach to the future, especially towards his rehabilitation, "to the extent of knowing that nothing like this will ever happen again …". The applicant said:
"I now wait patiently to prove to the people, the courts and the public that I can be a responsible and productive citizen on my release."
As the Court of Criminal Appeal had said, the applicant's desire for rehabilitation was one of the factors which militated in favour of parole: and it was another indication of remorse.
But in the present case, the Judge said:
"In all the circumstances, including the evidence of Dr Srna to which I will refer, I am not prepared t give him further parole."
It was Dr Srna's view, to which her Honour referred later in her reasons, that rehabilitation of offenders such as the applicant was "almost impossible but what happens over a period of 20 to 30 years is that they 'burn out' …".
Given that the offender had previously been made eligible for parole on the basis of his prospects of rehabilitation; and given that he had failed to comply with his parole conditions and had committed very similar serious offences while on parole, it is clear that the applicant's prospects of rehabilitation were very slight indeed.
In those circumstances, I consider that there was ample material before Kennedy DCJ upon which she was entitled to exercise her discretion against making a parole eligibility order.

The appeal in relation to parole eligibility

In his grounds of appeal, the applicant contends that Kennedy DCJ erred in failing to make an order for parole eligibility given:
(a)the applicant's antecedents and prognosis;
(b)the material from expert psychological and psychiatric witnesses which indicated that a period of parole would be of assistance to the applicant in changing his pattern of offending;
(c)the fact that the applicant had only been convicted of one series of violent offences, albeit of a similar nature to those the subject of the head sentence.
In my view, there is no substance to those grounds. As to (a), I have already noted the applicant's antecedents, which included a similar series of offences committed in 1992, the failure of the applicant to rehabilitate himself, despite being given the opportunity of the Sex Offenders Treatment Programme and the Maintenance Programme and the fact that he committed the 1999 offences while on parole. I have referred also to the gloomy prognosis of Dr Srna. Although other experts were more optimistic (albeit guardedly so) the Judge was entitled to prefer Dr Srna's evidence as she did.
I make similar comments in relation to ground (b).
The evidence of Dr Srna which was most favourable to the applicant, was given in answer to questions about the applicant's risk of re-offending upon release from custody in 5, 10 or 15 years time. In answer to the 5 year question, Dr Srna said:
"Should the Court consider a finite sentence I recommend that a lengthy period of parole with a graded discharge into the community with active participation of the offender in continuing programmes mentioned above as well as substance abuse monitoring should be an inseparable part of re‑socialisation programme for this man."
In response to the 10 and 15 year questions, Dr Srna said:
"The release from custody in 10 or 15 years should be linked with similar measures as (above). Ideally, once and if a finite sentence was established the decision on the length of this offender's stay in custody should be determined on his progress in his rehabilitation. It is my view that unless a similar program is put in place and he had adhered to it religiously, the release of this man would pose a significant risk to the community."
That evidence does not support the proposition that a period of parole would assist the applicant in changing his pattern of offending. Rather, it is to the effect that the applicant should not be discharged into the community except under strict conditions of supervision and the close monitoring of his progress towards rehabilitation. In other words, it is not a matter of parole being of assistance to the applicant in changing his pattern of offending: rather, he should not be released into the community until he has demonstrated a commitment and success in rehabilitation, which has been conspicuously absent thus far.
As to (c): it is obvious that the applicant had "only" been convicted of one series of violent offences. But this was hardly a factor to which Kennedy DCJ might have been expected to give great weight, given the seriousness of the previous offence and the similarities between those offences and the most recent offences.
The main thrust of the applicant's argument was that it would be preferable for the applicant to be released into the community after a comparatively short period of imprisonment, subject to the kind of supervision available on parole, rather than to have him detained longer in prison and then released into the community without supervision. That being so, the argument proceeds, it is to be inferred from Kennedy DCJ's decision, that she must have decided that in all the circumstances, an order of indefinite imprisonment was appropriate: and then justified such an order by declining eligibility for parole.
In my view, the argument that it is preferable for an offender to be supervised in the community rather than being released without supervision, can never be determinative of the question of parole eligibility. If it were, then parole would almost always be granted. However, the argument is only one of the matters to be taken into account in determining eligibility for parole. The Court is required to have regard to all or any of the circumstances set out in s 89(2)(a) to (d) of the Sentencing Act, and "any other reason the Court decides is relevant".
In the present case, I see no basis for drawing the inference that Kennedy DCJ decided that an order for indefinite imprisonment was warranted and then declined parole eligibility accordingly. It is clear from her Honour's detailed reasons that she dealt first with the question of parole. As I have already observed, she was entirely justified in declining to grant parole. Her Honour then went on to consider the question of indefinite imprisonment.

The Judge's reasons for making an order for indefinite imprisonment

The Judge set out the relevant provisions of s 98 of the Sentencing Act. She went on to note the exceptionally serious nature of the offences in question.
Her Honour then referred to the risk that the applicant would commit other indictable offences. As to that, her Honour said:
"… As to subparagraph (b), all of the experts are of the view that there is a risk of him re-offending and these offences were committed while on parole for similar offences. Furthermore, the choice of victim has no possible rational basis, his offending amounts to random acts of terrorism. There is really no rational explanation for what triggers such offending and that is both chilling and disturbing."
Before considering the applicant's character, her Honour referred to the decision of the High Court in McGarry (supra). In so doing her Honour set out the appropriate test from the judgment of the majority, to which I have referred above. Her Honour then referred to Chester v The Queen (1988) 165 CLR 611 in which the High Court considered the former s 661 of the Criminal Code which authorised the detention of habitual criminals during the Governor's pleasure. In that case, as in McGarry, the High Court referred to the stark and extraordinary nature of punishment by way of indeterminate detention, the term of which is terminable by executive rather than by judicial decision. The High Court said that this required the sentencing Judge to be "clearly satisfied by cogent evidence that the convicted person is a constant danger to the community" because of the likelihood that he or she will commit further crimes of violence.
Pausing there, there can be no doubt that Kennedy DCJ was well aware of the heavy burden of responsibility placed upon her when considering an order for indefinite imprisonment. With that in mind, her Honour went on to review the expert evidence, both favourable and unfavourable to the applicant. It is not necessary to refer to all of that evidence. It is sufficient to observe, again, that her Honour preferred the evidence of Dr Srna, as she was entitled to. In that evidence, Dr Srna expressed the view that the applicant had a psychopathic personality disorder and that the Sex Offenders Treatment Programme would not be particularly successful for the applicant. Dr Srna said also that it was not unusual for persons having a psychopathic personality disorder not to start offending until in their forties (the applicant had started violent offending at the age of 29) and to carry on for a number of years. Dr Srna said, as I have already noted, that rehabilitation was almost impossible but that over a period of 20 to 30 years, such persons "burn out".
Kennedy DCJ also referred in great detail to the applicant's personal circumstances. In so doing, her Honour made an observation which is of particular significance in my view. She said:
"(The applicant) was neatly dressed and perfectly presentable. He is a polite man and his behaviour is superficially appropriate but, and this is difficult to describe, there is a dimension of usual effect missing. Descriptions such as lack of empathy and remorse and a finding that he was saying what he was expected to say could describe many offenders, but here, it has a different quality. He is disinterested in his offences and his victims and, for the first time, I have seen what psychologists mean when they talk of 'shallow effect'."

Her Honour went on to note that most of the assessors had reported the applicant as having "shallow effect". One expert had described this as "… not having a strong experience of his own emotions". Her Honour went on:
"(The applicant) may verbalise certain things, but he does not understand what he is saying, he is in a foreign land. Further, I do not accept (the applicant's) excuses for his failures in relation to the Sex Offender Treatment Program and the Maintenance Program."
In my view, these are most important findings. They were made by Kennedy DCJ from her own observations of the applicant when he gave evidence. They are findings which the applicant has not sought to challenge.
I consider that Kennedy DCJ was entirely justified, on the evidence, to reach her conclusion, which she set out in the following terms:
"Nevertheless, for the reasons I have given, all of the factors in s 98(2)(a)-(c) have been made out and I am satisfied on the balance of probabilities that when (the applicant) would otherwise be released from custody, he would be a continuing danger to society. He would be very likely to engage in conduct the consequences of the commission of which would properly be called 'grave' or 'serious' for society as a whole. The magnitude of the danger justifies the exceptional step that I intend to take in ordering him to be imprisoned indefinitely.
I am mindful of the stark and extraordinary nature of this punishment and that the judiciary thereby gives up control. I do it because I believe it is necessary and that, otherwise, the risk the community is being asked to take is far greater than it can be expected to take. I acknowledge that in all human activity, there is a risk but, on this occasion, this is not a risk that I am prepared to ask the community to take. Accordingly, I do this because I believe it is necessary, but I stress that it was never the evidence before me that Mr Britten should never be released and I expect the authorities to continue to work toward his rehabilitation."
In my view, it is clear from the first of the paragraphs quoted above, that her Honour was applying the test laid down by the majority of the High Court in McGarry.

The appeal in relation to the order of indefinite imprisonment

In ground 2, the applicant contends that Kennedy DCJ erred by imposing indefinite imprisonment despite the following matters:
(a)the applicant's antecedents and the limited pattern of his violent offending;
(b)the material from expert witnesses which indicated that there was a distinct prospect of treatment in the (applicant) thereby changing his pattern of offending;
(c)her Honour's conclusion that the applicant was not a person who should never be released and should expect the authorities to continue to work towards his rehabilitation.
As to (a) and (b) above, I do not think I can usefully add to the comments which I have already made: namely that there was evidence before the Judge which she was entitled to take into account, which justified the conclusion that on the balance of probabilities (as explained in McGarry) when the applicant would otherwise be released from custody in respect of the nominal sentence, he would be a danger to society.
Ground (c) is a reference to the second of the paragraphs from her Honour's reasons which I have set out above. This ground, in my view, reflects a misconstruction of s 98 of the Sentencing Act. Indefinite imprisonment is not necessarily imprisonment for life. An order for indefinite imprisonment recognises the possibility that an offender may be rehabilitated to an extent sufficient to justify his or her return to the community, albeit after the expiration of the nominal sentence which would otherwise be proportional to the relevant degree of criminality. That being so, there is no inconsistency in a sentencing Judge making an order for indefinite imprisonment but nevertheless acknowledging that the offender may yet be rehabilitated.

Conclusion

For all these reasons, I consider that the application for leave to appeal should be refused.
MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Templeman J and for the reasons his Honour has given, I am also of the view that the application for leave to appeal should be refused.