Buckley v The Queen
[2005] HCATrans 995
[2005] HCATrans 995
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B86 of 2005
B e t w e e n -
JASON CHARLES BUCKLEY
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 9 DECEMBER 2005, AT 10.00 AM
Copyright in the High Court of Australia
MR P.E. SMITH: May it please your Honours, I appear for the appellant. (instructed by Terry Fisher & Company)
MRS L.J. CLARE: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))
GLEESON CJ: Yes, Mr Smith.
MR SMITH: Your Honours, the appellant submits that three key errors appear in the sentencing process here. The first one is that the learned sentencing judge made no reference to the principles laid down by this Court concerning sentences of indefinite detention. In fact, those cases were not even referred to at the sentence before his Honour. It is submitted the Court of Appeal on error held it was not necessary to refer to those principles or make findings in accordance with such principles.
KIRBY J: There is no suggestion that there is anything peculiar in the Queensland legislation that makes those principles inapplicable in Queensland?
MR SMITH: No, your Honour. The second point to be raised by the appellant is that section 168(1) of the Penalties and Sentences Act requires the court not only to give reasons but “detailed reasons for imposing the [indefinite] sentence”. The submission will be the learned sentencing judge failed to demonstrate in his decision attention to each of the statutory preconditions to the exercise of power which, in my submission, is essential before that power can be exercised.
GUMMOW J: That is certainly the way the then Solicitor‑General, Mr Keane, emphasised it to us when we were considering the validity of these provisions, I think.
MR SMITH: That is in the case of Fardon, I assume, your Honour.
GUMMOW J: Yes.
MR SMITH: Of course, Fardon concerned different legislation, ie, legislation which enabled the Executive to apply to a court to keep a prisoner in after their sentence had been finished but the principles are similar.
GUMMOW J: Are those sections in this Act?
MR SMITH: No, they were in an Act called the Dangerous Offenders Prisoners Act.
GUMMOW J: Right.
MR SMITH: I just cannot recall the precise name, your Honour, but it is a different Act to this one.
GUMMOW J: How long have these provisions been in this Act?
MR SMITH: These came in in 1992. Prior to that there were detentions at Her Majesty’s pleasure. There were a number of different pieces of sentencing legislation in Queensland but the new government as it then was brought in the Acts together and passed this legislation. Anyway, that is the second point ‑ ‑ ‑
GUMMOW J: Anyhow, these sections were there when the Act was originally enacted. That is what I am trying to find out.
MR SMITH: They came in at that stage, your Honour, yes. The final point for the appellant, your Honour, is that her Honour Justice Holmes at page 341, paragraphs [32] to [39] of the appeal book, identified a number of, or at least three errors in the findings by his Honour, ie, that my client lacked insight and remorse because he boasted about the offences and the indictment and simply blamed alcohol for the offences and secondly, he killed animals after having sex with them and whilst that might seem a little trivial to start with there is a chilling aspect to that, if that was the truth. One could see that that was a concerning feature of the case but the majority of the Court of Appeal failed to consider the sentencing discretion afresh when, in my submission, they were required to do so after those errors were identified, which were material.
GUMMOW J: You refer us to a New Zealand case called R v Leitch. It is a decision of five members of the Court of Appeal of New Zealand.
MR SMITH: Yes, your Honour.
GUMMOW J: What do you get out of Leitch?
MR SMITH: At page 429 of that decision it was held that before imposing an indefinite sentence a court should see whether the finite sentence adequately dealt with the issues, at point 25 to 30, where it was said:
The Court “may” pass a sentence of preventive detention. At that point, when weighing the exercise of the discretion, the Court will ordinarily consider whether the protective purpose of preventive detention could reasonably be met by an available finite sentence of imprisonment.
KIRBY J: Unfortunately, your predecessor put it the other way around at the trial.
MR SMITH: He did, at page 29, your Honour, and that seemed to infect, in a sense, what flowed on from that.
GLEESON CJ: That is relevant to some information I was going to ask for. It is only, in one sense, of marginal significance but it is a background matter that the Queensland judges would have had well in their minds that we do not. It is not so accessible to us. Would you mind at some point just telling us by reference to the appropriate statutory provisions what were the maximum available penalties for the offences of which your client was convicted.
MR SMITH: Certainly, your Honour. I can do that now actually.
GLEESON CJ: All right.
MR SMITH: If one looks at the indictment, which is, I think, at page 1B of the record – I will just get the Criminal Code, your Honours. Rape is a life offence in Queensland.
GLEESON CJ: Rape, life?
MR SMITH: Yes.
GLEESON CJ: Just pausing there, of how many offences of rape was he convicted?
MR SMITH: Five, I think, your Honour, five offences of rape.
GLEESON CJ: So he could have been sentenced to life imprisonment five times over, as it were.
MR SMITH: He could have, except his Honour found that life was not appropriate because of the plea of guilty at page 113 of the decision. His Honour said that there would not be sufficient credit given to the fact my client did not want a trial if life was imposed.
GLEESON CJ: What is the statutory provision that makes life the ‑ ‑ ‑
MR SMITH: Section 348 of the Code as it then was. There was an amendment in late 2000 which extended the definition of “rape” in Queensland.
GUMMOW J: Just a minute, 348?
MR SMITH: Section 349 is the present provision. However, the relevant provision, as I recall it, was 348 as at February 1999 to March 2000.
GUMMOW J: I have Reprint No 2 of the Code, which is August 1997.
MR SMITH: That would be the correct provision, your Honour.
GUMMOW J: Section 348 said:
Any person who commits the crime of rape is liable to imprisonment for life.
MR SMITH: Yes.
GUMMOW J: And rape is defined in 347.
MR SMITH: Yes, I think that has the definitions of “consent” and the like and the definition of “rape”.
GLEESON CJ: So the relevant reprint of the Criminal Code is Reprint 2?
MR SMITH: Yes, it would be for those provisions, your Honour.
KIRBY J: I have Reprint 5 and I think the Chief Justice might have had that. Have there been any relevant amendments to section 349 in the meantime, do you know?
MR SMITH: The one I have is a consolidated version. Do you have a date on the print?
KIRBY J: It is reprinted as in force 1 April 2005. It presumably is the current issue.
MR SMITH: It is. I am confident there are no relevant amendments since that reprint.
GLEESON CJ: This is the bane of our lives, Mr Smith. We always need to get the right reprint because sometimes we have to reproduce sections in our judgments.
MR SMITH: I understand that. In both outlines we only reproduced the relevant provisions of the Penalties and Sentences Act. If the matter is reserved today, I would undertake to extract the relevant provisions if that is convenient.
GLEESON CJ: Thank you. We are just working our way through these. I am just trying to work out what was the maximum – what I am trying to do is to work out the theoretical boundaries within which the sentencing discretion operated here. So we have five offences, each of which carried life.
MR SMITH: Yes.
GLEESON CJ: Then the next one is ‑ ‑ ‑
MR SMITH: The burglary offence with circumstances of aggravation, ie, count 3, carried life.
GLEESON CJ: Pursuant to what provision?
MR SMITH: That was pursuant to section 419 of the Criminal Code.
KIRBY J: What is the maximum for that ‑ ‑ ‑
MR SMITH: Life.
GLEESON CJ: So the circumstances of aggravation are that it was night‑time and it was accompanied by violence?
MR SMITH: And it was a break.
GUMMOW J: Section 419(2).
MR SMITH: Well, (2) is the break provision.
GUMMOW J: Yes, (2) is break, (3) is ‑ ‑ ‑
MR SMITH: Night-time, which is the old burglary offence of course, and the use of violence are both under subsection (3). I will just check the indecent assault, your Honour. Mine is repealed. It will be in that reprint your Honour has. I have a feeling – I had better not say so – it is not life though; it is less than that.
GUMMOW J: They do not believe in ‑ ‑ ‑
GLEESON CJ: I would like to know.
GUMMOW J: Indecent assault?
MR SMITH: Section 337(1), your Honour.
GUMMOW J: Sexual assault is 337, is it not? Ten years it looks like – 337(1).
MR SMITH: Yes.
GUMMOW J: Grievous bodily harm?
MR SMITH: Count 6, unlawfully doing grievous bodily harm, was 14 years at the relevant time.
GUMMOW J: What section was that?
MR SMITH: That is 320, your Honour.
GUMMOW J: Fourteen years.
MR SMITH: Yes. So they are those provisions that I will undertake to obtain the wording of the sections at the relevant time and have them forwarded.
GLEESON CJ: There is one other question I would like to ask you.
MR SMITH: Certainly.
GLEESON CJ: What does “life” actually mean in Queensland?
MR SMITH: “Life” in Queensland means that one is eligible to apply for parole at 15 years. The provision which provides for that is the corrective services legislation.
GLEESON CJ: Could you give us a reference to that? Again, this is the sort of thing that is bread and butter to the Queensland judges but ‑ ‑ ‑
MR SMITH: Yes.
GUMMOW J: This is the Corrective Services Act 2000?
MR SMITH: Yes, your Honour. It does not matter when the prisoner was sentenced. It applies to prisoners who were sentenced before that legislation. Section 125(2)(b) would be the relevant provision.
GLEESON CJ: This may be perhaps a matter more for Mrs Clare than for you, but what is going through my mind at the moment is this; here you have a person who was convicted of offences that between them carry maximum terms of six times his life and 14 years on top of that. If the consequence of a sentence of life imprisonment is that you are eligible for parole after 15 years, why does not the imposition of a life sentence together with the operation of the parole system provide a regime in which the safety of the community can be appropriately taken into account?
MR SMITH: It can. I mean it is up to the Parole Board to consider Mr Buckley’s application for parole at the relevant time.
GLEESON CJ: Would it be right to say that a matter relevant to an application for parole would be the safety of the community?
MR SMITH: Certainly. In fact, I am fairly confident that might even be in the legislation or certainly guidelines laid down by Corrective Services.
GLEESON CJ: Well, to put it bluntly, and there may be an effective answer to this, why would you not sentence him to life and let the parole system deal with the issues of protection of the community, which are obviously live issues in the case of your client for reasons that are too obvious to be stated.
MR SMITH: Well, because if I had been asked the same question by the sentencing judge I would have submitted that life was too heavy for my client, in light of his antecedence and I mean more particularly his criminal history. He had never been sentenced to gaol previously.
GLEESON CJ: By his criminal history do you mean his record of convictions or do you mean the conduct that he admitted to in his interviews with the psychiatrist?
MR SMITH: I mean his criminal convictions.
GLEESON CJ: Why limit it to that? What if he had admitted to the psychiatrist that he had killed somebody previously but he never been convicted of it?
MR SMITH: Well, that would be entirely relevant.
GLEESON CJ: He has admitted to committing a very large number of crimes of which he has never been convicted. I presume bestiality is a crime in Queensland?
MR SMITH: It is. However, the offences to which he admitted, for which he was not convicted, were not of a particularly serious kind, in my submission. The rapes themselves were serious ones but there was no deadly weapon involved. The injuries – I mean physical ones – were not usually significant although MG of course did suffer that broken leg but fortunately for her that had fully recovered, as I set out in my reply. There was no attempt to kill charged with these rape offences. There was the plea of guilty to which full credit should have been given, your Honour, and that is why, as I said earlier, the learned sentencing judge agreed that life was an inappropriate sentence here.
GLEESON CJ: On the matter of credit for the plea of guilty, what were the circumstances in which he was arrested?
MR SMITH: He declined to give his DNA but the police surreptitiously obtained his DNA from, I think, a cup or something - I am not sure exactly what it was – and that matched up to DNA found on the victims.
GLEESON CJ: Do you have legislation in Queensland of the kind that I think exists or used to exist in New South Wales that said the extent of the credit you get for a plea of guilty depends upon the circumstances which may include whether or not you were caught red‑handed?
MR SMITH: There is no legislation specifically which says that. However, as a sentencing principle in Queensland that is relevant.
GLEESON CJ: But I gather from what you say that there is no legislation in Queensland that says “life” means life?
MR SMITH: “Life” does mean life but one is eligible to apply for parole at 15 years.
GLEESON CJ: Let me put it differently. There is no legislation in Queensland that says that for certain life sentences there is no possibility of parole?
MR SMITH: No, I do not think so, your Honour. As I understand the situation, the usual parole period before one is actually considered for parole, notwithstanding the Act, is about 19 years if one is going to achieve parole but there are many people in prison who never achieve parole on a life sentence.
GLEESON CJ: Because they are a danger to the community, presumably.
MR SMITH: Presumably.
GUMMOW J: But at page 116 we see the reasoning process which was to go first to the indefinite sentence and then say what the finite sentence would have been, which seems an odd way of going about it.
MR SMITH: That might, to an extent, reflect the submission that had been made to his Honour, that is the approach, the way in which the question should be asked.
GUMMOW J: But does the Act require that?
MR SMITH: The Act requires - section 163(1) allows:
A court may, instead of imposing a fixed term of imprisonment, impose ‑ ‑ ‑
HEYDON J: Section 163(2) is what the judge was relying on.
MR SMITH: Yes.
GUMMOW J: But you have to…..subsection (1), “instead of” suggests you might direct your mind to that first.
MR SMITH: His Honour went through the evidence up until page ‑ ‑ ‑
GUMMOW J: And having directed your mind to it if you come down on the side of indefinite sentence you then explain why.
MR SMITH: Yes.
GLEESON CJ: Am I right in thinking that part of the idea behind these indefinite sentences is to enable them to cope with situations where the maximum penalty for the offence is not sufficient to protect the community?
MR SMITH: I think that is right, your Honour. I mean, if the approach in Leitch is correct, that is one has to look at whether the finite sentence sufficiently deals with these issues.
GLEESON CJ: Exactly, that is what I have in mind. I may be affected by some faulty recollection but I thought that at least part of the idea of having indefinite sentences was to cover the situation where a person who is obviously very dangerous commits an offence, but what I might call the routine or regular sentencing options available are not adequate to cope with that danger, perhaps, for example, because the maximum penalty that is available is not sufficient. A case that prompts me to say that is a case that came to us within the last 12 months out of New South Wales ‑ ‑ ‑
MR SMITH: That might be Strong’s Case, your Honour.
GLEESON CJ: Was it, where there was a stalker.
MR SMITH: Yes, that is the one.
GLEESON CJ: The maximum penalties for what he was doing were relatively modest.
MR SMITH: They were.
GLEESON CJ: But Judge Freeman of the District Court of New South Wales, who was the sentencing judge, exercised this additional power because of what he regarded as a threat that appeared I think from some letters that the man had written. Justice Sully wrote the main judgment in the New South Wales Court of Criminal Appeal.
MR SMITH: But I think that in Strong’s Case even though it was determined there was an error in the approach by Judge Freeman, as it were, a proviso was applied because Mr Strong had an extensive criminal history. I think he had been out of custody for two years in all of his adult life. So one could readily understand, in that case, why the so‑called proviso might apply there, unlike my client’s case.
GLEESON CJ: But this is a case where the sentencing judge had, to put it in an understated fashion, a lot of room to manoeuvre within the ordinary sentencing regime.
MR SMITH: He did. I agree with that. I would not concede the manoeuvring could extend to life imprisonment for the reasons I expressed earlier but 22 years, for example, which my client received effectively is a significant sentence, in my submission.
KIRBY J: You have been candid about the error that your predecessor made in his submission at the trial at the stage of sentencing, but the fact remains that it is the sentencing judge’s obligation to comply with the law in imposing the sentence and the points that the Chief Justice has been raising are really added points for starting, as the proper place is, with the finite sentence given the large room to manoeuvre, as it has been put, and then asking whether, on top of that, some additional protection is needed for the community. It is not to start with the indeterminate sentence which really relieves you of the irksome duty to work out what the finite sentence would be.
MR SMITH: That is true.
KIRBY J: I agree with you that, at least as I understand current sentencing practice, your client’s case would not have attracted life sentences so that, therefore, the judge had the irksome duty to work out what the finite sentences were and then to ask whether consistent with the Strong principles of caution an indefinite sentence should be added.
MR SMITH: Unfortunately, as I submitted, the principles of caution were not referred to because no one had talked about them.
KIRBY J: Well, unless they are referred to, the risk is run that this becomes part of the routine of sentencing instead of it being, as Justice Hayne said in Moffatt in the Court of Appeal of Victoria, a truly serious exception.
MR SMITH: Yes.
GLEESON CJ: What do you have to do to get life? I mean, is your proposition that if you plead guilty you cannot get life?
MR SMITH: No, not at all. There would be some cases where, notwithstanding a plea of guilty, life would be an appropriate penalty, but for the reasons I expressed earlier in this case and which his Honour seemed to accept at 113 of the appeal book, life was not appropriate here. Now, one does not know whether he said that because he was ultimately going to impose the indefinite sentence, except the way he expressed it was because of the plea of guilty credit should be given to the appellant.
So just going to that first point, your Honours, that is the lack of reference to case authority, your Honour Justice Kirby has mentioned Moffat’s Case. Those principles have been ‑ ‑ ‑
KIRBY J: Well, Lowndes is the first important case I think, although it went back even before Lowndes, back before any of the present members of the Court were on the Court.
MR SMITH: Chester was the first relevant decision on the topic.
KIRBY J: In Strong I said White (1968) 122 CLR 467, dealing with the Habitual Criminals Act, had some very cautionary observations. That is at 472 and 478. So the history was – and I think we were told this in Strong – that there was a time when it was quite regular to have the Habitual Criminals Act imposed because there was the sentencing theory that then young males would get education and training in prison and be saved from a life of crime. Then when that was found actually to make their situation worse and recidivism worse that tended to be abandoned and it became a bit of a dead letter, but in the current age in the last seven years or so it has been revived. Is that a fair statement?
MR SMITH: I think so, your Honour, yes. In this case, on this question about whether the offences are exceptional or the power should be exercised with a sparing fashion, unfortunately the Chief Justice did not even address those issues in his decision. This is at page 334 of the record.
KIRBY J: Was Lowndes referred to at all at any stage in these proceedings?
MR SMITH: It was referred to in argument but I am not sure if – certainly the majority of the Court of Appeal – sorry, when I say it was referred to in argument, I mean before the Court of Appeal, not before his Honour. I am just seeing if Justice Holmes referred to the decision, your Honour. No, but Chester, Moffatt and Thompson were referred to by Justice Holmes, but her Honour ‑ ‑ ‑
KIRBY J: Where is this?
MR SMITH: This is at page 340 at paragraph [29] of the decision.
KIRBY J: Just sticking with that first point that you have been making to the Court, did any of the judges in the Court of Appeal say that there had been error by not proceeding first to the finite sentence and then asking whether that was adequate?
MR SMITH: No, your Honour.
KIRBY J: You do not anywhere in your written submissions collect what you say are the principles of Lowndes, Moffatt, Chester and all those other cases. Are you in a position now to say what you submit are the principles that emerge from the authorities of the Court?
MR SMITH: I thought, your Honour, in the outline I did refer to those principles at paragraphs 53 through to 57 of the appellant’s submissions. In the reply I have made reference to the section 163 factors and the decisions at paragraph 20 of the reply.
KIRBY J: It is just that in those paragraphs you do not in a convenient way collect a number of – you have been kind enough to refer to what I said in McGarry, but that came later. Lowndes was really the Strong statement.
MR SMITH: Certainly, your Honour. No, I do not ‑ ‑ ‑
GUMMOW J: In paragraph 59 of your submissions you refer to the Supreme Court of Canada’s decision in Johnson. Do we have that?
MR SMITH: Yes, I think that was forwarded, your Honour, with the material, or filed in the Registry. Certainly Lowndes, for example, at paragraph 11 refers to Moffatt and Chester:
It was there said that the exercise of the power “should be confined to very exceptional cases ‑ ‑ ‑
KIRBY J: That is all well and good. I think that is, as it were – the first one as you state is the principle expressed in Williams and the second is very exceptional, but then hardening it up the question is whether the Court has said that you should start with the finite sentence and then ask the question whether the finite sentence is not sufficient to ‑ ‑ ‑
GUMMOW J: It has been assumed in a lot of cases, I think, that it would not be because of the nature of the offence. Repetitious but considered offence by offence not attracting a particularly severe penalty, hence the habitual criminals legislation in the first place.
MR SMITH: Yes. I think McGarry (2001) 207 CLR 121 might have some reference to this, your Honour, at paragraph 10 in the majority judgment:
The reasons given by the primary judge proceeded from an understanding of the operation of s 98 which should be rejected. His Honour assumed that the conclusion that an offender will be, at the relevant time, “a danger to society, or a part of it” followed inevitably from a conclusion that it was more probable than not that the offender would commit further indictable offences were he or she to be released at the end of the nominal term of imprisonment. As the primary judge said, he reached the conclusion that this appellant would be “a danger to part of society because of a clear risk that he will commit other indictable offences”.
Now, whilst that does not clearly encapsulate this principle one can see that there is an assumption the finite sentence must be considered.
KIRBY J: Otherwise you are turning our sentencing system on its head and moving from the general sentencing system of finite punishments for particular proved offences into the old Maconachie theory of Norfolk Island and you are imposing a general sentence and then leaving it to the administrative arm of government to decide whether or not the person’s liberty will be curtailed at a particular time.
MR SMITH: Yes.
KIRBY J: That is not something that at least I would favour in a rule of law society as a first step. It may be necessary as a second step.
MR SMITH: The point I make in my submissions is that if one couples this treatment referred to by the doctors with a 22 year sentence that might well and truly address the risk. The problem which has occurred here is that his Honour did not address that issue when he came to determine whether any definite sentence should be imposed.
GLEESON CJ: When the Court of Criminal Appeal came, as you said it should have come, to a reconsideration of the whole issue because of what you say were errors, and you are going to have to take us to demonstrate that those were errors, would one of the possibilities for consideration by the Court of Appeal have been life imprisonment with the parole system to operate for the protection of the community?
MR SMITH: If it was, they did not say so, your Honour. It was not referred to at all in the judgment.
GLEESON CJ: I think you are still on your first proposition which was the sentencing judge made no reference to the principles?
MR SMITH: That is true. If I could finish off this point. I was really going to submit and it is really come out of the discussion that has just been held that this Court since Chester, on at least three occasions, that is Lowndes, McGarry and Thompson has repeated that the power can only be exercised in those exceptional cases and sparingly. Other State courts have correctly, in my submission, adopted these principles. There is Moffatt’s Case, Davies is the more recent Victorian decision to which I refer in my submissions, and importantly in Narrier’s Case, a decision ‑ ‑ ‑
KIRBY J: What is the citation of Davies?
MR SMITH: The citation of Davies, your Honour, is (2005) 153 A Crim R 217 and in particular the principles were referred to at paragraph 48 at page 234 through to paragraph 51 at page 235.
Importantly, in the Western Australian case of Narrier (2000) 111 A Crim R 405 which I might indicate is a case where Mr Narrier had raped a woman in her house and later that same night attacked another sleeping woman and previously he had been sentenced to four years for breaking into a house and attempting sodomy and five years imprisonment for abducting another young woman, so he had a significant history, it was held firstly at 406 to 407 by Justice Wallwork that those principles to which I have just referred are very relevant. At paragraphs 16 to 17 there was reference to Justice Kirby’s observations in Thompson.
KIRBY J: I was really only repeating what Justice Hayne had said in the Court of Appeal of Victoria in Moffatt.
MR SMITH: Yes, and at page 411 in paragraph 30 at about point 3 it was said:
In my view the learned judge did not take sufficient account of what has been said in the relevant authorities such as Chester, Moffatt and Thompson concerning the power to impose an indefinite sentence. Id does not appear from his Honour’s reasons that he considered whether this was one of the “few (perhaps very few) cases” or, “very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm”. Error is therefore revealed and the issue then is whether an order for indefinite imprisonment should have been made.
GLEESON CJ: We are not presently concerned with legislation of the kind that was in issue in Fardon, are we?
MR SMITH: No.
GLEESON CJ: And part of the difference between the Fardon legislation and this legislation is that, under what I will call the Fardon system, the question of danger is considered not at the time of sentencing but many years later at the time of release as it is under the parole system. One of the inherent problems of this exercise is that the longer the finite sentence, the more difficult it is to predict danger at the time of release.
MR SMITH: I agree with that your Honour but the authorities do require an attempt to be made of prediction. All of the authorities which refer to that principle acknowledge there are difficulties with that approach but it has to be done.
KIRBY J: Was not Dr Moyle’s suggestion that this exercise be postponed until towards the end of the finite sentence on the basis that there is evidence that with a sex re-education program in prison, removal from exposure to alcohol which had been a problem in this man’s life, some evidence of growing insight, monitoring him within prison, taking into account his behaviour and conduct in prison, that predictors would be in a much better position to predict than they were as at the moment of sentencing.
MR SMITH: Yes.
GLEESON CJ: How do you propose to postpone it?
MR SMITH: I am agreeing with the proposition, your Honour. I do not ‑ ‑ ‑
GLEESON CJ: How could it be postponed except by resort to the final legislation?
MR SMITH: I agree, and I am not suggesting it should be postponed but Dr Moyle also gave evidence that presently dealing with the risk and these favourable factors and if he received this treatment, looking at the risk presently, ie, to the future, although Mr Buckley was at least a moderate risk, he did have sufficient factors which put him into ultimately a low risk in the future.
GLEESON CJ: Let us suppose that medically Dr Moyle is right, that it is not rational to try and make this prediction 20 years in advance of his possible release. The question then is what is the available legal response to that? One available legal response to that in the existing state of the law would be to sentence him for life and let the parole system deal with that issue after 15 or 20 years, or whatever. I am not saying that is the right answer, I am just saying it is a possible answer. Another possible answer is to invoke the Fardon legislation. What are the other possibilities?
MR SMITH: The other possibilities are those referred to in, for example, McGarry’s Case, paragraph 16, because unfortunately, even though it is a difficult thing, the court has to make a determination of future risk which includes the question of treatment in the future and if I could refer your Honours specifically to McGarry’s Case at paragraph 16, you will see their Honours referring to a particular report of importance, it being acknowledged:
that there may be some medical means of reducing that risk and that it was the appellant who had sought to explore that question.
KIRBY J: Could I ask, would it have been open to the sentencing judge in rejecting an application as at the time when the application was made because of the fluid state of the evidence? Just assume he had taken this view to say, “Well I’m not going to make such an order now, but it can be renewed at some later time and it’ll be determined on the evidence that is available at such a later time”.
MR SMITH: Certainly.
KIRBY J: Is that ever done, in fact?
GLEESON CJ: That is under the Fardon legislation, is it not?
MR SMITH: It is.
KIRBY J: Does the legislation here applicable only contemplate a one-off application at the moment of original sentencing?
MR SMITH: Yes.
KIRBY J: In Stone, as I remember it, the case before Judge Freeman was a case where the man had been sentenced to a finite and then, subsequently, an application was brought under the habitual offenders’ legislation.
GLEESON CJ: Because that was an additional sentence. The way the habitual offenders’ legislation operates is that you start with the sentence and then you can sentence a person to an additional sentence under the Habitual Offenders Act.
MR SMITH: That is obviously the New South Wales legislation in that regard. The relevant Part 10 of the Act we are concerned with here must be dealt with at the time of sentence.
KIRBY J: I follow.
MR SMITH: However, in this case, it may be if, for example, my client did not undergo that program and was considered to be a risk in 22 years time, if the Fardon legislation still exists then an application can be made under that legislation at that stage. The problem is the Fardon legislation has only been in operation for a short time and generally speaking that legislation would only apply to prisoners with relatively lengthy sentences so we have not seen a situation that I am aware of at least where ‑ ‑ ‑
KIRBY J: For my own part I would not want to say too much to encourage the use of the Fardon legislation but that is just my view. Is there a way whereby, consistent with a judicial exercise of the power, a judge could adjourn the application for the indefinite sentence or does the Queensland legislation require that that be decided at the moment of sentencing?
MR SMITH: Your Honour, no, it requires it be decided at that time.
KIRBY J: What is the section?
MR SMITH: Well, section 163(1) empowers a court to impose “an indefinite sentence”.
GUMMOW J: It has those words “instead of” which I invited attention to ‑ ‑ ‑
MR SMITH: Yes, and the term “nominal sentence” is the unusual one as well. Twenty two years could not be said to be a nominal sentence, one would think.
HEYDON J: It is nominal in the sense that it is not real. It was not actually imposed.
GLEESON CJ: Is not part of the point of a system of having indefinite sentences the problem of prediction, where in a circumstance where somebody is on any view of the matter going to prison for a long, long time, to have to predict now what risk he will be to the community in 20 or 30 or 40 years time is a very unscientific exercise.
MR SMITH: It is.
GLEESON CJ: I mean, who knows what medical advances in the next 20 years might occur to make it possible to rein in some of your client’s aggression?
MR SMITH: Well, I accept the difficulties of it, your Honour, but in McGarry paragraph 22 is also relevant. It notes that one must look to the future with things. Lowndes, itself at paragraph 12 requires the Court to look to the future.
GLEESON CJ: Can you just remind us of what are the practical consequences in Queensland of imposing an indefinite sentence?
MR SMITH: The practical consequence, your Honour, is that under section 171 of the Act there must be a review by a court within six months after my client has served 50 per cent of his nominal sentence, ie, 11 years and six months and there must be a review of that sentence of not more than two years from the time when the review was last made, so in essence every two years the matter goes back before the court to consider.
GLEESON CJ: So that is the system of review by the District Court?
MR SMITH: Yes.
GLEESON CJ: Review to what end, changing the sentence?
MR SMITH: Apparently, if the court is not satisfied that he is a continuing risk there would be a resentence and discharge.
GUMMOW J: Where do we see that?
MR SMITH: I am just trying to find the relevant section, your Honour.
GUMMOW J: Section 173.
MR SMITH: Section 173 of the Act, yes.
GLEESON CJ: Let us just assume for the purpose of this discussion that no sentencing judge could realistically have contemplated a finite sentence of less than around 25 years and in that situation you have a person of your client’s propensities. If you just go ahead and impose a finite sentence endeavouring to take account, amongst other things, as you must, of danger to the community in working out the length of the finite sentence or in fixing a parole period or non‑parole period or whatever it is called in Queensland, you have to make the prediction now once and for all. Save by resort to the Fardon legislation, there is no capacity to revisit it.
MR SMITH: No.
GLEESON CJ: If you sentence to an indefinite period, you are obliged after 12 and a half years to have a review of the sentence and to have ongoing reviews every two years after that with a view to considering at that time his danger upon release.
MR SMITH: That is right.
GLEESON CJ: That seems to suggest that the system of indefinite detention gives much more flexibility in relation to making these assessments of danger at about the time of prospective release than what I will call the ordinary system.
MR SMITH: No, part of the system of imposing indefinite sentences includes that prediction. It might be difficult but it must include prediction at the time the sentence is imposed. It may be once it is imposed, then there is greater certainty ultimately but ‑ ‑ ‑
GLEESON CJ: But we are talking about danger, we are talking about something that is inherently uncertain.
MR SMITH: Except though that a determination as to danger against a person in the appellant’s position must be satisfied to a high degree of probability is what the Act says. So that if there is reasonable doubt, as it were, about danger, then the sentence ought not be imposed. That makes sense. It might seem attractive to impose the indefinite sentence and then look at this in 11 and a half years time.
KIRBY J: Where did the 22 years come from? The Chief Justice mentioned 25 years, but in fact a 22 year sentence is mentioned in your submissions in paragraph 46. Now, where do we find that?
HEYDON J: Page 116, line 35.
MR SMITH: Page 116, line 25, your Honour.
HEYDON J: Line 35 and it was foreshadowed at 113, line ‑ ‑ ‑
KIRBY J: What page?
MR SMITH: Thank you, your Honour – page 116, line 35.
HEYDON J: It was foreshadowed on page 113, line 35.
MR SMITH: Yes, that is that passage where the life imprisonment issue was discussed. So, in answer to the Chief Justice’s question, even though it seems attractive, the reality is that the approach does require that prediction at the time of sentence ‑ ‑ ‑
GLEESON CJ: The 22 years comes from a range of 20 to 25.
MR SMITH: Yes, which would seem to be a reasonable range, one might say, having looked at the comparable decisions in light of the plea. But to finalise this point about what a court must do in terms of future risk and the question of treatment, in McGarry at paragraph 22 it is noted that, at least in respect of that legislation, the court must look to the future. At paragraph 23 it is noted that, about halfway down:
More than the probability of further offending must be shown.
KIRBY J: Could I just clarify matters? Does the scheme of the Act contemplate the necessity of a finite sentence because of the provisions for review?
MR SMITH: Yes.
KIRBY J: Now, where is that provision for review? What is that section?
MR SMITH: The provision for review, your Honour, is at section 171 of the Act.
KIRBY J: That tends to confirm then the – I will not say staged approach because I do not want to reopen that issue but the fact that the starting point is to fix a finite sentence. Now, the sentencing judge said that counsel did not ask for a finite sentence.
MR SMITH: I am sorry, your Honour ‑ ‑ ‑
KIRBY J: But the scheme of the Act in 171, talking of “50% of the offender’s nominal sentence” seems to contemplate that the judge must impose a nominal sentence and then turn to the question of whether, exceptionally, and for the protection of the community, that is not sufficient and necessitates an additional indefinite sentence.
MR SMITH: Yes.
GLEESON CJ: You mean impose?
MR SMITH: Impose?
GLEESON CJ: Impose a nominal sentence?
MR SMITH: Yes, well, it must state the term that would have been imposed.
KIRBY J: It seems to contemplate that there will be something called a nominal sentence.
GLEESON CJ: Yes, so you do not impose it by hypothesis; it is the sentence that you are not imposing.
CRENNAN J: It is provided for, is it not, in 163(2)?
MR SMITH: Yes, your Honour.
GLEESON CJ: You state the term of imprisonment that would have been imposed had it not imposed an indefinite sentence.
MR SMITH: Yes.
GLEESON CJ: So you say, in a theoretical case, “I am imposing an indefinite sentence and if I had not imposed the indefinite sentence, I would have imposed a sentence of X years”, and then section 171 produces the result that in X divided by two years, there is a review.
MR SMITH: Except though that section 163(4)(d) refers to the court having to have regard to:
the risk of serious physical harm to members of the community if an indefinite sentence were not imposed –
and, as I had submitted earlier, that must contemplate the court must give regard to what risk there would be if a finite sentence is imposed.
GLEESON CJ: X years, which means that the court has to ask, “What danger is this person going to represent to the community in X years’ time?”
MR SMITH: That is right, and that was not done here, in my submission. I keep coming back to this point but it is an important one about future risk and the question of treatment. Lowndes dealt with that issue as well, your Honours, and at paragraph 12 it was said that:
The effect of sub-s (2) is that the condition of the exercise of the power is that the court is satisfied on the balance of probabilities that, at a future time, when the offender would otherwise be released, he or she would be a danger to society, or a part of society, because of one or more factors. Thus, what is involved is a decision about a state of affairs that will exist at a time which may be several, perhaps many, years ahead. The relevant state of affairs is a form of danger. That will usually involve an evaluation of risk, and, perhaps, of steps that may be taken to avoid or reduce the risk. The concept of danger to society, or a part of it, may also involve difficult questions of judgment . . . .Once again, these paragraphs raise questions of evaluation and prediction.
So, obviously, the question of treatment is relevant to a consideration of what the risk would be if a finite sentence was imposed coupled with treatment. Whilst it is difficult, it must be done, to answer the Chief Justice’s question on the topic. That is what the courts ‑ ‑ ‑
KIRBY J: It must be done where either (a) the prosecution asks for it, or (b) the judge forms a view of his or her own motion that it ought to be considered.
MR SMITH: But if the prosecution asks for it, it is still incumbent upon the judge to make that determination.
KIRBY J: And before the prosecution can ask – but do I understand the Queensland legislation to be that the Attorney‑General must give consent?
MR SMITH: Yes, your Honour, and there are some time limits associated with them.
KIRBY J: So that itself is an indication that it is an exceptional step.
MR SMITH: Yes.
KIRBY J: It is not just left to the Director of Public Prosecutions.
MR SMITH: No, it is not. The problem in this case is that his Honour, at page 114, line 40 of the record, summarised the situation:
I come to the firm view that there would be very real risk of serious physical harm to members of the community if an indefinite sentence were not imposed, and the need to protect members of the community from the said risk would require an indefinite sentence.
Then he referred to this treatment issue, “All of the psychiatrists”, indicating that:
that would be a helpful indicator and would lessen the risk of recidivism.
And then did not say why an indefinite sentence was called for as distinct from a 22 year head sentence with treatment.
GLEESON CJ: You have submitted that he failed to comply with section 163(4)(d), is that right?
MR SMITH: Yes, your Honour.
GLEESON CJ: At the bottom of 114 and the top of 115 he says:
there would be very real risk of serious physical harm . . . if an indefinite sentence were not imposed –
He actually follows the words of section 163(4)(d).
MR SMITH: He follows the words. I agree with that, your Honour, but he does not go further to determine or give reasons for why a finite sentence of 22 years, coupled with treatment, were not sufficient here, which is something he should do. That was really my submission.
GLEESON CJ: It is not that he did not advert to or make a finding in terms of 163(4)(d), it is that he did not give reasons for the finding, is that the point?
MR SMITH: That is probably more to the point.
GUMMOW J: Where do we find the reasons requirement?
MR SMITH: Section 168(1).
GUMMOW J: Yes, “detailed reasons”, it says. You say it is not enough to recite what is in section 163(4)?
MR SMITH: No.
GUMMOW J: The draftsmen understood that because they put the phrase “detailed reasons” in in 168.
MR SMITH: Correct.
GUMMOW J: Where do we find in the case of a sentence not imposed under this special system, but in the ordinary course - how would the parole system kick in? What legislation would draw that in?
MR SMITH: This is if it was a 22 year head sentence?
GUMMOW J: Yes.
MR SMITH: That is section 135 of the Corrective Services Act 2000. I think your Honour will find the provision in subsection (2) of that Act.
GUMMOW J: Section 135 talks about:
An exceptional circumstances parole order –
I do not think that is right, is it? Is that right?
MR SMITH: Yes. That is the section, as I understand it, your Honour. I will just turn up the provision, your Honour. It is section 135(2)(c).
GUMMOW J:
for a prisoner serving a period of imprisonment for a serious violent offence ‑ ‑ ‑
MR SMITH: This is a serious, violent offence. There is a schedule to the Act – the Penalties and Sentences Act and, ordinarily, if it is 10 years and over one has to do 80 per cent of that sentence but once you hit a position where it is 15 years or 80 per cent it is whichever is the lesser, ie, 15 years in this case.
GUMMOW J: We do not look at this every day.
GLEESON CJ: No, and the Queensland judges do. This means that the potentiality for parole would kick in in the case of a 22 year sentence at the same time as it would for a life sentence, 15 years.
MR SMITH: Correct. Yes.
GLEESON CJ: That comes from the legislation you have just referred us to.
MR SMITH: Yes, 15 years.
KIRBY J: You had better give us a note on these provisions because, as Justice Gummow says, you know all these things but unfortunately we do not.
MR SMITH: I understand, your Honour. What I think I had really finished is this topic of his Honour’s findings. I think I have dealt with those issues in argument. So the third point really is the error in facts that I submit occurred here. Justice Holmes in her decision at page 341 of the appeal book from paragraphs [32] to [35] found that there were some findings by his Honour which were not supported by the evidence.
GLEESON CJ: Just what is the factual issue in relation to the killing of horses?
MR SMITH: The factual issue is this. His Honour found at page 105 at lines 20 to 26 what was a matter of concern was that on occasions after the act of sexual perversion he would kill animals.
KIRBY J: What was that word you used?
MR SMITH: Sexual perversion.
KIRBY J: Is that in the statute?
GLEESON CJ: It is in the judgment that is being read.
MR SMITH: No, it is in the judgment, your Honour.
KIRBY J: Where are we, 105?
MR SMITH: Page 105, lines 20 to 26.
One cannot speculate on whether, if the accused had not been arrested and there were further incidents, that the life of a complainant might have been at risk.
So his Honour found it was concerning that this man would have sex with an animal and then kill it.
GLEESON CJ: Yes, that is a concerning sort of thing, but where is the evidence about that?
MR SMITH: The evidence about that is page 195, line 25 of the report of Professor Yellowlees.
GLEESON CJ: This is what your client actually told him?
MR SMITH: That is where the evidence comes from. It is a report by the appellant to Professor Yellowlees.
GLEESON CJ: Is this a matter that Dr Moyle referred to in his report?
MR SMITH: I do not think at length, your Honour. He certainly diagnosed zoophilia, which is a form of paraphilia apparently.
GLEESON CJ: Yes, I imagine it is, but is the great issue whether he is a zoophiliac or a necrozoophiliac?
MR SMITH: Well, it is when the concerning feature is linked into what might have happened to the complainants and it concerned his Honour enough to mention in his judgment that my client would have sex with a live animal and then kill them afterwards, and one can readily understand how that would be particularly concerning.
GUMMOW J: It is really lines 29 and 30 on 195, “the feeling with the women . . . it was just a disposable thing”.
MR SMITH: Yes, and so my submission is in the context of why his Honour mentioned that, that was a misstatement of the evidence, it was material, otherwise presumably his Honour would not have mentioned that as a matter of concern.
KIRBY J: Now, the majority in the Court of Appeal said that it was not material. Why do you say it was a material misstatement of the evidence?
MR SMITH: Because it was of sufficient concern to his Honour to mention that in the context of my client’s background – and he specifically said one matter of concern is that this would happen and he linked it into having sex with a woman and potentially killing them, although he did not want to speculate on that topic further. So my submission is one cannot just say it does not matter.
GLEESON CJ: Hang on. It is not a matter of comfort, is it, that he in fact kills them before he has sex with them?
MR SMITH: No, but it was concerning to his Honour that my client would have sex with an animal and then kill the animal afterwards and that he linked that into the potentiality with what might happen to a rape complainant, a human being. That is why I submit it is material, otherwise it would not have been mentioned, and in fact Justice Holmes seems to at least agree with the proposition I am placing forward, that is that she thought that was on – I will just use her words ‑ ‑ ‑
KIRBY J: This is in paragraph [32], is it?
MR SMITH: Yes, [32] and in particular at paragraph [35] she thought:
Those apparent mis-statements of the evidence must, I think, cause some concern because they seem to have influenced his Honour’s view of the prospects of the applicant’s re-offending. They amount, in my view, to an error affecting the exercise of the discretion under s 163.
And that encapsulates really my submission on the topic.
GLEESON CJ: Just before we go any further, Mr Smith, the opening words of the paragraph on page 105, “What was a matter of concern to Professor Yellowlees”, where do we find Professor Yellowlees expressing his view of what I will call the relevance of this information?
MR SMITH: Professor Yellowlees never, as I understand his evidence, came to a firm conclusion about any link between having sex with animals and the risk ‑ ‑ ‑
HEYDON J: What about page 198, which is paragraph 2 of Professor Yellowlees’ opinion, where he says:
It is important for the Court to note that in his interview with me, Mr Buckley claimed that the rapes with which he is charged were very similar to some of the sexual acts he has had with animals in the past, particularly in terms of the power that he felt over the victims.
He seems to have thought it is significant in that respect.
MR SMITH: He was asked about this in evidence. I will just turn up the passage, your Honours. His Honour seemed to have an interest in this topic because at page 35, line 15 his Honour asked whether there was a link – was it:
unusual for people with the buggery of animals and killing animals to become violent rapists or sodomists?-- The academic literature, to be quite honest, is Spartan.
GLEESON CJ: That is “sparse”, I trust, otherwise it is a bit of an offence to the Spartans.
MR SMITH: Yes:
There really isn’t a great deal. These are still cases which are fairly unusual.
So there was not a clear link between sexual sadism with animals and risk of recidivism, but his Honour was interested in that topic and seems to have ‑ ‑ ‑
GLEESON CJ: I think the answer to my question to you earlier, that is, what is the concern referred to, is to be found, is it not, on page 35, line 26 in the words “then clearly one has to be extremely worried”. So it is that comment by Professor Yellowlees that is the expression of concern referred to on page 105, is it not?
MR SMITH: That seems to be a reasonable inference to draw, your Honour, but the concern was particularly heightened in his Honour’s mind by the act of killing after the act of sex and linking that into the potentiality of killing a complainant after, ie, a rape leading to murder. With respect, I would adopt Justice Holmes’ views that that was a cause of concern such a misstatement of the evidence. So that is, I think, the evidence on that topic.
HEYDON J: Earlier a question was raised about Dr Moyle. The subject of his treatment of animals appears at the top of page 173 but he made no statement to Dr Moyle of the type he had made to Professor Yellowlees apparently.
MR SMITH: Yes. The second error relied upon by the appellant is – this is paragraph [33] at page 341:
that the applicant was “quite boastful about his actions in the matters in the indictment before me”.
Now, that was not supported by anything in the evidence, as her Honour noted. In fact, Professor Yellowlees was specifically asked about that proposition at page 38, line 42 and he accepted that any pride was with respect to fighting, not with respect to raping the complainants.
HEYDON J: What do you say about paragraph [4] of the Chief Justice’s judgment on page 335?
MR SMITH: Your Honour, my submission about paragraph [4] is it is not clear that he was boasting about the offending behaviour.
HEYDON J: The suffering and the pain was different?
MR SMITH: That is my submission.
HEYDON J: Yes.
MR SMITH: Boasting about the rapes is quite a different thing, ie, being proud about the fact that he had committed these offences is quite a serious matter.
HEYDON J: Do we have the material provided to Dr Fama?
MR SMITH: We do, your Honour. Dr Fama’s report is at appeal book 181.
HEYDON J: It has to be “applicant’s written material”, given the “frame of mind before rapes”.
MR SMITH: Dr Fama, your Honours might appreciate, was not cross‑examined before his Honour because Dr Fama’s involvement was really to assess whether there was an unsoundness of mind defence as distinct from assessing dangerousness. He had seen the appellant back in 2000.
HEYDON J: The thing that worries me is that the statement, “applicant’s written material provided on 20 October to Dr Fama” is not actually in Dr Fama’s report. Is there some separate exhibit for that?
MR SMITH: Yes, your Honour.
HEYDON J: He says he has interviewed him twice and he has seen a brief of evidence and charge sheets, a medical record and a report by Dr Moyle. I am just trying to work out what the Chief Justice was talking about, what he was quoting from.
MR SMITH: Yes, I will just look at that, your Honour. I cannot seem to see where that comes from, your Honour. The Chief Justice refers to that being in, as your Honour points out, written material and I cannot seem to see that on the record anywhere.
HEYDON J: There is in the book what seems to be a written statement by your client beginning on page 256 but that does not answer the description.
MR SMITH: You might recall, your Honours, after the initial assessments my client wrote as to his thoughts concerning his offending behaviour and that was the written material with respect to which Dr Moyle thought there was insight and remorse and there was cross-examination of both Professor Yellowlees and Dr Kingswell about those writings. I am sure that is not the same document so I cannot assist. The only passage in Dr Fama’s report relating to the offences was at page 186, line 25 where my client acknowledged the facts of the offences.
To some extent, he tries to assign blame to the victims; if they hadn’t been there, the events would not have happened.
It might be that passage there at line 30, your Honour.
HEYDON J: The trouble is, that says:
I hate seein’ people hurt and in pain.
The Chief Justice says “I can make people suffer and feel pain so they can see clearer”. I do not think that is the passage.
MR SMITH: I am told by Mrs Clare there were some other documents before the Court of Appeal which are not in this record book.
CRENNAN J: There is also a quote about causing pain, page 182, around line 30 which seems to be the doctor quoting a passage not dissimilar from the one to which the Chief Justice referred.
HEYDON J: You see this as a not insignificant point, we had better have the material that Chief Justice de Jersey was quoting from.
MR SMITH: Yes, certainly. I will have that noted down your Honour and with those other documents we can obtain such material.
GLEESON CJ: How does it come about that on pages 183 and 184 there are 19 offences listed?
MR SMITH: I suspect my client was charged with a lot more counts at the committal stage because this report was done well and truly before the indictment was presented, I think. The indictment was presented on 6 June 2003.
GLEESON CJ: But we know that all the medical evidence proceeded upon the basis that the counts of which your client was convicted were not the only offences he has committed. Nobody ever charged him with any offences in relation to the horses or the sheep or the goats, for example.
MR SMITH: No, but all of these ‑ ‑ ‑
GLEESON CJ: What I am interested to know is whether the rapes of which he was convicted were the only rapes that were taken into account in the medical evidence.
MR SMITH: Your Honour, for example, at 183, lines 25 to 30 there are four counts of rape concerning the complainant M. In the indictment one will see that that has been reduced to two counts of rape, so it would seem, adopting the Merriman type principle instead of charging a particular count for – or dissecting one transaction to a number of different acts, it has been reduced to the two counts, and the same with ‑ ‑ ‑
HEYDON J: If you read MG’s statement, on one version she was penetrated a large number of times, or at least she says she was, because it has been reduced to two charges of rape, counts 7 and 8.
MR SMITH: So I do not think it would be a fair thing to say there are other offences out there with which the appellant has not been dealt.
GLEESON CJ: No, what I am more interested in is the conduct of the appellant that the medical practitioners were taking into account in forming their opinions about his dangerousness.
MR SMITH: This is the animals and the like?
GLEESON CJ: Whatever.
KIRBY J: There were three collective incidents with three different human victims, namely the three who are mentioned on page 183, and only with them so far as is known.
MR SMITH: Yes, that is right. I did not think there was a suggestion otherwise, your Honour. That really deals with that issue about boastfulness, and one can readily understand how that is a significant feature in determining that there is a risk of someone committing offences in the future. If they boast about having committed these offences, there is obviously a lack of insight, remorse and the like which would lead one to the conclusion that the offender is very dangerous.
The final error, your Honours, was the blaming by him that all of this occurred because of alcohol. This is page 341, paragraph [34]. At page 108, line 25 is the finding by his Honour on the topic. There is a paragraph there where he is quoting Professor Yellowlees’ words where the appellant was blaming all of this by being:
adversely affected by the voluntary consumption of liquor. Meaning the simplistic development of that, that if he does not drink he will not reoffend.
As Justice Holmes noted at page 342, line 12, there was nothing:
in Professor Yellowlees’ evidence which attributed to the applicant such a deflection of blame.
In fact, the material does disclose that when he had spoken to all of the psychiatrists, he acknowledges that it is not just alcohol; he has a far more deep‑seated problem than the consumption of liquor.
GLEESON CJ: What were the words of Professor Yellowlees referred to on page 108, line 26?
MR SMITH: I will just find those, your Honour. His Honour first asks about alcohol at page 35, line 30 and then it does not ‑ ‑ ‑
HEYDON J: Is not Justice Holmes’ point that there are no words of Professor Yellowlees corresponding to those which the Chief Justice identified?
MR SMITH: Yes, that is right. That is the point and I adopt that and that was a key issue. I mean, if someone simplistically blamed alcohol as being the only cause well, there would be a real concern about insight.
GLEESON CJ: Tell me, in the proceedings in the District Court in Queensland, do the judges have available to them a transcript of the evidence at the time they give their judgment?
MR SMITH: Yes, at the end of each day, available by about 5.30, 6.00 pm.
GLEESON CJ: And was this an ex tempore judgment or a reserved judgment?
MR SMITH: It went over two days. Professor Yellowlees, I think, gave evidence on the first day, your Honour.
HEYDON J: Judgment was on 11 December and Professor Yellowlees was 10 September 2003.
MR SMITH: Yes, and the end result of those three errors is that if a judge acts upon a wrong principle or allows extraneous or irrelevant matters to guide him – I am referring to House v The King obviously ‑ ‑ ‑
GUMMOW J: Well, that is the question and you can think about this. Firstly, what was the nature of the appeal?
MR SMITH: The appeal to the Court of Appeal?
GUMMOW J: Yes.
MR SMITH: There was a strict appeal on the record, it was not de novo.
GUMMOW J: Section 177 of the Penalties Act applies, does it?
For the purposes of the Criminal Code, chapter 6732--
(a) an indefinite sentence . . .
is taken to be a sentence imposed upon conviction.
Is that the provision?
MR SMITH: Yes, your Honour.
GUMMOW J: And then in the Code you get to 668D(c), is that right? You needed leave?
MR SMITH: Yes, we needed leave to appeal. We were the applicant before the Court of Appeal.
GUMMOW J: Well, given the curious and serious nature of these indefinite sentences it seems odd you need leave, but that is how it is understood, is it?
MR SMITH: That is the procedure, yes.
GUMMOW J: It is not an ordinary sentence. There is some transmutation going on there in section 177, making apples into oranges.
HEYDON J: Justice Holmes granted leave but the other two members of the Court of Appeal would not grant leave.
MR SMITH: Yes.
GUMMOW J: Then we go to 163 ‑ ‑ ‑
MR SMITH: Sorry, 663, your Honour?
GUMMOW J: Section 163 of the Penalties Act and we have to know what the nature of the jurisdiction is there. It says the “court may”. Now, what does that mean?
MR SMITH: This is in 163(1).
GUMMOW J: Yes.
MR SMITH: There is a discretion reposed in ‑ ‑ ‑
GUMMOW J: No, there is conferral of jurisdiction, surely, a new sort of jurisdiction, this creature called “an indefinite sentence”. Is that not so?
MR SMITH: Yes, I agree with that.
GUMMOW J: And then the State and the Commonwealth draftsmen too always run these two ideas together, with great confusion resulting. Then, in exercising that jurisdiction, a court is obliged to do various things. It “must state” in (2), it “must be satisfied” in (3) and it “must have regard to” in (4). Where is there any discretion there? These are conditions of the exercise of the jurisdiction, surely. I am not putting this adversely to you but we need to know what we are doing, and then people start chattering about House v The King.
HEYDON J: This is giving you victory on point 3. You do not have to worry about point 3.
GUMMOW J: Has there been any consideration given in Queensland to just what this section is?
MR SMITH: Stone is the only authority.
GUMMOW J: We have looked at these sections twice in Western Australia, once in Mitchell 184 CLR 333 at 344 and following and again in Lowndes 195 CLR 665 at 671 and following. These things need to be looked at otherwise courts are casting off from the shore on an ocean that is terra incognito.
MR SMITH: Yes, I am looking at Lowndes, paragraph 14. There was reference made to Mitchell v The Queen ‑ ‑ ‑
GUMMOW J: You have to start with Mitchell, but anyhow. So what are we doing here? The Court of Appeal seemed to think it was engaged in the House v The King exercise. House v The King was a case of a sentence, was it not, for a bankruptcy offence and it just said the court may pose this sentence. It was a traditional-type sentencing operation but this is not a traditional-type sentencing operation at all.
MR SMITH: No.
GUMMOW J: It is a mandatory operation with these curious characteristics.
MR SMITH: If that is the case then if there is a breach of any of those statutory preconditions then it has to be set aside.
GUMMOW J: That is a question.
MR SMITH: I have submitted, for the first two points, there is, ie, the High Court authorities and demonstrated attention to the requirements. I suppose my fallback position is that if it is a discretionary matter I rely on House v The King and the principles there.
GUMMOW J: What is the discretion?
MR SMITH: The word “may” is there but I have gone into the force of your Honour’s observations concerning ‑ ‑ ‑
GUMMOW J: Sometimes “may” means must or sometimes it confers jurisdiction. All right.
MR SMITH: They are really the points I wanted to make about the errors, your Honours. In conclusion, my submission is that the sentencing judge’s decision and the Court of Appeal decision are attenuated by error here.
GUMMOW J: As Justice Heydon reminds me, this is a Barrett v Opitz section in 70 CLR. “May” has this curious double facet to it, it confers jurisdiction and the jurisdiction is of particular character.
MR SMITH: My submission is that in Queensland it should be the law that a court must find there be exceptional circumstances before an
indefinite sentence is imposed. In Queensland a judge should appropriately address the section 163 issues. It did not happen here. A miscarriage of justice has occurred, in my submission, and the rehabilitative aspect of the sentencing process was almost completely ignored for those reasons. They are my submissions.
GLEESON CJ: Thank you, Mr Smith. Yes, Mrs Clare.
MRS CLARE: May it please the Court. If I can just take your Honour the Chief Justice’s initial point about whether the maximum penalty of life imprisonment is relevant to a determination of whether or not this was an appropriate case for an indefinite sentence? The Crown Prosecutor, in fact, submitted that in all of the circumstances a sentence of life should be imposed at least as the nominal sentence, that that was the appropriate proportionate sentence, the punitive sentence and the defence counsel submitted that the appropriate sentence was 20 years imprisonment, but the consideration under Part 10 for whether or not it is an appropriate case for an indefinite sentence depends, it is submitted, upon - in assessing the serious danger - also consideration as to what would be the likely sentence on a punitive sentencing, that is under normal principles, outside of Part 10 regime.
Section 162 itself defines “violent offences” - which are eligible under the section to be indefinite sentence - defines serious violent offences as to include those which involve violence and carry a maximum of life imprisonment so the maximum penalty itself is a consideration that actually opens up eligibility for an indefinite sentence.
In this case, the primary judge considered that he would have been inclined to impose a sentence of life imprisonment after a trial. That appears in his reasons at page 113, line 30. But he was moved to give some significant discount for the plea so the nominal sentence of 20 years was a reflection of the utilitarian discount for the plea of guilty.
KIRBY J: Was that compatible with the general sentencing principles applied in Queensland courts, in your submission?
MRS CLARE: There is a range that was open, clearly. I would endorse the prosecutor’s submission that it was open to his Honour to impose a term of life imprisonment notwithstanding the plea of guilty paying account to it ‑ ‑ ‑
KIRBY J: The problem of doing that, and I think we have discussed this in cases, is that you thereby remove any incentive what is to be lost in taking the risk or the chance that you might get an acquittal or acquittal on some and that is the utilitarian principle.
MRS CLARE: Yes, and that was clearly what moved his Honour. There are a couple ‑ ‑ ‑
KIRBY J: It has cost implications and the burden on victims and so on.
MRS CLARE: Those were the things his Honour considered. There are a couple of cases in Queensland where after a plea of guilty serial rapists have been sentenced still to life imprisonment.
GLEESON CJ: In that New Zealand case of Leitch that we have been referred to, a 1998 decision, Sir Ivor Richardson, speaking of course of New Zealand, said that:
The sentence of preventive detention has its antecedents in habitual offenders legislation dating back to 1906.
Then he said it was introduced in New Zealand in the Criminal Justice Act 1954 and he gives some statistics on pages 426 and 427 of its use in New Zealand. Is that a similar history in Queensland?
MRS CLARE: Our provision which has been operating since 1992 probably has had probably about a dozen successful orders.
GLEESON CJ: But is this remark in New Zealand that it has its antecedents in legislation dating back to 1906 true of Queensland also?
MRS CLARE: No, prior to this legislation there was a power, and there still remains a power, for indefinite detention for a person incapable of controlling sexual instincts. Other than that, it is simply a term of life imprisonment under the normal sentencing principles.
KIRBY J: In Strong I pointed out that the origin of the legislation seemed to be an 1871 United Kingdom Act, the Prevention of Crimes Act – this is at paragraph [57] in Strong – which was intended to deal with what were described at the time as the criminal class. That legislation was adopted in Australian States, as described in R v White (1968) 122 CLR 467 at 470, which refers to the Habitual Criminals Act 1870 (SA). They used to visit this Court in the earlier parts of the last century. The Court had to deal with them, but then they appeared to fall out of sentencing favour. The New Zealand statistics tend to suggest that it was very rare from 1982 but then it sort of has a revival in 1994, which was my recollection from Strong.
MRS CLARE: Yes. The Queensland legislation seems to be the model for what was adopted ultimately by Victoria and also the Northern Territory which concerned some of the cases.
GLEESON CJ: Part of the problem with which legislation like this is trying to grapple is the problem involved with a person who is manifestly dangerous but who is under ordinary sentencing principles looking at a sentence that will last a long time. There is a very difficult question as to what, if any, danger that person will constitute way down the track.
MRS CLARE: Yes, and that is not an insoluble problem under the Queensland legislation. The term “serious danger” as it is used in section 163, in my submission, does not mean and cannot mean certainty of offending. I think your Honour referred to the inherent uncertainty of danger itself and it must refer in the context that it is used to both the risk of reoffending and the serious consequences of that offending. That flows, in my submission, from both subsections (3) and (4) but in particular by the use of the term “severity of offending” in subsection (3). That is one of the three factors on which a determination of serious danger must be made, the severity of the actual offending itself. Then in subsection (4)(d) there is, of course:
the risk of serious physical harm to members of the community if an indefinite sentence were not imposed –
There are obvious problems with prediction but they are difficulties which must always arise in cases where the finite sentences are likely to be lengthy. They are the cases that really arise for consideration under this type of exceptional extraordinary preventative detention. So Part 10 itself, at its heart, must be considering cases where lengthy terms of imprisonment would otherwise be contemplated. When one goes to the definition, as I said, of “violent offence”, which is a point of eligibility, it includes those offences for which life imprisonment is the maximum penalty.
KIRBY J: But you are adding to many such sentences, and in practical terms to this sentence, a serious indefinite and potentially permanent deprivation of liberty which the common law has traditionally taken as a very serious matter and which this Court has said in Lowndes and subsequent cases is a very serious matter to be taken into account by the sentencing court. The problem I have here is, leave aside the suggested errors of fact and so on, there does not appear to be any reflection in the sentencing judge’s decision, or in the Court of Appeal, reasons of the fact that their Honours took the strictures of this Court into account and that was enough in Lowndes. Why is it not enough here, as a matter of important sentencing principle in the State of Queensland?
MRS CLARE: There is a fundamental distinction between Lowndes which I will come to in a moment, but insofar as the Court of Appeal is concerned it did have, in my submission, regard to those important principles. That is apparent from her Honour Justice Holmes’ judgment. The majority in fact agreed with what she said, save for her determination that there had been a relevant error in the exercise of the discretion.
So the Court of Appeal itself had regard to those important principles. It is true that in the sentencing proceeding itself there is no express reference to those particular principles but the way in which the matter proceeded, in my submission, underlines the fact that all parties involved were acutely conscious that it was a sensitive and very special proceeding. I say that not just because evidence was called over two days from expert evidence but by the way in which those issues were analysed by the parties and by his Honour.
His Honour gave very lengthy sentencing reasons extending over 20 pages, going through particularly the character, the seriousness of the offences and the expert evidence about his psychological condition. Those things underlined, in my submission, the awareness of the importance of the steps that were being considered.
GUMMOW J: But there is really a possibility of two statutory regimes, is there not? There is the ordinary one which would bring in the parole system and then there is the Part 10 one. At what stage, if at all, do you say one considers the displacement of the ordinary system? Those words, “instead of”, what, if any, baggage do they carry in this process?
MRS CLARE: It is further assisted by consideration of section 163(4) which sets out those matters that are not prerequisites for any finding of serious danger but which are mandatory considerations.
GUMMOW J: Does there not have to be some consideration of what the consequences of imposing the fixed term would be?
MRS CLARE: Yes, and that really comes from subsection (4)(d) and (e) which deals with risk to the community if an indefinite sentence was not imposed and the need for protection ‑ ‑ ‑
GUMMOW J: Yes, was not imposed and the fixed term system with its parole provisions operated. Is that bound up in (d)?
MRS CLARE: Yes, in my submission.
GUMMOW J: And another paragraph as well as (d)?
MRS CLARE: And in (e) which looks to the protection of the community which obviously comes into play once somebody is released. So Part 10 is contemplating, by the term “serious danger” in the context of section 163, a danger which is both present and also which has some future context. It has been said in a number of decisions that the primary question is present risk at the time of sentence but that there is an important consideration, a mandatory consideration as to the risk at the conclusion, or at a time when the prisoner is eligible for release.
The significant point I make out of that is that, in terms of the difficulties of prediction, future risk is not the test in itself. It is something that the court must inform itself about and it is something which must inform the sentencing discretion in determining whether or not there is a serious danger, but it is not the test. The test is whether in fact there is a serious danger.
There have been quotes from Lowndes referred to this morning. Lowndes and the Western Australian legislation concerns a different test, so Lowndes and Narrier and McGarry have a different test and it is critically different in the sense that under the Western Australian legislation, section 98, the court must be satisfied of the risk at the time of release, so that a determination of an indefinite sentence cannot be made unless the court is specifically satisfied of that. That is evident, for example, in Lowndes 195 CLR 665 at 668. The legislation is set out there and it is clear from subsection ‑ ‑ ‑
GLEESON CJ: I am not just following that point, Mrs Clare. You said, I thought rightly, that section 163(4)(d) and (e) require the judge to consider the risk of harm to members of the community if a finite sentence were imposed, that is to say the risk upon release.
MRS CLARE: Yes.
GLEESON CJ: What is the difference between that and the Western Australian legislation in substance?
MRS CLARE: One is a consideration and the other is a determination. That is that under the Western Australia legislation it is a prerequisite for the making of the order that the court be satisfied that the offender would be a risk or serious harm risk. I will pull up the legislation so I use the right words.
KIRBY J: Which paragraph? Is this in 5 in Lowndes?
MRS CLARE: I am sorry, this is page 668, in subsection (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 –
So it is a determination that at the time of release the danger exists. The difference between that and our legislation is that in section 163(4)(d) it is couched – firstly, subsection (4) sets out matters that the court must have regard to. So it is a mandatory consideration, and one of those considerations – not a test, but a consideration – is paragraph (d).
KIRBY J: Yes, but it seems to be a distinction without much difference because the court must have consideration of:
the risk of serious physical harm to members of the community if an indefinite sentence were not imposed –
and therefore you have to ask yourself, “Well, what if I don’t impose this?” and look forward and ask yourself, “Will that involve serious physical harm to members of the community?”
MRS CLARE: In my submission, the scheme of this Part 10 reflects the impossibility of definitive prediction. That is underlined by the review process which means that this order is not final but it is subject to ongoing review at a time which would not intrude into the prisoner’s ordinary eligibility for release, but there is a clear distinction, in my submission, between subsection (3) and subsection (4). Subsection (3)(b) says that the determination of a serious danger must be because of three things. They include “the severity of the violent offence”. Subsection (4) has other matters which are placed specifically by the legislation in a different category of mandatory consideration – not a mandatory finding. There is in fact a decision of Garlett v The Queen (2000) 111 A Crim R 336, which is a decision of Western Australia with the more onerous test, where the court said at page 354, paragraph 94 ‑ ‑ ‑
GUMMOW J: Just before you immerse us in that, Mrs Clare, could you just go back to section 163. I am just very puzzled at the interrelation between subsections (3) and (4). Subsection (3) says:
the court must be satisfied –
. . .
that the offender is a serious danger to the community because of –
(i), (ii), (iii), and (i) is “antecedents, character, age”, and then (4) tells you in determining what you have to determine in (3) you must have regard to “antecedents, age and character”. It seems to be double-counting. What is going on?
MRS CLARE: Well, perhaps, perhaps not. Again, there is a slight distinction between the two. If you look at (3)(b)(i), they are alternatives, so “antecedents, character, age, health or mental condition”.
GUMMOW J: Yes, that is right.
MRS CLARE: So presumably that means that he can be a serious danger because of one of those things but under subsection (4) in determining that the court has to have regard to all of those things. That is the only way I can reconcile it, your Honour.
GUMMOW J: I am not surprised judges find it difficult to work with this section.
MRS CLARE: Justice Anderson in Garlett at 354 at about a third of the way down said that:
In one sense, it is impossible to foretell the effect of a long prison term on a prisoner, but merely because successful rehabilitation cannot be ruled out does not mean that parole eligibility must be granted. The nature of the offences and the antecedent character of the prisoner who committed them are obviously very important matters and must weigh heavily with the sentencing court . . . They are the matters which usually will be the best indicators as to the likelihood that a parole period will serve its purpose and they are the very matters which the Judge in this case believed outweighed other considerations.
That is in relation to the indefinite sentence. With respect, those comments of his Honour are equally applicable to this legislation, that when a sentencing judge is confronted with this issue of dangerousness and also with the issue of a long sentence which is almost always going to be the case for the sorts of offences that are eligible for this provision then that judge is going to be faced with difficulties of prediction.
When one has a case such as the present where there is extreme offending, where there is longstanding entrenched anti‑social behaviour involving violence and sado‑sexual practices in a person who is still young and relatively healthy, or healthy and relatively young, the need for the protection of the community through the imposition of indefinite sentence should not be defeated by the difficulties of prediction at any given time in the future.
GLEESON CJ: Can I just be sure I understand how the system works in practice. In the present case, if the sentence stands, under sections 171 and 173, after 11 years there is a review, is that right?
MRS CLARE: Yes.
GLEESON CJ: If at the end of that review the court is not satisfied that the offender is still a serious danger to the community, then the court must order that the indefinite sentence is discharged and sentence the offender for the offences and the sentence imposed for the offences must be not less than 22 years, is that right, dating from the day he first went into custody?
MRS CLARE: Yes, it cannot be less than the nominal sentence.
GLEESON CJ: So the way this works in practice is that, as things stand at the moment, after 11 years there will be a review of the dangerousness of Mr Buckley and, unless the court is satisfied that he is still a serious danger, the indefinite sentence will be discharged and he will then be for the first time sentenced for the rapes and the other offences and the sentence that is imposed at that stage must be not less than 22 years dating from the day he first went into custody.
MRS CLARE: That is so.
GLEESON CJ: Could it be life at that stage?
MRS CLARE: There is no reason not because life is open as a maximum penalty.
GLEESON CJ: There is no reason why the judge in 11 years time might say, “I simply disagree with the District Court judge in the present case. I think that nominal term was far too lenient”.
MRS CLARE: Yes, it would come down to the ‑ ‑ ‑
KIRBY J: There could be arguments of double jeopardy in those circumstances, that based on a finding that he is of no further risk to the community he nonetheless ends up with a higher sentence. That does not immediately sound very attractive.
MRS CLARE: It is contemplated by the legislation that a sentencing judge could impose a higher penalty taking into account relevant considerations.
GLEESON CJ: It is expressly contemplated by section 173(3)(c).
MRS CLARE: Yes.
KIRBY J: But that would be read in the light of the general principles against increasing penalties in the circumstances that are posited, I would have thought.
MRS CLARE: We have no case law on it but ‑ ‑ ‑
GUMMOW J: You have to read 175 with this too, have you not, with this 173(1)(b) sentence? The ordinary system, if I might use that expression, with remissions does not apply.
MRS CLARE: Yes.
GUMMOW J: So, even when it is – you say it is a sentence. That is right but it is still not an ordinary sentence.
MRS CLARE: No, that is an exclusion of remissions but not parole eligibility. In this case what is ‑ ‑ ‑
GUMMOW J: So parole eligibility would still apply, would it, to the 173(1)(b) sentence?
MRS CLARE: Yes, so he would then be entitled to apply in the ordinary course. The unusual feature of this case perhaps highlights an anomaly in the intent of the legislation perhaps because his parole eligibility on 22 years would be 15, as you have heard, but under Part 10 the review is determined at the halfway mark, which is 11 years. So 11 years or up to 11 and a half years because of the timeframe allowed. That means that there would at least be two review periods before he would be eligible for parole in the ordinary course and in fact there could be more because he is entitled to make other applications under the legislation.
If I could go back briefly, I spoke about the focus on the present risk as well as the consideration for the future. There have been a number of considerations of that in the State courts. One is Moffatt and his Honour Justice Hayne when he was on that court considered that same issue and concluded that it was a present focus with consideration of the future. That is at pages 247 to 248. Similarly in Queensland in the case of Stone ‑ ‑ ‑
KIRBY J: What case was that?
MRS CLARE: That was Moffatt [1998] 2 VR 228, the Queensland case of Stone [1999] 2 Qd R 413. At 419 the Chief Justice approved of previous statements by the Court of Appeal in Queensland as to the need to consider the future as well as the present. It was also a line of authority which has followed in the Northern Territory under the same legislation in the case of Green. It was an unreported judgment of the Northern Territory Court of Appeal in 2000 – no, it is reported at 109 A Crim R 392 at 396 to 397.
My central submission in this case is that there was no miscarriage. I think the Court has raised the question of whether or not there is, in fact, a discretion here, or where is the discretion, your Honour Justice Gummow raised. There are obviously mandatory requirements under Part 10 for the imposition of such a sentence but there is also a discretion in the actual assessment of the risk itself. That was the approach taken by this Court in Lowndes 195 CLR, different legislation but similar issue, and the Court considered that particularly in paragraphs 38 and 39, 479 and concluded that there was a discretion and that if there was no error in the exercise of that discretion, however ‑ ‑ ‑
GUMMOW J: What is the discretion? Just tell me what the discretion is.
MRS CLARE: The decision to impose an indefinite sentence.
GLEESON CJ: On the ground of the danger to the community.
MRS CLARE: Yes. The provision ‑ ‑ ‑
GUMMOW J: You say there can be a danger to the community but I do not go ahead? There may be a serious danger but I am, nevertheless, not going to do it?
MRS CLARE: It is difficult to contemplate ‑ ‑ ‑
GUMMOW J: Exactly, and that is why it is not a discretion.
MRS CLARE: But that is the way in which this Court considered it in Lowndes. The provisions themselves speak of a court having the power, “may . . . impose”, if this finding is made, but in reality if there was a serious danger of serious harm to the community which required the protection of the law, then not to impose an indefinite sentence would be a clear error.
GLEESON CJ: Is not the point of the repeated and continued references by this Court to the exceptional nature of this sentence that involved in this conclusion to impose an indefinite sentence is a conclusion that a finite sentence will not do?
MRS CLARE: Yes.
GLEESON CJ: That is the whole point of saying that this is exceptional, is it not? Exceptional to what? Exceptional to the normal system which proceeds by way of finite sentence. So whether or not it was done in this case and whether or not it was done rightly in this case, at the essence of this process is a conclusion or a judgment that the imposition of an ordinary sentence will not satisfy the requirements of the case.
MRS CLARE: Yes, and that, in my submission, is this case.
GLEESON CJ: The relevant requirement being the protection of the community?
MRS CLARE: Yes. If there is a conclusion that the protection of the community requires something more than the finite sentence, then this sentence should be imposed.
GUMMOW J: This man seems to have been in custody for 1,200 days.
MRS CLARE: Yes, he had just under three and a half years in custody before his sentence.
GUMMOW J: But he pleaded guilty.
MRS CLARE: Yes.
GUMMOW J: How could that happen?
MRS CLARE: His arrest was in 2000. The matter was determined by the Mental Health Court. His application ‑ ‑ ‑
GLEESON CJ: There was a question whether he was fit to be tried at one stage.
MRS CLARE: Yes, that was in March 2001, so there is still a very lengthy delay before his sentence and it is not apparent on the record why that is so. All that we know is that he was getting psychiatric reports.
GLEESON CJ: Dr Moyle’s psychiatric reports indicate that the first issue he was asked to address was whether he was fit to be tried.
MRS CLARE: Yes.
GLEESON CJ: This question of indefinite sentence seems to have come into the picture fairly late in the piece, does it not?
MRS CLARE: The application for an indefinite sentence can only be made after conviction, so only after he pleaded guilty, but the issue of dangerousness was raised very early and in fact when Dr Fama and Professor Yellowlees prepared their reports to the Mental Health Court on the issue of soundness of mind, they were so concerned about that issue that they specifically raised a warning for any future sentencing court, so ‑ ‑ ‑
GLEESON CJ: I suppose everybody was proceeding on the assumption that it was common ground that he was not going anywhere in a hurry.
MRS CLARE: No, and there is also reference in the material to him changing solicitors a number of times, so that may also account for delay, but he did spend a long time in pre-sentence custody but that was custody which is taken to be time served under his sentence so, for the purpose of the review under Part 10 and also for parole eligibility, the sentence is backdated to his first incarceration, the remand custody.
GUMMOW J: What is the legislation in Queensland that establishes the Mental Health Court?
MRS CLARE: The Mental Health Act. In this case all of the psychiatrists were in agreement that this man represented a serious risk, a significant risk, not only now but for a long time into the future and all of the ‑ ‑ ‑
KIRBY J: I know one has to be careful about the adjectives but I think a couple of them talked of moderate – it is in Mr Smith’s submissions.
MRS CLARE: Yes, I can take your Honour through some of those in a moment but ‑ ‑ ‑
KIRBY J: No, we have the references to them.
GLEESON CJ: “Moderate to high” was the expression they used.
MRS CLARE: “Moderate to high” was the most favourable perhaps. That was Dr Moyle who was quite sympathetic to the appellant.
KIRBY J: Mr Smith says that that is what the Court should conclude, so he accepts that it is moderate to high.
MRS CLARE: Yes, which Dr Moyle defined to mean about 50 per cent, a 50 per cent chance of reoffending. He went onto say, in as far as consideration of the future is concerned, that if certain things were in place he described him as having a “relatively low risk”, I think are the words that he used.
GLEESON CJ: There was a reference to the possibility of chemical castration, was there not?
MRS CLARE: Yes, nobody seemed to think that that really was an answer. Professor Yellowlees raised it but it was not something that anybody seemed to seriously consider as an answer to this man’s problems and in fact ‑ ‑ ‑
GLEESON CJ: I thought Dr Yellowlees thought that there might, in 20 years time, be other drugs that would be available.
MRS CLARE: Yes, but he could not say at this stage. He said that there is a possibility, I think, or that it is likely but he could not say beyond that and, in my submission, this determination of dangerousness really has to be based upon current knowledge and current information. The ability of the experts to predict dangerousness will obviously be refined as data improves and the science develops, but at any point in time the issue of serious danger has to be addressed by the sentencing court on the available ‑ ‑ ‑
GLEESON CJ: Professor Yellowlees’ opinion was summarised, as I understand it, on page 222 and that is the opinion that was accepted by the primary judge and by Justice Holmes and on the basis of that Justice Holmes said that the facts and the expert opinion spoke for themselves on the question of exceptional circumstances.
MRS CLARE: Yes.
GLEESON CJ: It was on that page 222 a little higher up that I got this reference to chemical castration.
MRS CLARE: The view of Professor Yellowlees was that the appellant fell into the most high risk group of offenders and that he considered that the strength of the risk might diminish but that drop off, if you like, would be into the future. He nominated 15 to 20 years, and he said that at that point it would be a graduated decline rather than a sharp drop. The page reference to that is at page 40, line 15. Also your Honour has referred to page 222. Also on that page – page 39, line 42. That time period of 15 to 20 years before there is a diminution in the risk also seemed to be a point also referred to by Dr Kingswell who went on to say that this man would present a danger until he was old and frail.
The approach of the defence counsel at sentence was not to take issue with the fact that the appellant was a serious risk or that he would be a serious risk for 15 years. Defence counsel challenged, or attempted to get concessions from the psychiatrist that at 15 years there would be a drop in the offending.
The answers of the psychiatrist could not provide any comfort for the appellant because nobody was saying that in 15 years’ time there was going to be a significant erosion of the risk of serious harm here and, in fact, that term of 15 years does not provide much comfort for the appellant because at the time he was being sentenced, or at the time these psychiatrists were giving their evidence, he had already served the three years. So his eligibility for parole under a nominal sentence of 22 years would be in another 11 and a half years. So this issue of any fall off in the risk at 15 years did not assist in determining that there was some security for the community at the time of his eligibility because that predated it by a number of years under the nominal sentence. Dr Fama also, in speaking of extreme dangerousness at page 199 said that this man had a very poor prognosis and that he would be a significant danger to the community past 45.
All of the psychiatrists considered that the diagnosis of sexual sadism was a strong predictor.
GLEESON CJ: Page 199 is not Dr Fama, it is Dr Yellowlees.
MRS CLARE: Dr Yellowlees, I am sorry.
GLEESON CJ: Were you intending to refer us to Dr Fama, too?
MRS CLARE: Yes, page 189. He says:
It would, however, be misleading for the court to gain any impression that Jason’s psychiatric impairments – however variously classified – might be amenable to any ready treatment. Jason’s dangerousness to the community would be assessed better by his actual record of offending than by regard to his theoretical psychopathology.
Dr Moyle, in terms of this pattern of sexual sadism which flowed not only from the offences themselves and from his statements that he intended and sought to inflict anguish and suffering on his victims, and not only from his statements that he was sexually aroused by reading later the police statements of those victims, but also by the cruelty in his rape of the animals and also in the fantasies that he had of torturing and degrading women. Dr Moyle, at page 297, line 40 said that that diagnosis of “sexual sadism is the most worrying” and “the most relevant” diagnosis.
Dr Kingswell said it was the strongest predictor of recidivism, page 50, line 26. He also referred to the fact that the victims were “strangers” and Kingswell said that the assault upon strangers augers for the worst outcome for the appellant, that was page 219, line 20. Dr Yellowlees, at page 222, line 35 speaks of the major concern being “sexual sadism” for long term considerations for the appellant.
In relation to the three errors that were raised first by her Honour Justice Holmes – and I say that they were raised by her Honour because it is significant, in my submission, that they were not errors that were picked up by anyone prior to that. In my submission, if they are properly classified as errors by the primary judge, then they are not material in the sense that they did not influence and could not be taken to have influenced his decision to impose an indefinite sentence. Alternatively, my submission is if there was an error in any one of those matters such that the sentencing discretion miscarried and the matter had to be considered afresh, on all of the material there is really only one decision that could be made on this application for indefinite sentence.
GLEESON CJ: What are we concerned with? Are we concerned with the judgment of the Court of Appeal or the judgment of the primary judge? It is a little complicated by the fact that Justice Holmes in the Court of Appeal said, “I think we ought to consider this matter afresh and, having considered it afresh, the result was right”, and then you find various comments in her reasons about that such as that at page 341, line 25 on this question of exceptional circumstances. The other two said, “We agree with everything Justice Holmes said except that we don’t think that the errors that she attributed were material and we for our part would refuse leave to appeal”. Should we treat the Court of Appeal as having reconsidered for itself the issues under section 163 or should we treat the Court of Appeal as having decided that there was no occasion to reconsider for itself those issues which would mean that our concern would be focused on the primary judge.
MRS CLARE: As attractive as it would be to argue the first, I think that I am really restricted to identifying that the Court of Appeal by majority simply confirmed the decision of the primary judge. I say that because at page 336 of the record book, in paragraph [7] of the Chief Justice’s reasons, he dismisses the arguments about the errors as not being material and then says there was:
a comprehensive judgment covering numerous matters, which discloses, through acceptance of the evidence of Professor Yellowlees and Dr Kingswell, a compelling case for the imposition of the indefinite sentence which was imposed.
So although it is close to saying that the court itself was satisfied on the material, it is qualified by reference to the evidence of Dr Kingswell and Professor Yellowlees who gave stronger evidence than the other psychiatrist, Dr Moyle.
Now, defence counsel himself conceded that the point of distinction between all three psychiatrists was small, that it was just a matter of degree in risk and that all of them – I think this is about page 28 – at the very outset of the proceedings he acknowledged that there were difficulties for the defence in the views of all of the psychiatrists as to risk and in his concluding submissions he again conceded that there were difficulties faced by the defence upon the evidence that had been given. Dr Moyle actually said at page 82, line 15:
I am agreeing with the [other psychiatrists] there is a considerable risk –
and he went on to say that risk assessment is hard but he thought that this fellow had characteristics which tended against predictability. That seems to be distinction, because he could see at various stages remorse where the others could not and he was not prepared that there was a high psychopathy, whereas the others thought that there was.
But Dr Moyle, the most favourable psychiatrist, was in agreement that the offending that was likely should this fellow reoffend was at the extreme end. He said that at page 70, line 35 and he said that the present risk was “moderate to high”, he thought in the 50 per cent range, but he said that that would increase to almost certainty if he was wrong about the psychopathy, if there was in fact high psychopathy as the others had thought. He estimated that the risk of this fellow reoffending was – two out of three chances was how he put it at page 79, line 35 and again at 255, line 30.
He considered that in the future, and he said it did not matter at what point he was released but only if it was in the future, the risk could go down to one in three or one in four chances of reoffending, so that is a 25 per cent or 33 per cent chance of reoffending upon the immediate release of the appellant and he said that the risk of recidivism obviously would increase the longer he was at large at page 71, line 30 to 40, page 72, line 30.
GLEESON CJ: Well, the key passage in the reasoning of Professor Yellowlees which seems to have been persuasive with all the judges in Queensland is, as I understand it, on page 222, line 40.
MRS CLARE: Yes.
GLEESON CJ: Where he seems to be saying if a finite sentence is imposed then whenever this man is released it is essential that he be carefully monitored and most probably treated with drugs.
MRS CLARE: Yes.
GLEESON CJ: Under what circumstances could treatment with drugs upon release be obligatory?
MRS CLARE: It would depend upon the parole authorities then for the length of ‑ ‑ ‑
GLEESON CJ: Condition of parole?
MRS CLARE: Yes, and in terms of supervision, so that would then be relied upon, those authorities having the resources to then supervise as well. Dr Kingswell also referred to the need for “some enduring order” in the context of this man being a risk until he is old and frail. He said that there ought to be some enduring order, obviously in contemplation of some release, and that is at page 220 at line 5.
Balanced against that, even if one could consider the length of time on parole and if the court could be satisfied that the corrective service authorities had the resources to properly police such an order, if they were to make that, it is something that is outside the control of the court and the possible repercussions for a failure in that sort of process is so gross, in my submission, that it is not an answer to the application for an indefinite sentence.
GUMMOW J: Well, partly bound up in that is the legislative Executive choices as to how they fund these institutions, is it not? You talk about adequacy of resources, which they are tasked to provide adequate resources for their parole system. You say the consequence of that seems to be that the rock and the hard place is the individual with the court being constrained in some way. Why should the court not assume that the government is doing its task by funding these bodies, et cetera?
MRS CLARE: Yes, I take your Honour’s point, but I just move back to the fact that Professor Yellowlees never seems to couch the sufficiency of that option in firm terms. That is he is looking to the possibility that in the future adequate drugs are available to this man.
Tied up with his anti‑social offending, of course, is also the propensity for violence itself which is fairly graphic by his own admission and even worse on his own fantasies of violence, so when considering the type of offending that he is liable to do, it goes beyond really his libido. When one considers what he said about these offences themselves, they were about inflicting pain. He wanted to inflict pain and he said, in respect of one of the victims – I think in Dr Moyle’s report at about pages 169 to 171 he spoke of killing the victim, that he felt so powerful he could have snapped the victim’s neck but he did not because he instead thought it would be better to make her suffer. He wanted her to feel pain. He said if a man had come along he was likely to have beaten him to death.
So when considering the risk that this man poses, it is not simply about him having an urge to go and have sex with someone. It is much more complex than that. In the same way that he talked about the power and the excitement of raping the animals being analogous to the power and excitement he felt of raping the women, there is a whole layer of added violence and propensity that goes with his offending beyond just what could be cured by a drug.
That perhaps brings me to that complaint about whether or not he had shot the horses before he had sex with them or after. In my submission, really, in the context of this case, it is not a distinction of any great relevance but, in any event, his Honour expressly disavowed the notion that he would be relying upon the fact that he killed the horses, page 105, line 20. He said one cannot speculate. So he specifically said that that was not something that he could rely upon. But quite apart from the notion of the horses being killed, there were other aspects of the evidence in fact which raise chilling implications, and I have already touched on those. The reference at 170, line 40 about the urge to break the victim’s neck, the sadistic urges, the fantasies of mass killing, and so forth, at page 105, line 3.
GLEESON CJ: Mrs Clare, if that is a convenient time, we will adjourn until 2.00 pm.
MRS CLARE: Thank you, your Honour.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.03 PM:
GLEESON CJ: Yes, Mrs Clare.
MRS CLARE: If I can just briefly touch on something that I was finishing before lunch, and that was in relation to this issue of the nature of the offending being something more than purely sexual offending, that in looking at risk it would be wrong to treat the propensity of this man as simply sexual offending. The two further references I have are these. Firstly, in relation to impulsive rage, reference at page 164, line 15, and that is in the context of fights. The other is the appellant’s reference to moods that would overcome him where he would feel that he was at risk of killing the very first person that came along. That is at page 174, line 10. Just in relation to that, Dr Moyle gave a tentative diagnosis about a psychosis which he later withdrew and said there was no evidence of that.
KIRBY J: The fact remains though, if we look at objective facts as distinct from things that were said, the objective facts are that there were three collections of incidents with three victims. They were grave and very serious, they all occurred within the space of less than a year. The appellant was 27 years of age and over all of his life, save for these three incidents, he had not been arrested and has not been charged, nor convicted, of any criminal offences. There are acknowledged acts in relation to animals but he has not been charged with any criminal offences in respect of them. We know of the dangers and difficulties of predicting criminality which are acknowledged in the medical reports and so on.
So effectively you have to ask within the principles that have been laid down by this Court, looking at the objective facts, was this an extraordinary case that called out for this form of added punishment? I think we have to be just a little careful in not allowing our revulsion or horror of the matters relating to animals, of which he has not been charged with a criminal offence, to overwhelm the law’s response to the three clusters of incidents involving three victims in less than a year.
MRS CLARE: I take your Honour’s point but in response to that I would say firstly, yes, this does have to be an exceptional case. That is a principle which we accept. But that is different from saying that the offences themselves have to have the same degree of exception. That this has to be an exceptional case, is an exceptional case on all of the features that are relevant. It is not like punitive sentencing, a matter where the court restricts itself to the criminal history and the offences themselves.
It is preventative detention so the fact that the criminal history itself was minor is under the legislation a consideration but it cannot be determinative and the whole flavour of this man’s risk comes from what we know he did in respect of those three women, why he said he did it, what he was seeking to do, that is, to inflict pain and degradation and basically psychological torture on these women, and we look at that in the context of his character and those patterns of behaviour that he had adhered to from the time he was 15 until he was 26, I think is the evidence. That is that he was engaging – and to say it is simply bestiality really glosses over what he admitted to Professor Yellowlees in respect of what he was doing with those animals.
He told him that his behaviour with those horses and goats and cattle was commonly cruel, that he would seek to damage, and he would engage in this behaviour sometimes daily for up to a month over those 11 years. He engaged in brawling as a lifestyle. He boasted about the serious damage that he inflicted in the course of that lifestyle in fighting with other people. On one occasion, I think page 173, he talks about an explosive rage where he takes out 10 bouncers and the substantial damage that he causes on that occasion.
It is, as was said in the case of Garlett, a case where his character and the offences themselves really inform the propensity for the future, and because they are so extreme and because in addition to these things he has obsessed with fantasies of horrible violence, inflicting horrible violence and torture of extreme kind, of ripping people’s hearts out – even in prison – of mass murder, of blowing up towers, of killing many, many people.
His account was that he would engage in some of those things, those fantasies, for hours, even when he was sober. That is the complex personality. Your Honour mentioned alcohol as one of the aspects that could be treated but the personality of this man is much more than a sexual dysfunction or an alcoholic problem. It is a personality malfunction.
KIRBY J: I have not expressed it very well but what I am trying to express in the context of this type of case is what Lord Atkin said in relation to that old controversy about judge’s impressions of truth telling. He said, “I’d rather have an ounce of actuality and logical evidence than tons of judicial impression.” The question is what is the ratio here between a lifetime up to age 27 with three horrible incidents with multiple crimes within them involving degradation and violence to three women as against the fact that, on the face of things, he did not commit or has not been charged with any other offences of violence against human beings. So it is just a matter of not getting carried away by what he says because people say all sorts of things about their fantasies, but by what he did.
MRS CLARE: In my submission, his past was much more than simply talking, that he actually reflected some fundamental serious dangers in the way that he lived his life. One might have a philosophical difficulty with the notion of preventative detention but it is just that, it is preventative detention. It does not require the court to wait until there has been an entrenched pattern of conviction, it is about looking at all aspects, and that is why section 163 itself focuses in on character as well as the severity of the offence itself.
If I can address now the error that is said to arise on the issue of alcohol. That is the quote from his Honour at 108 of the record book where he attributes evidence to Professor Yellowlees about the appellant blaming alcohol. In fact, that evidence seems to come from Dr Moyle rather than Professor Yellowlees. His Honour, I might say as an aside, in the way he raises that issue at 108 does not indicate that he is actually relying on it in terms of his reasons for imposing an indefinite sentence – the Chief Justice in the court below actually referred to it as a tentative expression – but it is, in my submission, a reflection of the evidence of Dr Moyle. I say that because, firstly, Dr Kingswell said that if the appellant was blaming alcohol as the source of his problems and seeing that as a problem then that would create a poor prognosis for the future, for example, at page 58, line 15.
Dr Moyle, when questioned by his Honour, conceded that the appellant had come, although he originally did not, to blame alcohol for his problems. That is at page 75, line 43. That is consistent with the evidence of Dr Moyle in his reports at page 237, line 25 and again at 241, in paragraph 40. As I said, it is clear, on everybody’s evidence, all of the psychiatrists’ evidence, alcohol was not the simple and sole cause of this man’s problem, that he was a disturbed personality.
In addition Dr Moyle talks about the sexual abnormalities and the sexual sadism. The evidence of Professor Yellowlees was that the horses were assaulted often while he was sober - at page 35, line 30. At page 171 there is reference to the fantasies he had for hours when he was sober and at other points there is reference to aggression while he was sober.
GLEESON CJ: How does this system of preventive detention relate to the consideration that protection of the public is itself a factor to be taken into account in ordinary sentencing? I have always thought that an interesting exercise in advocacy would be to explain the decision in Veen [No 1] to the relatives of the victim in Veen [No 2], but Veen [No 2] acknowledges that danger to the community is a legitimate matter to take into account in ordinary sentencing.
MRS CLARE: Yes.
GLEESON CJ: How does that fit in with the relationship, whatever it is, between this regime of preventive detention and ordinary sentencing?
MRS CLARE: Veen [No 1] and [No 2] still maintain that there has to be proportionality between the criminality exhibited in the offence itself and the sentence, and that can really be the only distinction. This is not a question of proportionality under Part 10.
GLEESON CJ: But where he is convicted of six offences, each of which carries life imprisonment, as I said at the beginning, you have plenty of room to manoeuvre.
MRS CLARE: Yes. Well, providing a judge accepts that, that is the appropriate finite sentence, and this judge did not.
GLEESON CJ: Was one of the bases on which the Crown submitted that an appropriate finite sentence was life that Veen consideration?
MRS CLARE: I do not think Veen was expressly referred to but that must be part of the rationale. Section 9 of the Penalties and Sentences Act which sets out the principles in relation to the purposes of sentencing specifically refers to protection of the community as one of the matters that must be considered in all sentences.
GUMMOW J: Section 9(1)(e).
MRS CLARE: Yes.
KIRBY J: The trouble with using “life” in a case like this is that you thereby exhaust the armoury of the law and you make no provision for people not killing their victims and you make no provision for a number of incidents and pleading guilty and saving the community a lot of money and saving the victims the ordeal of having to go through it all again. The law has to conserve its armoury. No doubt that is why the sentencing judge did not proceed to a life sentence in this case.
MRS CLARE: Having the possibility of an earlier release date for rehabilitation actually should serve as some encouragement for the offender to work towards that precise thing. As I said, in terms of this sentence it is possible that this man will not serve any extra time at all, notwithstanding the fact that this indefinite sentence has been imposed because he will have at least two, probably more, opportunities to make application for the discharge of the indefinite sentence.
KIRBY J: But it is switching our sentencing process back to Norfolk Island. It is going back to the McConachie idea that we will just all throw them in and then we will let them out when administrators in private committees that are not like open courts decide. That has its own downside.
MRS CLARE: This is different again because it is the Court which is determining whether or not the risk remains. So, unlike a life sentence, once the 15 years is reached, it is simply a matter for the Parole Board or the Corrective Services Authority. This is a matter for the Court first, so in that sense it meets your Honour’s argument about open justice. It is exactly there and there are requirements for reports and so forth to be had.
KIRBY J: The only trouble is that with our very modest salaries we do not get issued with a crystal ball.
MRS CLARE: No.
KIRBY J: A little library, desk, pleasant people appearing before us, but no crystal ball so far.
MRS CLARE: But the onus even on review of course is still on the prosecution to establish risk. If it cannot be established at that point, then the order disappears. Your Honour Justice Kirby also referred earlier to the sexual offenders treatment program. In my respectful submission, that was no answer in this case. Her Honour Justice Holmes said that those prospects could have given the community little comfort. That has to be so when one considers, as I said, that the problems of this man are much more entrenched than sexual. Further, the evidence of both Kingswell and Moyle was that if this fellow started and actually failed to successfully complete the program, his prognosis of reoffending would actually worsen – page 53, line 36 and 72, line 26.
I think the issue of the dangerous offender legislation, the possibility of using the same legislation as arose in Fardon is something that could be considered in a case like this. My submission is that that is not relevant to the issue of the sentencing judge determining serious danger and I say that because section 163(4)(d) talks about risk if the sentence were not imposed and that, in my submission, has to refer to eligibility for parole and not some possibility of some future exceptional intervention as the dangerous offender legislation is.
If that were not so, it would mean that any sexual offender who could potentially be the target of a dangerous offender application would be ineligible for an indefinite sentence under Part 10. That cannot be right because Part 10 specifically contemplates offences of rape, sodomy and other sexual assault. That is in section 162 which defines “violent offence”, specifically refers to those sexual offences. So the dangerous offender legislation at some time in the future as a possibility is not an answer to whether or not a person is a serious danger.
GLEESON CJ: I notice that Professor Yellowlees in one sense thought it would have been better if he had been schizophrenic or suffered from bipolar disorder because those things are amenable to treatment. The fact that he did not have a mental disorder of that kind made him harder to deal with.
MRS CLARE: Yes. I think it is fair to say all of the psychiatrists say he does not suffer from any disorder which is treatable in itself – non‑amenable to treatment from Dr Fama, Dr Kingswell.
KIRBY J: But he did do well in the community in the sense that he was employed. The solution here might be that he should go to a rig. That seems to be where he operated well and he had a girlfriend who herself made some complaints about his sexual demands but he did operate within the community. I mean, the community is made up of a whole range of people.
MRS CLARE: You can only get a small picture of how he is operating from what he says.
GLEESON CJ: It takes all kinds to make a world.
MRS CLARE: I beg your pardon, your Honour?
GLEESON CJ: It does not matter.
MRS CLARE: But his working on the oil rig which took him out of the community and at sea for long periods still allowed him to commit three rapes in nine months. The girlfriend that was referred to was somebody living in another town that he indicated he had been in a relationship with for 12 months, though nine of those months he was raping other women. There is no greater sense of the relationship other than what he says.
Insofar as his employment is concerned, he seems to have jumped from job to job as well. Although he had this last job for a while he had also resigned from it and then gone back to it. There were brawls on the rig, there was drinking problems and so forth. He was out with the animals frequently. It is misleading to say simply that he was carrying on a normal life apart from these offences. He certainly was not, in my submission.
GLEESON CJ: According to the evidence for over about 11 years he was having relationships with animals of various kinds on a daily basis for up to a month at a time.
MRS CLARE: Yes, he was also for that same 11-year period, or for longer, I think, acting as a peeping tom, prowling around neighbourhoods and peering into windows and masturbating. That is what got him the name of a prowler and pervert. The other complaint of error error in the sentencing remarks is in relation to the issue of boastfulness - at 105, line 20 where his Honour says this raises another concern. What his Honour says is part of the summary of Professor Yellowlees’ evidence. The judge himself draws his own conclusions about remorse at 110, line 15 where he concludes that there was little if any remorse and he said that he accepted the evidence of Professor Yellowlees. It is accepted that Professor Yellowlees never said that the appellant was boasting about these offences but the extent of the error can be confined. It is not as big as it appears at first blush. There is ample evidence that there was no remorse by the appellant. All of the psychiatrists including Dr Moyle had come to the conclusion that by the time of the sentencing proceeding the appellant had become egocentric in his attitude to the offences. That is, he was focused on himself rather than on consideration for the victims.
Professor Yellowlees spoke about the boastfulness of the appellant in relation to anti‑social activity and he made actual statements that were quite close to that which his Honour summarised in the sentencing remarks but he did say under cross-examination that he had not boasted to him about the offences themselves at 38, lines 30 to 45. At 222, line 25 Professor Yellowlees says that the appellant was:
an extremely dangerous man . . . aggressive, cruel, violent and repeated offender . . . who showed little remorse, and in fact, some pride, in his anti-social actions.
That is very close to what his Honour summarised in the sentencing remarks. Throughout the material there is reference to boastfulness in relation to his fighting exploits - 173, line 30 is one. Dr Yellowlees said that he was happy to talk about the animals that he had assaulted. He boasted about his sexual prowess. The Chief Justice in the court below also referred to some writing material which the Court does not have. It seems to have been left out of the record book but I can hand it up.
It is some writing which was given to Dr Fama in 2000 and it is clear that this is where that quote that the Chief Justice used at page 335, it is clear that this is where the quote comes from, writing from the appellant, that the very first entry under “frame of mind before rapes” was that:
“I feel like this powerful beast like a warrior with happy aggression but so righteous. I can make people suffer and feel pain so that they can feel clearer”.
HEYDON J: Was this in front of the trial judge? Was this the sentencing judge?
MRS CLARE: Yes, it was. I have actually taken that from the Court of Appeal record book and page 266 is the pagination from the Court of Appeal.
GLEESON CJ: What about the attempt to blame it on the drink?
MRS CLARE: Yes, that was, in fact, the evidence of Dr Moyle.
GLEESON CJ: Where do we find that?
MRS CLARE: At page 75, line 43, which is where Dr Moyle said that he does now blame alcohol for his offending, although originally he could not remember or did not mention the alcohol.
GLEESON CJ: I cannot quite pick that up. Just a minute, page 75 ‑ ‑ ‑
MRS CLARE: Page 75, line 43.
GLEESON CJ: I am sorry, there are numbers on both sides of the page. Do you have page 75 in front of you?
MRS CLARE: Yes. Does your Honour want me to read it?
GLEESON CJ: No, I just want you to show me whereabouts ‑ ‑ ‑
MRS CLARE: At the very bottom of the page. It is the last answer.
GLEESON CJ: On that page?
MRS CLARE: Page 75:
But is it your opinion that this particular accused puts it as simplistic as that, “If I drink offences will or might occur, if I don’t drink they won’t occur.”?
He stumbles a little and then he says:
I think he does do that but I don’t necessarily see – I mean, one of the big arguments originally he couldn’t remember –
and then he goes on. In Dr Moyle’s report at page 237 at about line 25 he says something similar. He says:
He recalls that every incident leading to a Court appearance, was after he had been drunk. He hates people, gets intoxicated, feels angry and takes it out on other people.
And, again, at page 241 in paragraph 40, talks about alcohol.
GLEESON CJ: Which is the passage in the judgment of the trial judge where ‑ ‑ ‑
MRS CLARE: Page 108, line 28.
GLEESON CJ: He says, “to use Professor Yellowlees’ words”.
MRS CLARE: Yes. Professor Yellowlees does not say that so far as I can find.
GLEESON CJ: He seems to be confusing it with what Dr Moyle has said.
MRS CLARE: Yes, and the context for the prognosis that flows from simply blaming it on alcohol comes from the evidence of Dr Kingswell. Dr Kingswell said that if he did simply blame alcohol that would be a poor prognosis at page 58, line 15.
GLEESON CJ: But the sentence to which Justice Holmes took exception is an explanation commencing with the word “That” of the previous sentence, is it not? It is not a finding, is it? Correct me if I am wrong. It is not a finding of fact that the offender was placing the blame for what he did on the alcohol.
MRS CLARE: No.
GLEESON CJ: It is a sentence following a previous sentence when he said, “I have inquired on occasions” about something, and he is explaining what he inquired about.
MRS CLARE: Yes. He reaches no conclusion about it or does not suggest that he is using that to then link to the fact that he is a serious danger.
GLEESON CJ: His reference to inquiring about some simplistic situation is obviously a reference to page 75, line 41, where he uses the word “simplistic”.
MRS CLARE: Yes.
GLEESON CJ: And he seems to say his inquiries did not lead him anywhere, that the problem is more deep‑seated than that.
MRS CLARE: Yes.
GLEESON CJ: Well, Justice Holmes seems to have attributed to the trial judge a finding of an attempt to deflect blame. Correct me if I am wrong, but the only error that the trial judge has made is that in seeking to identify a source of inquiry that led him nowhere he referred to Professor Yellowlees instead of Dr Moyle.
MRS CLARE: Yes, that would be my submission and that seemed to be the conclusion of the majority as well. The Chief Justice at page 336 in paragraph [5] referred to it as a tentative expression.
GLEESON CJ: Yes, but the Chief Justice did not pick up the fact that the reference to the simplistic situation was in fact a reference to some evidence, some evidence that led nowhere in the opinion of the trial judge, but it was the evidence of Dr Moyle, not the evidence of Professor Yellowlees.
MRS CLARE: Yes. I think it seems that nobody below realised that there was, in fact, evidence from someone.
If I can conclude, my submission is that whether one classifies the appellant as in a high risk group, as did Dr Kingswell and Professor Yellowlees, or whether one refers to him as a moderate to high risk of offending, the extremity of the offending at risk, the propensity for extreme offending by this appellant is such that the protection of the community required an indefinite sentence to be imposed.
My submission to the Court is that her Honour Justice Holmes was correct in concluding, when she considered this matter afresh, that such an order was inevitable. If I am wrong about that and the Court concludes that there has been error in the exercise of the discretion and that an indefinite sentence is not an inevitable conclusion from the material, then it is my submission the appropriate course would be to remit this matter back to the Court of Appeal. That appears to have been the approach of this court on most previous occasions and, in particular, I refer to Thompson ‑ ‑ ‑
GLEESON CJ: It will be necessary to look again at the detail of the reasoning of the primary judge, but if we were to take the view that there is ample material here upon which an order for preventive detention could have been made but the primary judge did not adhere to the principles laid down by statute and by decisions of this Court, then a possible point of view is that because the majority in the Full Court dismissed the application for leave and did not exercise the discretion for themselves it ought to go back to the Court of Appeal to exercise the discretion.
MRS CLARE: My submission is that if the Court concluded that Justice Holmes was correct the Court could similarly dismiss the appeal on the basis that an indefinite sentence is an inevitable result. Section 668E of the Code which deals with ‑ ‑ ‑
GLEESON CJ: It is hard to see how an indefinite sentence could ever be an inevitable result. It is not hard to see how the view could be taken in this case that an inevitable sentence is certainly a possible result but it would be
difficult to see how in any case a view could be taken that an indefinite sentence is an inevitable result, is it not?
MRS CLARE: If the undisputed evidence as to the extent of the risk and – in my submission, there is such a case and this is one of them, where the common evidence, the unchallenged evidence, the level of agreement between witnesses is such that it places the degree of risk at a point where it would be perverse not to impose a sentence which provides for the protection of the community.
GLEESON CJ: Thank you. Mr Smith, that business about deflecting the blame to alcohol is a red herring, is it not?
MR SMITH: I submit not, your Honour. I would submit 108, if one reads it in its entirety in that paragraph ‑ ‑ ‑
KIRBY J: Which paragraph are you referring to now?
MR SMITH: This is 108, lines 25 to 36. His Honour is stating there is evidence that all he did was blame alcohol, and that is not right. If one looks at Dr Moyle’s evidence, if he is incorrect about who it was, it is a bit unfair to take that one line at page 75, line 42 as ‑ ‑ ‑
KIRBY J: Lift your voice, please, Mr Smith. I am not hearing you.
MR SMITH: It is unfair to take that one line from page 75, line 42 from Dr Moyle’s evidence and then go to 108 to say he blames alcohol and the context in which that is mentioned is that that would show a worrying lack of insight arguable to remorse and would not bode well for treatment.
GLEESON CJ: The paragraph on page 108 is not a model of syntax but it ends with a speculation, does it not? Do you say that there is a finding of fact on page 108 that this man blames alcohol for his problems?
MR SMITH: If one reads the entire paragraph in context, I would submit that, your Honour. Why else would it be mentioned unless it was of some relevance to the question of remorse or insight?
GLEESON CJ: Well, the judge begins by saying he has tried to find it out and those words “somewhat simplistic” that he uses at the beginning of the paragraph links up directly, does it not, with the question that he asked of Dr Moyle at the bottom of page 75?
MR SMITH: I accept that, but the paragraph comes up after a discussion of risk, particularly when drunk, and it leads into his Honour’s question or view about it being a simplistic response by the appellant and he then seems to say that there is evidence that he blames it all on alcohol and it is a bit unfair to say that when at page 75, line 48, taking that one sentence of Dr Moyle’s evidence to say that is all he does. He does not.
GLEESON CJ: It just occurred to me that a possible reading of that paragraph is that the judge was explaining that at one stage he was considering the question whether there was an easy answer to all this and that was that this man keep off the drink. Then he says, no, it is not as easy as that.
MR SMITH: Well, if that is the case, one wonders why he would have added the last sentence into that paragraph. That is, how could it arguably be relevant to remorse at all if it is not as simplistic as that? But it is a question of context. My submission is that the entirety of that page leads one to the conclusion that that was his view about it. But, anyway, that is my response to that.
In terms of what this Court has done previously, orders setting aside the indefinite sentence…..were made in McGarry. In Lowndes the Court simply dismissed the Crown appeal to the Western Australian court which had imposed an indefinite sentence and remittals occurred in Chester and Thompson, so a variety of approaches have been taken by the Court on the question.
It is interesting to note that out of the cases referred to today, in two cases the order remained, in Moffatt and in Strong. In Strong’s Case, the offender, a 45 year old, had spent almost all of his adult life, apart from two years, in gaol for serious offences. In Moffatt, the offender had previously been sentenced to eight years for aggravated rape, five years for assault with intent to rape and in a period of 12 years and seven months prior to the relevant offences had spent 11 years and 11 months in custody. So it can be seen that a very relevant factor to the imposition of an indefinite sentence appears in the cases to be whether a person had received significant sentences previously. In the instant case, of course, my client has not even had the benefit of a probation order.
The respondent submitted that the Court of Appeal had regard to the principles expressed in this Court. They did have regard to them but they ignored them. The Chief Justice did not even refer to them. Justice Davies referred to the decision of Justice Holmes in terms of whether something was exceptional and Justice Holmes found specifically it was not necessary to find the matter to be exceptional.
GLEESON CJ: No, that is, with respect, not fair to Justice Holmes. She said it is not necessary to state that you find they are exceptional whereas here the evidence speaks for itself. She may be right or she may be wrong
about that. That is something that we will have to decide, but I do not think it is right to say that her Honour dismissed it from the consideration in that way.
MR SMITH: Perhaps I stated it too highly, but I have already referred to Narrier on that point. Can I just mention this, your Honours. If there is a fundamental defect in the process here which goes to the root of the process, that is, an error in the interpretation of 163 and the reasons under 168, or a factual error, then there is no cause for the proviso, as it were, to apply in the imposition of such a sentence, in my submission. In any event, it cannot be said that a court, when giving sufficient regard to the principles, would necessarily have definitely imposed an indefinite sentence here because there were favourable factors on behalf of my client. The criminal history issue has already been discussed. Favourable references were tendered for him. He had a good work history even though he only went to grade 8 at school. Whilst the respondent has mainly referred to the reports from the psychiatrists, in my outline and reply, I have referred also to the cross-examination of Professor Yellowlees and Dr Kingswell, both of whom retreated somewhat from their initial positions because, of course, they had not seen – or at least Dr Kingswell had never seen my client, but Professor Yellowlees had not seen my client for some three years by the time the sentence came about.
All of them thought that the writings of my client suggested an understanding of the impact of offending and that it was possible his approach to the offending behaviour had changed over that three year period and Dr Kingswell could not offer a definitive view as to my client’s long‑term risk when he gave evidence in September 2003. So my submission is that when one bears in mind those factors, one cannot definitely, like in Strong’s Case, come to the conclusion that it was a inevitable an indefinite sentence would have been imposed here.
Finally, it was suggested by the respondent that there does not need to be a finding that the offence has to be exceptional or is exceptional, but in fact, section 163(4)(a) requires that to be found. There was other evidence my client was motivated to complete the programs and it is not correct to say that the evidence was one way on the issue that he was non‑amenable to treatment. There was evidence that the program would put him into a lower risk group and there was evidence that he was remorseful. They are my submissions in reply, your Honour.
GLEESON CJ: Thank you, Mr Smith. We will reserve our decision in this matter and we will adjourn until 10.15 am on Wednesday of next week.
AT 2.51 PM THE MATTER WAS ADJOURNED
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