Chester v The Queen

[1988] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P24 of 1988

B e t w e e n -

JOHN ROBERT CHESTER

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
TOOHEY J

GAUDRON J

Chester

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 24 OCTOBER 1988, AT 2.16 PM

Copyright in the High Court of Australia

PlT3/l/PLC 1 24/10/88

MR H.A. WALLWORK, QC:  May it please Your Honours, I

appear with MR P.G. LASKARIS for the

applicant in this matter. (instructed by

Messrs Frichot & Frichot)

MR K.H. PARKER, Q~, Solicitor-General .for Western Australia: If ~t ·please

· · the Court, I appear with IIl:Y learned friend, MR M.D. WHEELER to :represer

the resporident·. - ( instructed by the Crow:1 Solicitor for Western Austral:

MASON CJ:  Yes, Mr Wallwork?

MR WALLWORK: If Your Honours please, this is an application

for special leave to appeal against sentence

and as part of it there is an application for

the extension of time. The reason, if I may very briefly touch on the extension of time,

that the application was filed a considerable.
time after the sentence~was that the applicant

did not obtain legal aid until very late this year

and immediately that was done this application

was filed.

If I may, though, direct my remarks firstly

to the substance of the matter, he was sentenced
to a term of imprisonment followed by an

indeterminate sentence pursuant to section 662{a)

of our CRIMINAL CODE. I hand up to Your Honours

five copies of the applicant's submissions, together

with five copies of the authorities relevant to

the matter.

. ,,,, /

MASON CJ:  Thank- you, Mr Wallw0rk. Now these volUIIEs are authorities

relevant to the matter, are they?

MR WALLWORK:  Yes, Your Honour. Each case is separated with a pink slip, if Your Honours please. I regret

that they are not numbered, but I do not think

there will be any difficulty in finding them.

MASON CJ:  It will not be necessary to go through these

authorities in detail1

MR WALLWORK:	No, I do not intend to, Your Honours.
MASON CJ:	This is in terrorem, is it?
MR WALLWORK:	No, just in case, I think, sir. Your Honours,

this applicant was sentenced at the end of last

year. He will be 40 on 7 December this year. He

was sentenced for taking $19,000 from a bank

when he was armed with a knife and,. prior to

stealing the money, he had unlawfuliy taken

a car which he also was charged with. The

sentence was - His Honour structured it by saying that

he would have given him five years but, due to the

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Chester

fact that he had already served six months

in custody, he gave him six months on the unlawful use offence, which was the first

one on the indictment, followed by four

years on the robbery with violence indictment,

and then he ordered that he be detained during

the Governor's pleasure.

The sentencing remarks appear at page 18

of the papers, if I may refer Your Honours to

them. Again, I apologize that they are not

numbered down the right hand side of the page,

Half-way down page 18, His Honour the learned

trial judge said:

The circumstances of the crimes as

outlined by the Crown Prosecutor were

removed an ignition key from a Suzuki wagon -

that on the 9th of May you went to

and he then went on to say that he then

went into a:

bank and threatened staff and customers

with a knife. You then demanded money

and were given $19,00p ...... You were

apprehended on the 18th of May and, it

seems, co-operated with the police and

admitted the offences. Of the money

stolen, $11,325 was recovered.

So there is really about ~7000-odd

that he used and he used, as appears from the

papers, some of that money to assist with
bailing out a friend of his with whom he had

served a time of imprisonment,' and with whom

he had been involved in some personal relationship

in the gaol in so far as they helped one another

during the course of their stay.

At page 19 His Honour said, in the second paragraph, that counsel had informed His Honour:

that the dominant motive of your plan

in carrying out this particular

robbery was that a very close friend of yours, one Colin Hannah, had been remanded on a charge of a similar nature

and was unable to raise the necessary bail.

And it was said that he had put $5000 towards the

bail of $10,000 for his friend by giving it to his

father, and his father was going to put in the

other $5000. -

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With respect to the actual indeterminate

sentence which is complained of, that is

dealt with by His Honour on page 21 of the papers.

Two-thirds of the way down that page His Honour

said:

The report from the psychiatrist,

however, makes it quite clear that you

are insightless as to the illogicality

of your actions, and that you will be

likely to remain so so long as you do

not have treatment for the condition

he says from which you suffer. It seems to

me therefore, having regard to the

provisions of section 662A of the CRIMINAL

CODE, that I would be failing in my duty

if I did not, in addition to a finite

term of imprisonment, direct that on the

expiration of that term you be detained

during the Governor's pleasure. If you

remain untreated for the condition of
chronic paranoid schizophrenia, you

constitute a constant threat to the

community.

On page 22, at the top of the page, His Honour, who is chairman of our parole board, incidentally,

said that:

I think it likely that the board would

be looking for some indication that you

had either recovered from the condition

described in the· psychiatric report,

or that you had undertaken treatment
for that condition and were prepared to
continue with whatever medication may be
prescribed to control it before the

decision would be taken to release you

into the community. You will aprpeciate,

therefore, that it will be up to you one

way or the other as to whether or not

given to your release.

favourable consideration is ultimately

So that was the reason for his sentence.

If I may come to Chief Justice Burt's

judgment. His Honour the Chief Justice was

dissenting in this case.

MASON CJ:  We have read the judgments in the Court of

Criminal Appeal.

MR WALLWORK:  Thank you. His Honour came to the view

that the medical reports,which are in the

book of papers, did not justify any suggestion

that the man had schizophrenia. Dr Rollo, as

appears from the papers, recanted on the

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suggestion that the man might have

schizophrenia and came to the conclusion that

really he had sorre.personality disorder and

reconnnended, as is referred to in the
judgments of the Court of Appeal, that this

not be the basis for an indeterminate sentence.

I think the judges, if I may come to the

outline of submissions, they state exactly

what thejudges thought of it. Perhaps if I

can go to 3 of the outline of submissions,

on the top of page 2.

MASON CJ:  Yes. You adopt the reasoning of the

Chief Justice, I suppose?

MR WALLWORK:	Yes, Your Honour.
MASON CJ:	And you submit that that is the approach

that this Court ought to take to the matter?

MR WALLWORK:  Yes, we do, sir. We go further than that,

and we say that Mr Just±ce Wallace and

Mr Justice Pidgeon, the other two learned

judges who comprige the majority in the Court

of Appeal, both gave differing reasons for

upholding the indetermin~te sentence. His Honour

Mr Justice Wallace referred to the provisions of

the section itself, whereas His Honour

Mr Justice Pidgeon referred to the possibility

that the man might reoffend. Those reasons

are set out on page 2, under paragraph 4 of

our outline of submissions.

Mr Justice Pidgeon concluded that t~e applicant was capable of connnitting offences of

a serious and dangerous nature, and he referred

to His Honour the Chief Justice's remarks in

TUNAJ · and said that the sentencing judge:

was ..... acting on the basis that there

was a capacity for improvement.

Now that was Mr Justice Pidgeon's reasoning.	He
considered the antecedents of the applicant indicated a danger to the public and he said:

The applicant's statements on their own suggest he is of a state of mind where

he is capable ot connnitting further

offences and the reports before this

Court indicate a mental condition that might cause further offending but might

be moderated with time.

It is submitted, sir, that there are no authorities

in Western Australia which this Court of Criminal

Appeal in this State are applying when dealing with

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the provisions of this section. The three

learned judges in our Court of Appeal all
applied different reasoning to the application,

in this particular case,of section 662(a).

Your Honours, of course, in VEEN's case

-_ - (No 2), which you have just decided and

which is referred to on the list of authorities,

set out very clearly when an indeterminate

sentence may be applied and you have adopted

Mr Justice Mason's, as he then was, dicta

in the earlier case of VEEN.

If I may refer to the case of HARRATT in

Queensland, which is_ No 6 on our list of

authorities. That case involved a manslaughter

sentence where a young woman had shot somebody

who had asked her, according to her, to shoot

him. Chief Justice Wanstall, in his judgment,	at page 384, which is the last page phot68raphed
of this judgment in the book, dealt with this question of indeterminate sentences. And maybe
Your Honours have not considered that particular
decision before. He there said:

The propriety of the imposition of

an indeterminan~ · sentence has recently

been closely examined by the High Court

of Australia in the case of VEEN.

Mr Justice Mason said:

"The protection of the con:nnunity from

violent crime, it has always been

recognised, is a very important factor

to be taken into account in sentencing.

It would be surprising if it were

otherwise. The court must, in sentencing

a person who has been convicted of a very

serious offence invplving violence, if his

record and the expert evidence plainly

demonstrate that there is a real likelihood

of his con:nnitting that kind of offence again

if he is restored to liberty, ensure by the
order which it makes that he will not be

released whilst that likelihood continues.

Then he quoted the United Kingdom dicta from

HOBSON's case where they again stressed, similar

to Your Honours have in this Court, that a person

is not to be detained indefinitely unless there

is a very serious question of public safety involved,

if I can say in a few words what it is my understanding

of the two VEEN cases.

But if I may refer to what four of Your Honours,

being the Chief Justice and Mr Justice Brennan,

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Mr Justice Dawson, Mr Justice Toohey said at

page 227 of VEEN (No 2):

The principle of proportionality is

now firmly established in this country.

It was the unanimous view of the Court
in VEEN (No 1) that a sentence should

not be increased beyond what is
proportionate to the crime in order merely
to extend the period of protection of

society from the risk of recidivism.

Your Honours, the other authorities on

the appellant's list of authorities, being 8 and 9,
deal with the grant of special leave in cases of

sentencing and it is submitted that where there

is what you have described as a gross violation

of sentencing principles, you will grant special

leave if you think it ought to be.

MASON CJ:  Yes, and we are here concerned with the interpretation

of a provision in the Code.

MR WALLWORK:  Yes, sir. If I may address that aspect of

it, His Honour the Chief Justice in TUNAJ set

out what he considered to be how the Code

ought to be interpreted and the reason we would

ask for special leave in this case is because

the other judges apparently do not agree on the circumstances under which such an order

is to be made. In this case it is demonstrated

by three different approaches, and, of course,

the original one, His Honour Mr Justice Smith,

who sentenced the applicant~pe said why he imposed

the order. So there are really four variations

of the reason for sentence, in our submission,

and the only place the applicant can go is to

this Court for a revision /or a reconsideration

of the order under section 662(a). .

TOOHEY J:  Mr Wallwork, what do you say is the policy

underlying section 662(a)?

MR WALLWORK:	That where a person is considered a very serious danger to the cormnunity - I think I
could not improve, Your Honours, on which
Chief Justice Burt set out in TUNAJ's case.
He said at page 51 of the book:

Section 662 of the Code must now be

construed in the overall legislative

setting which includes and which for

present purposes is, I think, dominated

by the Offenders PROBATION and PAROLE ACT.

In that setting the cormnand of the section that in making an order under section 662

of the Code the court should have regard to

the "antecedents, character, age, health

and mental condition of the person convicted,

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the nature of the offence or any

special circumstances of the case" cannot

mean, if it ever did mean, that a: court can

make an order under that section if, having

had regard to such matters it considers that

such an order would, in some general sense

which does not include the safety of the
public, advance the "welfare" of the

convicted person. In my opinion, the

enactment of the PROBATION AND PAROLE ACT

now requires one to say that an order

should be made under section 662 only in

very exceptional circumstances and those

circumstances must indicate and firmly

indicate that the convicted person has

shown himself to constitute a danger to

the public. And the section of recent

years has always been understood in that

sense.

(Continued on page 9)

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MR WALLWORK (cont;_nuing): That is what His Honour the

Chief Justice said in TUNAJ's case and we would
adopt that view of the application of the section.

MASON CJ:  Yes. Mr Wallwork, I should ask you, assuming

-that you are successful in obtaining special leave

and the Court is minded to allow the appeal, what

order should the Court make? I have in mind, of

course, what the Chief Justice said at the end of

his judgment.

MR WALLWORK:  Yes. I just forget exactly what he did say.

I think he said -

MASON CJ: Well, he was minded to increase the determinate

sentence.

MR WALLWORK:  I am not sure he said how much he was going to - - -

MASON CJ: Well, I think he was minded to increase it by a

year.

MR WALLWORK: 

Yes.

MASON CJ: 

Yes, increase really the existing term of five

years up to six years and then a non-parole period
of three years.

MR WALLWORK:  Yes. Your Honours, we have taken instructions.

We advised the applicant of this before this

application was mounted and he is well appreciative

that that would be the result; that he would get

an increased sentence. But he, without any reference,

of course, to Mr Justice Jacob's judgment in VEEN,

is very, very upset, as appears from his addressing

to the judge at the actual sentencing time, of not

knowing when he is going to get out.

MASON CJ: Yes, yes, I appreciate that.

MR WALLWORK:  And he does appreciate that it will be increased

if Your Honours were prepared to vary it.

MASON CJ:  Yes. Now, of course, it may be that this Court

would be disinclined, in any event, to consider the

question of any variation in the sentence, the
determinate sentence itself. It is not our practice,
really, to deal with matters of that kind, and then a

question might arise as to whether the matter would

go back to the trial judge or to the Court of Criminal

Appeal.

MR WALLWORK: Well, it should go back, with respect, to the

Court of Criminal Appeal, rather than the trial judge because the trial judge has already indicated that he

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takes a certain view of this man's propensities,

for want of a better word, and I would, with respect,

think that if Your Honours took that view, if you

were not going to set a term yourself, you perhaps

could send it back to the Court of Criminal Appeal

in which there would be three judges who are well

- ..aware of the current law who would apply a sentence and he would get what he would, I am sure, be happy

with.

TOOHEY J: Well, it cannot go back to the court as then

constituted.

MR WALLWORK:  No, it would not matter, sir, in my respectful

submission, if you did not deal with it, but perhaps

it should not go back to the trial judge if he has

taken the view that he has already. I just offer

that; if it was sent back to the Court of Criminal

Appeal of Western Australia, well, it could be dealt

with. But preferably, in our submission, we would

ask Your Honours to fix a sentence. It has been

indicated what the likely sentence would be and he

is well aware of what the likely sentence would be ,

but it does remove this uncertainty.

I just, finally, would like to say, before sitting

down, that it amounts to the - as is said in

paragraph 5 - putting the liberty of the subject
in the hands of the parole board if the courts will
not put finite sentences on people other than the

very, very serious cases and, because of that, we

submit that it is an important matter of principle

and it should not be done, and it is available to be

done any day in Western Australia under this particular

Act unless this Court makes it clear that it should

not be done other than perhaps along the lines that
the former Chief Justice has suggested in TUNAJ's

case, which he set out in his dissenting judgment.

I do not think I can carry the matter any further

unless Your Honours have any questions about it.

MASON CJ: Yes, thank you, Mr Wallwork. Mr Solicitor?
MR PARKER:	If it please Your Honours, I would hand up an

outline of our submissions.

MASON CJ: Thank you. Yes, Mr Solicitor.

MR PARKER:  If it please Your Honours, it is first submitted

that the law in this State, in dealing with section 662(a)

of the CRIMINAL CODE is settled. I recognize here

that I am in direct opposition to submissions my

learned friend has just put, but may I put it this

way, if it please Your Honours? The decision in the

case of TUNAJ V REG, (1984) WAR 48, is not just a

decision of the former Chief Justice; it is a decision

of the Court of Criminal Appeal. Mr Justice Pidgeon

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and Mr Justice Rowland sat with and concurred in

the decision of the Chief Justice. As appears at

page 51, it was the view of the former Chief Justice

that the section had been understood in this State

in recent years, to only be appropriately used where:

the convicted person has shown himself to

constitute a danger to the public.

And His Honour concluded at line 50 of page 51:

And the section of recent years has always

been understood in that sense and applied

only in such cases.

His Honour then referred, I think, to six cases,

spanning the previous 15 years, which indicates the

relative rareness of the use of this provision,

in which the matter had been considered, and since

then I can tell Your Honours, in the four years

since 1984, there have been five other occasions.and,
in each of those cases there has never been any

question but that the words of the former

Chief Justice at page 51 governed, for all practical

purposes, the operation of section 662(a) today.

BRENNAN J:  The difficulty with those words, Mr Solicitor, is

that it does not tell you very much, does it, to say

that somebody has shown himself to constitute a

danger to the public? The problem is the level of

danger.

MR PARKER: That is a consideration, if it please Your Honours.

I believe each of the cases demonstrate - and this

present one is of all of them the most contentious

in this respect. The issue is whether there is a

danger sufficiently serious to make appropriate the

use of the section. Their Honours constituting the

Court of Criminal Appeal in this case, in our

respectful submission, recognized and applied the

TUNAJ decision. There was no question, no contest,

in argument before the Court of Criminal Appeal that

those principles should be applied.

The Chief Justice expressly referred to them.

Mr Justice Pidgeon expressly referred and accepted

those principles, at pages 64 and 65 of the papers.

His Honour Mr Justice Wallace implicitly did so at page 51 because His Honour went searching expressly

for the danger to the public. That also, of course,

is the basis upon which the learned sentencing

judged acted. So our first submission, with respect,

is that the decision in TUNAJ is unquestioned in

this State, as the one appropriate to apply.

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BRENNAN J:  Does it mean what the Chief Justice said it meant

at page 38?

MR PARKER:  I am not precisely sure what part of page 38 Your Honour is pointing to.

BRENNAN-J~ Well, I was speaking of the whole. In the first

·part of page 38, His Honour saysthat TUNAJ's case is

not satisfied merely because it can be predicated of an offender that he will probably offend again.

MR PARKER:  Yes, it certainly means that.

BRENNAN J: And then, in the latter part, citing Thomas's

Principles of Sentencing~ he describes something of

the degree of danger that must be apprehended.

MR PARKER:  I am not in a position, if it please Your Honour,

to say that the citation from Thomas has received

acceptance by any other judge in this Court and I

would respectfully question that it is altogether

appropriate. That might appropriately lead me to

my next submission which is No 3 on our sunnnary,

and that is to point out to Your Honours the

distinction between the position in VEEN 1 - both

of the VEEN cases - and the position here. I believe

the connnents quoted or cited from Thomas appear more

related to the circumstances equivalent to those

being considered in VEEN.

VEEN, of course,was dealing with the connnon law

sentencing principles, the core of which is

proportionality of the punishment to the offence.

The protection of the public has a place only so far

as it can be acconnnodated within a proportionate
sentence. In that legal setting, each of the VEEN
cases are considering whether,~ life sentence is
appropriate because that was relevantly the only

indeterminate sentence available to the. sentencing

court in New South Wales. That was a life sentence

against a statutory setting where release from a

life sentence was within ministerial discretion;

a discretion in which public policy and political

considerations could properly be weighed by the

minister and the decision of the minister was not

judlcially reviewable in the sense of determining

whether or not he ought to order release and,

against a statutory setting also, in which a prisoner

sentenced to a fixed term in New South Wales was able

to be released at any time on licence.

The issue could, in a sense, be stated there in

the connnon settings of VEEN considering whether or
not life sentences were appropriate. The issue,
perhaps, is when, with a view to protection of the
public, is a court justified in imposingthe most

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serious punishment open, which is life imprisonment,

punishment which commits a young life, in the case

of VEEN, and still a young life in the case of the
second, to prison for life unless and until the

executive, in its unfettered discretion, chooses to

release him. We come, in this State, under the

~Code, to consider a fundamentally different statutory situation.

(Continued on page 14)

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MR PARKER (continuing): Section 662, as I understand

it, uniquely in Australia, is an express statutory

provision enabling a court to order indefinite detention of an offender, having regard to the

general criteria which include the mental condition

of the offender set out in the section. It can

be done either without imposing any specific

punishment at all, section 662(b), or on completion

of a finite term of imprisonment imposed for

the particular offence, section 662(a). It is

(a) that was used on this occasion.

That is exactly and precisely the sort

of statutory provision which was recognized not

to be available in New South Wales when the matter

was considered in each of the VEEN cases. The

criteria set out in section 662 are, of course,

in somewhat familiar terms. They reflect the

criteria relevant to ordinary sentencing principles,

except, perhaps, that they do specifically mention

what is not usually specifically mentioned but

implicitly included, the question of the mental

condition of the person to be sentenced.

Section 662 is quite distinct from and serving

a completely different purpose from the habitual

offender provisions which are section 661 of

the Code and, of course, are quite distinct from

life imprisonment, a punishment reserved for

the most serious types of offence. The purpose

of section 662 has always been recognized in Western Australia in the SO-odd years of its existence to have been essentially twofold.

Originally the first of its uses was to enable

reformation of the offender and it was structured

along with an indeterminate sentences board and

a structure that was providing what, for that

time, was an enlightened scheme, it was then
thought in the state of criminological understanding,

of an indeterminate reformatory style of imprisonment

The second purpose recognized from the beginning

has been the protection of the public. As discussed

in TUNAJ and, in our submission, unquestioned
by judges in this State, the reformation purpose

has been overtaken by the OFFENDERS' PROBATION

AND PAROLE legislation with which this provision

is necessarily, as a matter of law, read and,

as I will show to Your Honours in a moment, the

two are deliberately legislatively linked.

So it remains, today, in our submission,

that the primary purpose for which section 662

remains in use and remains in the Code is the

protection of the public and Your Honours will

notice that as a matter of statutory form it

is not conditioned to any particular type or

seriousness of offence. It is at large and

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it may be used under 662(b) in circumstances

where the offence itself does not warrant the

imposition of any finite punishment at all.

I should make it clear that the section

does not remain in the Code by oversight. It

---: - is certainly not a relic. There have been two

reviews of criminal punishment and one review

of the whole of the Code, including its sentencing

provisions, all widely publicized public reviews

in the last 15 years in this State. Each one

of then has firmly endorsed the continued value

of the section for the protection of the public.

So it has remained in the Code as a matter of

deliberate legislative decision and, as

Your Honours will see, only within the last year

the legislature has deliberately restructured

the OFFENDERS' PROBATION AND PAROLE provisions

that directly relate to and enable the working

of this provision to make it more satisfactory

in some aspects of its operation.

So it is not by legislative oversight, it is

by deliberate legislative choice that the provision

remains and it remains in stead~ although I must

say not frequent judicial use as a provision.

TOOHEY J: Mr Solicitor, when the section was first enacted,

what was the counterpart of the OFFENDERS'

PROBATION AND PAROLE ACT?

MR PARKER:  Th~re was not an equivalent, Your Honour.

The OFFENDERS' PROBATION AND PAROLE was first

introduced in the 60s, in this State.

TOOHEY J:  But I-used the term "counterpart" in case there

had been anything earlier.

MR PARKER:  The provisions under the old PRISONS ACT

establishing the indeterminate sentences board

and the reformatory prison concept, they were

chapters of the PRISONS ACT. I believe,

Your Honour, they are the legislative framework

that would be the nearest to the parole legislation

and the scheme basically was that a wide range

of prisoners, both by use of section 662 and

by other means, became subject to an indeterminate

reformatory sentence and placed in a special

prison regime away from other prisoners undergoing

what was thought to be reformatory treatment

and subject to review by the board with a view

to release when it was thought that the ·processes

of reformation had been sufficiently achieved.

BRENNAN J: And you say that it is no longer designed to

have a reformatory effect?

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MR PARKER: 

It has certainly in the last 20 or 25 years

not been used for that purpose and the decision
in TUNAJ, if there had been any question about

it, has made it clear since then that in the

view of the Court of Criminal Appeal that is

no longer any relevant use of the provision.

BRENNAN J: 

And what are the uses which have been predicated

of the section in these sundry reviews that have

taken place?

MR PARKER: Protection of the public.

BRENNAN J:	Lock somebody up to protect the public?
MR PARKER:	Yes.

TOOHEY J: It is rather hard to accommodate within that

idea some of the criteria in section 662, is

it not, criteria such as age, health? How would

they find their way into the sort of notion that

you are now expressing?

MR PARKER:  I think, if Your Honours consider each of those

matters, they really summarize the whole of the

sentencing criteria and, really, what the legislature

has done is empowered the courts to review all

of the circumstances of the case and to see whether

having regard to all of those the court is of

the view that an indeterminate sentence is appropriate.

So that the matter has been left very largely

to the decision of the courts as to how section 662
should be applied and it is in that framework

that the decision in TUNAJ, as a convenient

authoritative recent statement, has indicated

that in today's circumstances the only usage

appropriate is the danger to the public.

GAUDRON J: It goes somewhat further, does it not,

Mr Solicitor, it specifies that from which the

public is to be protected, the commission of

violent crimes against the person in TUNAJ, does

it not?

MR PARKER:  I do not believe that is to be gained from

that, if it please Your Honour.

GAUDRON J: Perhaps that is what Chief Justice Burt says

in the present case?

MR PARKER:	I think it is fair to say that in the case of TUNAJ one had an offence of violence against
an individual. Nothing in the authoritative
reasons indicates that it is to be limited to
that as a matter of law.  I do not, for example,
believe that it is appropriate to say from the decision in TUNAJ that the circumstances of the present case are outside rhe object of protection
oi Lhe public but I have not yet, of course - - -

PlTS/3/ND	16	24/10/88
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GAUDRON J:  What is the public to be protected from?

MR PARKER: Serious crime in the majority of circumstances.

I can indicate that its usage has been, as I

am aware, in offences of a sexual violent nature,

homicides and robberies. I am not aware of any

--other usage of it in the last 20 to 25 years

and that may indicate that there is substance in Your Honour's thinking. I have go to say,

though, that I do not believe I have seen it

so limited in any decision that has falled from

the Court of Criminal Appeal except, perhaps,

what His Honour the former Chief Justice said

in his reasoning in this present case.

BRENNAN J: Mr Solicitor, once one leaves behind, as I

am sure one must, the notion that the power to lock somebody up cannot be exercised to reform

that person, what are the judicially manageable

criteria which can be posited to guide this

extraordinary power?

MR PARKER:  Can I say that it may, to Your Honours, be

extraordinary. It is not to those used to its

operation seen so extraordinarily. Can I respectfully

submit that there are clearly cases - if I can

take obvious ones and will return to this
particular case later. Obvious ones: a person,
for example, who has offended repeatedly with

extremely violent sexual conduct, who has some

disturbance of ordinary mental functioning,
significantly short of insanity which, nevertheless,

produces the effect that that person has effectively little or no control of sexual urges. That has been seen to be the sort of conduct that would

justify the use of this provision.

Another example is in the case of repeated

homicide or attempted homicide by somebody who

because of a disposition to an extremely, what

we might call, short fuse or short. temper, such

that under the ordinary vicissitudes of every-

day conduct that person completely loses control

and reason and attacks viciously without any

sense of self-restraint and has killed or come
close to killing people on more than one occasion

in those circumstances.

In neither of these circumstances has it

been necessary, of course, to go to the lengths

as would be gone in some of the other jurisdictions
of Australia of seeing that a life sentence was

necessary. A shorter finite term, plus an

indetermine term, has been able to be imposed.

And, in my respectful submission, each of those

reveals examples of a reasonable and sound use

of a power such as this which both balances in

PlT5/4/ND	17	24/10/88
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a much more moderate way, the strict component

of punishment and leaves open then a flexible review and continuous review of the personal,

personality and mental development and stability

of the offender to see whether that person's

release under conditions as to treatment

-.- supervision and the like, may be affected with

a manageable and a degree of risk which the

community can reasonably be expected to accept.

S o , among o the r t h i n g s , t a k i n g extreme c a s e s ,

it enables the court to stop short of going to

a life imprisonment sentence and leave the future

development of this person under the review
of the parole board with a view to enabling that
person's release at the earliest circumstances
thought reasonably safe to the community by the

board.

(Continued on page 1~)

PlTS/5/ND	18	24/10/88
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MR PARKER (continuing):  Now, I made that easier for myself

as Your Honour will recognize because I have set

it as against life sentence and my submissions

will not confine its use to that function.

I respectfully submit that in just giving that

_example Your Honours may start to see how this

provision can be of considerable benefit not only
to the community which it is designed revelantly
to protect but also to the individual because it
places the prospects of that person's release

and preparation for release in the hands of a

legislative regime far more favourable to the

offender than had he been subject to a life sentence

order.

The parole legislation in this State has

just been reviewed.	The amendments came into force
in June of this year.	The references I will give

Your Honours are different from those that are to be found in the papers because I will give

Your Honours the new references. But the scheme

revelantly is.now, firstly, that this offender

will serve three years of the four and a half

years finite term imposed. That is because there

is a statutory one-third remission of any finite

term. Secondly, that the moment that three-year

period is concluded the offender will then be

immediately subject to the capacity of the parole

board to order release at any time on whatever

the board considers appropriate.

In that role the board acts entirely independently

of the executive. There is no role in respect

of this offender, either under the provisions

as they were or as they are now for any ministerial
or executive intervention in a decision as to

release. The board is required to review the

prisoner at least once a year throughout the term

of any detention under the terms of section 662(a).

Apart from generally unfettered discretion as to

the terms of release parole may be ordered as a

condition of release but the limit of that in years is two years. So he may be released on parole for a period of up to two years.

Your Honours will find in the new Act the provisions are sections 40C(l)(b) and

subsections (2)(a) and (4).	The review periods
are set out in section 34.	The table that concludes

that section, and relevantly it is item 9 in that
table:

A prisoner detained under section 662(a) must be subject of a report - - -

PlT6/l/MB	19	24/10/88
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MASON CJ:  Mr Solicitor, are you going to provide us

with copies of this legislation?

MR PARKER: 

Yes, I can, if it please Your Honour. I can go as far as four,_ I am sorry.

MR WALLWORK: 

I can put in the fifth one.

MASON CJ; 

Thank you, Mr Wallwork.

MR PARKER: 

Your Honours will see as you come to these

provisions that they are provisions expressly
dealing with those detained under section 662(a) and

this sentence was imposed before the commencement

date. If Your Honours come to be concerned about
that the commencement date is the date of the

new provisions and is 15 June 1988, so that this
is a sentence imposed before the commencement

date, or this is an order of detention made before

the commencement date.  In practice the preparation

of the parole board will commence significantly
before the completion of the finite period of
three years and it is normal for parole officers
to report to the board before the expiration of

that finite period in case it is a case where it
is appropriate to consider release at or about

the commencement of the finite period. And, of course, programmes of psychiatric treatment and psychological treatment are available during the

service of the ordinary sentence under the regime of the prison's authorities and the parole board,

quite regularly, will impose conditions about psychiatric review and treatment as part of a

condition of release.

BRENNAN J: 

Are there any provisions of the MENTAL HEALTH ACT which deal with the detention of people who might

present a danger to the public?

MR PARKER:  No, sir. I can say for practical purposes

that is the answer. There are some scant

incomplete provisions but the provisions really

have no practical operation. Mental treatment -	this is for those who are sane - mental treatment
which is often called for,of course; mental
assistance, psychiatric or psychological, is
provided as part of the prison regime and two
doctors who feature in this case are among those who are part of the - those responsible for the provision of psychiatric service to the ordinary prison system. Then, in addition, there are
people in private practice regularly used as
referral points by the parole service.

BRENNAN J:	I was thinking of something completely outside
the CRIMINAL CODE and the OFFENDERS' PROBATION AND legislation of a State, is there any provision

PlT6/2/MB	20	24/10/88
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dealing with restraint of those who might be a

danger to other persons and a review of any

restraint by an independent board?

MR PARKER:	No.
BRENNAN J:	Nothing of that sort?
MR PARKER:	There is not, no.
BRENNAN J:	So that if there is somebody who is a danger

to the public the only way in

which that danger is forestalled is by locking

him up under 662(a)?

MR PARKER: Well, 662(a) is only - - -

BRENNAN J:	I know it is only available when -
MR PARKER:	Where there has been offence, yes.  Now, there

are forms of voluntary referral to a mental

institution and things of that nature and

frankly, sir, I do not want to give Your Honour

too complete an assurance because I have not

looked at the sections recently and certainly

not -

MASON CJ:  But are there not statutory provisions which

enable a court to make an order in relation to

people who suffer from mental infirmity and

are incapable and may constitute as a consequence

a real danger to the public?

MR PARKER:  Yes, there are.

MASON CJ:  So that there is that form of dealing with

people who constitute a danger to the public even

if they have not committed a criminal offence?

MR PARKER~ Yes. I was understanding the question as

related to the dealing of those who had been

involved in criminal conduct.

BRENNAN J:  No, my real question is designed to elicit

whether or not the provisions of the kind to

which the Chief Justice has just referred are
available in the case of somebody who might be
thought to be a candidate for 662(a), with all

the safeguards and protections that are usually

attached to legislation of that kind?

MR PARKER:  I can indicate to Your Honours my understanding:

I will also indicate that I have some reservations,

because I have not looked at it recently, about

the completeness of my understanding and I will

make sure that Your Honours receive in writing

a statement of the position. But there are

PlT6/3/MB	21	24/10/88
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certainly provisions for voluntary commitment

and there are provisions enabling commitment

of those who, in the opinion, I believe, of two

psychiatrists, are thought to be insane or

incapable of managing their affairs. Now, to

-~ay that somebody who has a personality disorder

· would come within those provisions - I be 1 ieve that

is not the situation, and that is the difficulty

I have there in answering Your Honour. I do not

believe that those provisions would, on the view

taken by Dr Rollo in this case,necessarily be

available. They may be, I am not sure.

MASON CJ: 

Well, certainly, you had better identify those

provisions for us and provide us with copies of
the appropriate legislative provisions?

MR PARKER: 

I will do that, if it please Your Honour.

MASON CJ: 

Yes, you would.

MR PARKER:  May I move on. In so doing could I emphasize

how this section, both in its subsections (a) and (b),

is dramatically different from the ordinary common

law position and the ordinary common law principles

and the more usual statutory punishment provisions

with which Your Honours are familiar and, certainly,

completely different from the sort of provision

that was being considered in the circumstances of
either of the VEEN cases. I would underline the
existence of section 662(b) which authorizes the

imposition of an indeterminate order even though

no punishment is imposed in respect of the

criminal conduct that brought the person before

the court to demonstrate just how far from the

sort of statutory punishment framework and the

ordinary common law principles these provisions

are.

It is accepted in the use of secton 662

in this State, or 662(a), that when it is used

the sentencing judge should fix a finite term

which is at the lowest end of the discretionary

range that His Honour sees to be appropriate

to the offence. This is to enable the possibility
of supervised release to be available at the
earliest opportunity and to enable the supervision

of the parole board in the planning and preparation

for release to occur at the earliest time. But

it is different, of course, from parole in that

at least theoretically there may be no end to this detention, whereas under a parole scheme

there is an end to the point. Now that is the

fundamental difference between the two and it is

a very important and significant one and it is

why, of course, the provisions are seen to have

PlT6/4/MB	22	24/10/88
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such a confined use in this State. Now, can

I point out to Your Honours what it was in this case that attracted to His Honour the sentencing judge, the view that this offender ought to have

'-"peen subject to an order under this provision.

If Your Honours will realize that before the

sentencing judge there was a diagnosis of chronic

paranoid schizophrenia. The applicant

nevertheless did not accept that he was other than

sane and that appears at pages 17 line 29, 21 lines
13 to 15 and 21 line 40, in his exchanges with

the judge.

It also appears from pages 50 onwards of the

books in the discussion and submissions that flowed

between the applicant and His Honour, that it was

very clearly the case that the applicant had no

insight into the abnormality of his thought

processes, what is often referred to in the

papers as the illogicity of his thinking.

(Continued on page 24)

PlT6/5/MB	24/10/88
Chester
MR PARKER (continuing):	Now, those circumstances remain

true today, whatever be the precise medical

condition fiom which he suffers, whether it be

it was a mixed personality disorder with

paranoid schizophrenia, as was the view of whether

persisting attitudes which may gradually moderate

which was, I think, the final view of Dr Rollo.

The difference at heart between those two medical

views appears to be whether or not the beliefs of
the applicant are delusional in foundation, or

whether they are merely a distorted product of the

applicant's sense of reality.

Relevantly the distinguishing consequence

is that there is a greater capacity for improvement

in the case of the personality disorder, so that if

Dr Rollo is correct, the applicant's prospects for the future, with some appropriate treatment, are

much more favourable than if Dr Booth's view is

correct. Whatever be the psychiatric foundation,

the learned sentencing judge was faced with an offender

who had twice committed very serious offences.

Very quickly, the first of these, described in the II d h. II •

paper as t e woo c 1p case, or circumstance, h

occurred when the applicant, concerned at the

establishment of a wood chip export industry in

this State set time bomb devices on the loading

equipment at the Bunbury wharves which were used

to load the wood chip equipment.

The worst of these were two cartons of

gelignite which, in fact, detonated and caused a

very major disturbance and concern throughout the
township of Bunbury and effectively destroyed the

loading gantry used to load the product on to

the ships. Two other such devices being home-made,

in fact, did. not detonate, but they were set on other

parts of the wood chip loading facility. At the time

of that offence the applicant was armed with a rifle

and took away a night-watchman - he was in company

with another person as well - to ensure the

night-watchman was not injured by the explosion, but

in fact took him away at rifle point and destroyed

the installation.

Your Honours will see on page 15 of the

papers the even before, some 12 years later,

His Honour the sentencing judge the prisoner discussed

that with the sentencing judge, below half-way down

the page, he said:

a few years ago I bombed the woodchip.

Did you know that, I bombed the woodchip

down south?

SMITHJ:  Yes, I know all about that.

PlT7/l/HS	24	24/10/88
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PRISONER:  Well, see, the way I saw that

then was that you had a machine, a sort

of - - which was killing a lot of nature

and things that God's put here, you know,

because I have always been guided in

Jesus Christ and I believe that he created

the earth and there's a lot of people

seem to me are destroying it, and I think

there's a lot of things going wrong

through high technology and computers

and robots and things like this.

Revealed in there, and confirmed in the passage

that I will turn to in a moment, the applicant was

indicating that he acted as he understood it, at

the guidance of Jesus Christ in the bombing and

destruction of the wood chip installation. Now,

that is revealed, perhaps more emphatically, at

page 17, where discussing this present case which

is described, I might say, as a very polite bank

robbery. It was a bank robbery because it happened

that no member of the public and no bank officer

took any steps to interfere with or attempt to

restrain or attempt to prevent the applicant.	He
went completely masked with a knife and held the

people in the bank - there were a few of them - at

knife point and made off with some $19,000. It is

true that perhaps because of their restraint that

it was a very polite bank robbery.

What lead him there and what he was doing is

revealed on page 17 in his eyes. Firstly, he had a

friend, a friend who had been charged with armed

robbery, a bank robbing, whom he regarded as

basically a righteous guy and, as he says on line 4

and following on page 17:

Okay, he stole money from a bank.

You see the way I see it, your Honour,

the banks themselves, they are ripping

and stuff ..... They do a lot of harm

off either young people through advertising

themselves

and so on. Then he continues:

Just to cut the whole thing short,

your Honour,	you see I robbed this bank
to get my friend out of gaol.	I guess

you could say that I sort of declared a sort

of Holy War because I was praying to God
and that then I got angry towards the

system and I felt I was getting clear thought from the Lord you know. So I guess you could say I declared a sort

of Holy War against the system as it

was and I took it upon myself to just go

to that bank and just take that money and

PlT7/2/HS	25	24/10/88
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to go and get my friend out -

et cetera, concluding in the last two lines of

that paragraph:

I see myself as totally sane, you know.

What is revealed there, in our respectful submission,

and which provided a very adequate basis for

His Honour to reach the view he did was that this

applicant thought that he was acting under the direct

command of God in his activity of robbing this bank.

He prayed, he got angry with the system, he got a clear thought from the Lord and he went and declared

a holy war on this bank that was, as he just

indicated, ripping off others, and so on.

MASON CJ:  What he says speaks for itself. There

is no need to labour it, Mr Solicitor.

MR PARKER:  The effect of that, in our respectful submission,

has eloquently and perhaps more eloquently than
anything else in the reports, et cetera, provided
a proper basis, in our submission, for His Honour to
take the view that this applicant was capable of

committing very serious offences that were, of their

nature, life threatening, both the bombing and this

armed robbery of the bank, in circumstances

in which he, because of his mental processes,

whether they were due to schizophrenia or what,

felt that he was fulfilling the directions

of the Lord. That went further, of course. It

revealed why throughout there is no sense of remorse

on the part of the applicant because - - -

GAUDRON J:  All of that happened, Mr Solicitor, did it not,

before - no, I am sorry, it did not. It happened

after the psychiatrist's report?

MR PARKER:	Yes.
GAUDRON J:	But the sentencing judge purported to act on

the psychiatrist's report?

MR PARKER:  And on his total view of the case, if it

please Your Honour. The point is that this revealed

to His Honour in a most graphic form,straight from

the mouth of the applicant, exactly why he felt he

had done what he did, why he felt that what he did

was right, why he felt no remorse and how it is that

in future this man could well feel he had some other

command or direct thought from the Lord and could
well be led to conduct equally serious in that
understanding and impression. In our submission,
as the majority of the Court of Criminal Appeal

concluded, it does not greatly matter whether

Dr Rollo's view is to be preferred to Dr Booth's

or not. Both of them accept this as the sort of

PlT7/3/HS	26	24/10/88
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conduct of which this person conducted himself

and this person's condition was portrayed most

graphically before His Honour the sentencing judge

and His Honour had an opportunity of assessing

how deeply convinced the applicant was about

the rightness of what he was saying about his
conduct in these submissions that the applicant put

directly to His Honour the sentencing judge.

In our respectful submission, what, as it

were, came from the applicant himself, perhaps above

all else, but confirmed on either of the psychiatric

views before the Court, revealed that this

applicant, convinced of the right of what he

is doing, may well at any time offend in a

most serious life-threatening way and it is against

that setting and that background that His Honour

the sentencing judge thought it appropriate that
the community should be protected. The majority

of the Court of Criminal Appeal felt there was

no basis for disturbing that view because of the

difference in the - just because of the difference

of opinion of the psychiatrists, and we would

respectfully submit that it really matters

not which of the psychiatric views in the end is

correct, althought it is to be hoped that it is that

of Dr Rollo, because that is quite a hopeful view
for the future, but that both of them merely

indicate alternative hypotheses as to why the

applicant thought as he did and found himself

acting as he did in this serious manner on each

occasion because he felt under his mental processes

that he was acting at the direction of the

Lord in doing what he did.

In our respectful submission, the use

of section 662 may be more readily seen as

appropriate in some more dramatic cases, but that

really this case boils down to an assessment of

the circumstances against pretty clear principles

sufficiently a threat to the community to warrant	to see whether these particular circumstances are
the use of this detention provision. In our view,
against the background of the settled principle that has not previously given any difficulty it is not
really a matter warranting special leave to
re~nalyse the circumstances of this case to see
whether, in Your Honours' views, there was a
sufficiently serious threat, and for the reasons that we have submitted we would indicate that it
was open to His Honour the sentencing judge to take the view he did on the material before him, especially the testimony and the condition of the
applicant himself to the judge and what it revealed
and that the divergence in medical opinion that
followed does not displace the force and effect of that and that there was here a risk to the public
sufficiently serious, of serious criminal conduct,

PlT7/4/HS	27	24/10/88
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by somebody with no appreciation whatever of the

wrongness of his conduct or its inappropriateness

to warrant the use of this special and, I think,

unique statutory provision.	May it please
Your Honours.

MASON"""'CJ:  Mr Solicitor, if it should transpire that we do

not accept your submissions and we conclude that it

was not a case for the imposition of an

indeterminate sentence, what should the Court

then do with the case?

T7 MR PARKER:

In the absence of taking a long time outlining

the new scheme of parole, I think it would be far

more practical for Your Honours to remit. As the

Court of Criminal Appeal cannot be reconstituted
as it was it would appear inevitable that the

remission most practically is to the learned trial

judge. We would have thought that His Honour

(a) has formed a view which, if directed by

this Court to be inappropriate would leave him then

in a position of applying ordinary principles in

a way that really does not give rise to the

prospect of any difficulty on the part of

His Honour in sentencing apprq:>riately especially

as he has already fairly well indicat'ed the

general range and tenor of his thinking.	But
I would indicate that under the new parole scheme it is now entirely in the unfettered

discretion of the sentencing court open to either

order eligibility for parole or to make no order

about parole at all.	It is entirely a sentencing
option now.

If eligibility for parole is specifically

ordered, then no minimum term is fixed now and a

statutory minimum term of one third operates for

sentences of between 18 months and six years and

above six years the scheme is tailored so that

the maximum period between the release date

and the completion of the time on parole which is

two.rthirds of the finite sentence, is two years,

so that for a person sentenced to a term of

12 years release on parole is at a period of

two-thirds less two years, that is six years,

and the period on parole concludes at eight

years and that is the end of the sentence, so that

the process under the new scheme, and that would

now be applicable to a sentence imposed now, is

fairly complex and it would, in our submission, be

more practical for it to be remitted for sentence.

MASON CJ:	Yes, thank you, Mr Solicitor.
DEANE J:	Mr Solicitor, could I just ask you one thing,

and that is in the context of this section as you

see it, and the nature of the offences, do you

PlT8/l/HS	28	24/10/88
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think that the psychiatrist report on which

His Honour acted was an adequate basis to sentence

someone to an indeterminate sentence? I do not

want to go to it, but you have in mind the

sort of things such as, "I saw him one evening",

and "He seemed to resent things".

MR PARKER:  His Honour was very conscious, if it please

Your Honour, of the limitations of the report

and invited the obtaining of a further opinion,

but in the absence of that - and expressed

rejection of that invitation - it, together

with the other materials, in our respectful

submission, provided a reasonable basis and can we simp!_y

reiterate that very graphically before His Honour

there had been this direct submission of the

applicant himself which perhaps went far beyond

what any psychiatric report may have done to

reveal exactly the thought processes of the

applicant about this conduct.

DEANE J:  I see the force of that except when one reads

what His Honour said His Honour seemed to

place great reliance on the psychiatrist report

rather than anything else.

MR PARKER:  If it please Your Honour, having seen and heard

what His Honour saw and heard, to then have a

psychiatrist say, "This applicant is suffering

from paranoid schizophrenia", perhaps His Honour would have been in no doubt about the matter and

would have seen that as quite confirmatory of what

he himself had observed.

DEANE J:	Thank you.
MR PARKER:	If it please Your Honours.
MASON CJ:	Yes, Mr Wallwork.

MR WALLWORK:  I can answer a couple of queries that were

raised during argument, Your Honours. Your Honour

the Chief Justice .asked me about Mr Justice Burton.

At page 44 he thought that six years with a minimum

of three would be appropriate. As the Solicitor-

General has just told you, there is no minimum

before parole now, and if he were sentenced

to six - if the indeterminate sentence which

has been put on were simply removed he would

serve a minimum of three, as the Solicitor- sentence which His Honour the Chief Justice thought,

six. So that would be the position if you just

plain removed the indeterminate sentence order.

With respect to the other matters raised,

at page 73 there is the opinion of Dr Rollo who

is, I think, certainly equal to any prison

PlT8/2/HS	29	24/10/88
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psychiatrist here, what he thought, and then he

reiterated at page 75 his opinion that he was

not mentally ill enough to require an indeterminate

sentence. So to answer Your Honours, although

the psychiatric evidence was scant, the most

experienced, or the equivalent of the most

experienced prison psychiatrist in Western

Australia with 30 years experience, or whatever, that

was his opinion.

DEANE J:  While you are on that, if you were ultimately

to succeed and the matter were to be remitted for resentencing, would you say that the Crown should

be excluded from updating and bringing perhaps -

I am trying to think of the word - more thorough

psychiatric material befor~ the judge dealing with

the matter on a resentencing?

MR WALLWORK:  No, sir, I would not, for the reason that

if there is anything really updated that is needed

it is probably in his protection as much as

anybody else's that it be brought forward.

So I would not object to that.

DEANE J:  I did not really mean only updating. I meant

further - - -

MR WALLWORK:  No, I would not, if it please the Court,

but to answer Justice Brennan's question about

our MENTAL HEALTH ACT here, we do have a MENTAL

HEALTH ACT and section 30, if this one we have just

got out of the library is up-to-date - but it

has similar provisions - says that:

•	Where an oath is made before a justice that a person who appears to be suffering from mental disorder -
(a) is without sufficient means of support; or (b) is wandering at large; or

(c) has been discovered under circumstances that
denote a purpose of committing an offence against the law -
he may take various action.	We do have the usual

provisions under our MENTAL HEALTH ACT which are

designed to pick up people who are behaving as a

danger to themselves or the public generally.

Finally, section 37A of that yellow book that you

have up there has the sections which my learned

friend referred to about the provisions about in

case you decide to deal with it yourself,

section 37A(2) - I have not got the page number

here because I have got a different copy - but it sets out there:

Where a term is not more than

six years he is eligible after

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having served one third of a term

and where the term is more than six

years after having served two years.

That is the actual provision that operates now.

If it please the Court.

MASON CJ:  Thank you. The Court will consider its

decision in this matter and we will now adjourn.

AT 3.41 PM THE MATTER WAS ADJOURNED SINE DIE

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