Hunt v The Queen
[1999] TASSC 113
•28 October 1999
[1999] TASSC 113
CITATION: Hunt v R [1999] TASSC 113
PARTIES: HUNT, Geoffrey Charles
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 43/1999
DELIVERED ON: 28 October 1999
DELIVERED AT: Hobart
HEARING DATES: 26 August 1999
JUDGMENT OF: Cox CJ, Wright J, Slicer J
CATCHWORDS:
Criminal Law - Judgment and punishment - Sentence - Other matters - Tasmania - Application to be sentenced for murder - Factors to be considered - Whether or not psychiatric opinion based partially on observations of applicant while a life prisoner admissible because court prohibited from taking into account applicant's "conduct as a life prisoner".
In re Williams (1995) 5 Tas R 294, referred to.
Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act1994 (Tas), s9.
Aust Dig Criminal law [911]
REPRESENTATION:
Counsel:
Appellant: R A Browne
Respondent: J N Perks
Solicitors:
Appellant: Director of Legal Aid
Respondent: Director of Public Prosecutions
Judgment Number: [1999] TASSC 113
Number of Paragraphs: 32
Serial No 113/1999
File No CCA 43/1999
GEOFFREY CHARLES HUNT v THE QUEEN
REASONS FOR JUDGMENT COX CJ
WRIGHT J
SLICER J
28 October 1999
Orders of the Court
Appeal allowed.
Order declaring appellant ineligible for parole until the expiration of 25 years from 7 July 1976 quashed.
Order declaring appellant ineligible for parole until the expiration of 23 years from 7 July 1976 substituted.
File No CCA 43/1999
GEOFFREY CHARLES HUNT v THE QUEEN
REASONS FOR JUDGMENT COX CJ
28 October 1999
On 28 September 1976, the appellant pleaded guilty to the crime of murder and was sentenced to the then mandatory penalty of life imprisonment. Counsel who appeared for the Crown assured the presiding judge that there was nothing in the facts, of which he was aware, including a complete signed confession in detail to the facts alleged by the Crown, which would indicate any reason why the Court should not accept his plea. Counsel who then appeared for him, tendered two psychiatric reports indicating that there was no defence of insanity, but making some observations as to his psychiatric make-up and character. The reports indicated that, over the years, careful observation of the appellant would be required and some very intense psychological examinations and treatment needed prior to his discharge, if he were ever paroled. The reports were not relevant to any issue before the learned judge imposing the mandatory sentence and seem to have been tendered by the appellant's counsel as an encouragement to the prison authorities to make appropriate treatment available to him. Counsel for the Crown undertook to forward the reports to the Parole Board and to the Attorney-General.
In 1999, after more than 22 years' incarceration as a life prisoner, the appellant's application to be resentenced pursuant to the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 ("the Act"), s8(1), came on for hearing. The learned judge who heard it sentenced the appellant, once again, to imprisonment for the term of his natural life and ordered that he not be eligible for parole for a period of 25 years from 7 July 1976, that being the day the appellant was taken into custody and charged with murder. The appellant makes no complaint in respect of the re-imposition of the life sentence, but appeals against the order restricting his right to apply for parole until the elapse of 25 years from his being taken into custody. The grounds of appeal are as follows:
"1 The Learned Judge erred in refusing to receive as evidence upon the application for resentence reports from Dr Lopes, psychiatrist dated 11th August and 9th October 1998, together with a letter from the appellant's solicitors dated 5th October 1998 requesting the latter report.
2 The Learned Judge erred in the exercise of his discretion in ordering that the Appellant not be eligible for parole for a period of 25 years from 7th July 1976 in all the circumstances of the case including the facts that:
(i)The Appellant had no prior conviction;
(ii)The gravity of the crime was sufficiently reflected in the head sentence.
(iii)There was no evidence before the Learned Judge to show that the appellant remained or continued to be a risk to the community, whilst there was evidence the appellant had been treated during his incarceration;
(iv)The appellant had cooperated with police, pleaded guilty and expressed remorse for his crime."
The crime itself was a terrible one. The appellant, then aged 26 years, had lured the victim, a used car salesperson, to a lonely part of the Dromedary Road on the pretext of being interested in purchasing a car advertised by the victim's employers. He had responded to the advertisement, giving a false name and arranging a rendezvous. He had persuaded her to go with him to a side road where he sexually assaulted her and then murdered her by hitting her on the head with a rock. Her body was not found for two days. In a signed confessional statement, he admitted assaulting her and forcing her to engage in oral sexual intercourse upon him. Having ejaculated, he had left her and got in the car but, after turning it around intending to leave her there, he changed his mind and started to panic. He stopped the car, went back to where she was and she stood up and started to scream. He said he got frightened and hit her on the head with a stone four or five times. He then hid her body and her belongings, including her handbag. He had gone to the police station the following day, intending to give himself up, but had lost his nerve. Apprehended two days after the murder, he made the confession and, as already noted, pleaded guilty to the indictment. He had no previous convictions.
On the hearing of the application for resentencing under the Act, the contents of the two reports originally tendered were placed before his Honour. No objection was made to the contents of the report by Dr E Cunningham Dax, but some objections were made to certain factual material contained in that of Dr P Burges Watson. It was agreed that the presiding judge should not take into account those disputed facts, but could take into account the doctor's conclusion, the disputed facts being such that their absence would not have altered his opinion. Dr Cunningham Dax's opinion was as follows:
"He is a young man of unattractive appearance who was protected by and devoted to his mother up to the time of her death two years ago.
He has no experience of life, no friends, no social life and had no knowledge of or contact with the opposite sex.
His sex life had gone no further than masturbation; but in recent months his fantasy life had been influenced by a number of pornographic papers he had been shown, though he had never bought one himself.
He is inexperienced, unloved, inferior and naive. He had romanticised an erotic fantasy which he hoped would be changed into reality. To anyone with a better knowledge of life it would have been ridiculous to contemplate.
He has never been mentally ill nor has he shown any obvious signs of neurotic disorder. His indifference to his present position arises from his complete inexperience in life, his lack of foresight and self criticism, and his inability to appreciate very much of what other people think or feel.
I do not consider he was mentally ill before the alleged murder, or at the time of committing the crime; nor do I believe that in his present state he displays any signs of mental disorder. But on the other hand he is an abnormal person who is seriously sexually disordered.
The other important matter seems to be the danger of his repeating such an offence, even after the lapse of a number of years. Because he is so indifferent and the sexual activity arose without premeditation there is the necessity for his most careful observation in the future and some very intensive psychological examinations will be needed over the years prior to his discharge, if he is to be retained in prison."
Dr Burgess Watson concluded:
"Hunt shows many of the characteristics of the grossly deviant personality charged with major sex offences. Such offenders are usually 'loners' and they do not usually require the disinhibiting agents such as alcohol or cigarettes, outwardly leading what appears to be a blameless life.
…
… it would be my opinion that Hunt requires intensive on-going psychological and psychiatric investigation and treatment. As in the past, it would be predictable that his behaviour in prison will be exemplary and excite no cause for concern, while the basic psychopathology will remain unaltered without intensive treatment.
…It would, however, be my opinion that he could be properly labelled as a 'sexual psychopath' and, as already indicated, that he requires intensive and on-going psychiatric investigation and treatment."
For the appellant, it was sought to place before the Court, two reports from Dr Wilfred Lopes, who had been seeing him at the prison since August 1982 on a regular monthly basis until 1989, after which time he had seen him at about three monthly intervals. He also had access to reports of four other psychiatrists, including the two I have mentioned. He is in a unique position to proffer an opinion about the appellant's present psychiatric state and his prognosis for the future. Parts of Dr Lopes' opinion were as follows:
"I agree that he was grossly sexually disordered and over the years that he has received counselling he has acquired insight and there is no question that he has shown 'remorse' then as evidenced by persistent nightmares and his own words to Dr Dick and his subsequent behaviour has been exemplary.
He has been allowed to have his own utility vehicle and has been driving to work in the town unescorted and from his accounts there have been no problems and the Officers who are in charge do not have any reasons to disbelieve him.
…Mr Hunt has now served 22 years during which time he has matured and he has had extensive psychotherapy which I am sure is responsible for the insight into his crime. He is quite preoccupied with his work and when I paid a surprise visit to his cell I could not find any evidence to suggest tendencies toward sexual deviance.
I am quite satisfied that Mr Hunt is unlikely to re-offend or commit any sexual offences."
Asked in a letter, also tendered:
"If as you indicated to me on the telephone your opinion is that the chances of Mr Hunt re-offending would be infinitesimal, upon what information and/or materials do you base your opinion."
Dr Lopes replied:
"This opinion is based on the numerous interviews I have had with Mr Hunt since 1982. I have also had discussions with the officers and nursing staff at Prison Hospital and I have also had discussions with Lyn Gittings, Katharina Hodge and Liz Moore, who at various times have interviewed him. I have also confronted Mr Hunt directly about some of the accusations that Dr Burgess Watson [sic] made in his report to the court dated 21st September 1976 and I am quite satisfied with his explanations."
The Act, s9, relevantly provides:
"9 ¾ (1) On an application under section 8(1) the Supreme Court must resentence the applicant for the crime for which the applicant was originally sentenced to life imprisonment.
(2) …
(3) For the purposes of subsection (1), the court has the same powers and duties it would have had if the applicant had been convicted by that court of the crime referred to in that subsection after the commencement of this Act.
(4) In resentencing an existing life prisoner under this Part the court must not take into account the applicant's conduct as a life prisoner."
Section 11(4) provides:
"(4) A court hearing an application under section 8(1) is to proceed as if it were sentencing the applicant for the first time for the offence for which the applicant was originally sentenced."
The learned presiding judge declined to receive the evidence of Dr Lopes because he held that the opinion the doctor expressed was based upon the conduct of the appellant as a life prisoner and the Court could not therefore take it into account.
The view has been expressed at first instance that although the Court may not take into account such conduct in setting the head sentence under the Act, s9(1), different considerations apply in respect to the determination the Court is obliged by the Sentencing Act 1997 and, prior to its enactment, by the Parole Amendment Act 1994 (which was cognate with the Act) s12BA, to make when sentencing a person to imprisonment for the term of his or her natural life (Re Smith 66/1997). In that case, Slicer J, although not taking it into account in setting the head sentence, did take into account for the purposes of determining parole eligibility, extensive psychiatric material based on consultations with and observations of the applicant over an extended period of time while he was serving a life sentence.
Counsel for the appellant argued that the prohibition against taking his conduct as a life prisoner into account, was restricted by the Act, s9(4), to resentencing "under this Part", that is, the Act, Pt3 which contains no specific reference to the power or, in the case of a re-imposed life sentence, the obligation to set a non-parole period. Section 9(3), however, does provide that for the purposes of resentencing pursuant to an application therefor, the Court has the same powers and duties it would have had if the applicant had been convicted by that Court after the commencement of the Act. Hence, the powers and obligations imposed by the Parole Act 1975 and the Sentencing Act 1997, ss17 and 18, are imported into the task undertaken by a judge when resentencing under the Act and the obligation not to take into account the applicant's conduct as a life prisoner is not excluded on the basis that the setting of a non-parole period is not a function of a court resentencing under the Act, Pt3. That such a function is part of a sentence is made clear by the Sentencing Act, s18(3) which provides that:
"(3) An order made under subsection (1) forms, for all purposes, part of the sentence to which it relates."
There is a similar provision in s17(5) of the latter Act. There is, therefore, an obligation not to take such conduct into account, not only in setting the head sentence, but also in setting the non-parole period.
A prohibition against taking that conduct into account on the resentencing of an existing life prisoner, may be explained on the basis that Parliament intended that existing life prisoners should be treated by the Court in the same way as persons newly convicted of crimes hitherto requiring the imposition of a mandatory life sentence. As a head sentence and a parole eligibility order in the case of the latter class of offender would necessarily be imposed in circumstances where the offender had not hitherto been incarcerated for that crime, his conduct as a life prisoner could only be anticipated, whereas that of an existing life prisoner would be known. Parliament may have thought it appropriate to place both classes of prisoner in the same position, by requiring that the conduct of an existing life prisoner, whether good or bad, should not be taken into account by the Court in setting the limits of his head sentence and of his eligibility for parole, leaving it to the Parole Board to determine when, if, and under what conditions he should be granted parole. "The behaviour of the prisoner while in prison" is a factor which the Parole Board is now specifically obliged to take into consideration by virtue of the Corrections Act 1997, s72(4)(h), but it was obviously a relevant consideration under the Parole Act which was in force when the Act commenced, even though not spelt out.
In reWilliams (1995) 5 Tas R 294, Wright J said of the provision under consideration here:
"It is plain that our Parliament does not intend a re-sentencing court to become a surrogate parole board. The purpose of this part of the new legislation appears to be simply to provide for the substitution of a finite period of imprisonment in an appropriate case, for the indeterminate period which is inherent in a sentence of life imprisonment. It also seems to me, with respect, that the approach of the mainland courts in looking to see whether or not the prisoner applying to be re-sentenced has undergone rehabilitation during his imprisonment, is calculated to positively divert a sentencing court from the true object of imposing a heavy sentence for serious crimes." (At 296)
Further, at 297, he said:
"… Parliament has clearly said that the re-sentencing court is not to usurp or displace the role of the Parole Board by reviewing and taking account of the behaviour and progress towards societal re-integration of the applicant whilst in custody."
In that case, Wright J did not take into account the conduct of the applicant who, having been granted parole, committed crimes during the time he was released on licence and who was then re-incarcerated. That, he held, was conduct "as a life prisoner".
In a later case of Adams unreported 24 June 1997, Wright J was confronted by a situation similar to the present, in that a psychiatric opinion was tendered, based, in part at least, on an assessment of the applicant made during his incarceration as a life prisoner. No issue as to his psychiatric state had arisen on his trial or in respect of the mandatory life sentence and, hence, no such assessment of him at the time of his conviction was available to the court. This would often be the case where the issues on trial were accident, self-defence, provocation or identity. Speaking of the case of Smith (supra), Wright J said, at 3:
"In In re Smith (supra) at 2, my learned brother Slicer J appears to have expressed the opinion that the Act, s9(4) precludes the re-sentencing Court from taking into account material in a psychiatric report prepared since the imposition of the original life sentence which is dependent in part upon behaviour after that time, but I find myself unable to concur with that view. The psychiatric condition of the prisoner was irrelevant for the purpose of sentencing under the old regime as a life sentence was mandatory. It is therefore inherently unlikely in any given case that a psychiatric assessment of the prisoner's mental condition prior to the original sentence will be available to the court invested with the responsibility of re-sentencing him. I cannot think that our legislators intended to preclude the court from considering material of this kind by using the statutory formula which we see in s9(4). To my mind, the embargo contained in that subsection relates only to the behaviour of the offender as an inmate of the gaol or parolee, as the case may be, from the time of the initial sentence until the imposition of the fresh sentence. If the subsection was intended to have a wider reach it would have been a simple thing for Parliament to say that the Court was to pay no regard to any fact, matter or circumstance of any kind pertaining to the prisoner, subsequent to the date of the original sentence.
The psychiatric assessment provided by Dr W Lopes in this case, indicates that the applicant is still somewhat immature and lacks sophistication but has no evidence of mental illness. He has acquired reading and writing skills which have given him greater degree of self confidence than when he was first sentenced and he now expresses remorse for his crime. From a psychiatric standpoint the prognosis is 'hopeful'. This material provides no evidence of a dramatic character transformation but it does suggest that the element of public risk is somewhat less than it was in 1986.
In my opinion a psychiatric assessment may be taken into account if it aids the re-sentencing Court in determining the appropriate disposition of the offender by providing an insight into his mental capacities and functions as they exist at the time of his being re-sentenced. I think that this process is not limited to fixing a non-parole period as Slicer J suggested, but can, in my view, extend to the assessment of the new sentence itself."
With respect, I agree. The learned resentencing judge in the instant case observed that it appeared to him that the interpretation adopted by Wright J in Adams was not entirely consistent with his judgment in Williams (supra). However, I see no inconsistency between the two decisions. In determining what limit is to be placed on the prisoner's parole eligibility, the Court is specifically authorised by the Sentencing Act to have regard to "the offender's antecedents or character" (ss17(4) and 18(2)). In Williams, the misbehaviour of the applicant while on parole long after conviction, was not relevant to the gravity of the crime for which he was being resentenced and was not a matter logically relevant to a determination of whether or not he should be made eligible for parole but, rather, whether the Parole Board should at some future time grant him parole. In Bugmy v R (1990) 169 CLR 525 at 538, Dawson, Toohey and Gaudron JJ said:
"… in the end the minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole: see generally King CJ in The Queen v Robinson (1979) 22 SASR 367, at p 370. There is no incongruity necessarily involved in this approach, as Jenkinson J noted in Morgan and Morgan (1980) 7 A Crim R 146, when, as a member of the Victorian Court of Criminal Appeal, he said (at p 154):
'The term of the sentence is the period which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender. The ... minimum term is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify'."
In Adams, on the other hand, it was not the applicant's behaviour as a life prisoner, as such, which was relevant but, rather, his character as assessed by experts who had made observations of him while he was a life prisoner.
In my view, the Court is not prohibited from taking into account assessments of a life prisoner's character, including his psychiatric condition, past and present, merely because those experts who make them may be forced by circumstance to do so, relying on observations of the prisoner while he is serving a life sentence. In the present case, Dr Lopes' opinion concerning the appellant's character and the improbability of his offending again, rested on a number of matters, including the numerous interviews he had had with the appellant since 1982. His conclusions may well have been reinforced by the fact that the appellant had been an exemplary prisoner, although it is interesting to note that Dr Burges Watson, in 1976, while urging intensive treatment of him, nevertheless predicted "that his behaviour in prison will be exemplary and excite no cause for concern". In my opinion, Dr Lopes' report was admissible and the Court was not precluded from taking his opinions into account by the prohibition in the Act, s9(4).
Accordingly, the exercise of the resentencing discretion miscarried in respect of the setting of a non-parole period and it is unnecessary to consider ground 2 of the notice of appeal. While acknowledging the magnitude of the appellant's crime, the extent of which is itself acknowledged by the head sentence of life imprisonment, it would be my view that after more than 23 years in custody, the appellant should be permitted to seek parole from the Board and that any greater restriction upon his ability to do so is unnecessary to ensure that justice according to law is not violated. Whether or not to release him, is the responsibility of the Parole Board.
I would allow the appeal, confirm the head sentence of life imprisonment and order that the appellant not be eligible for parole for a period of 23 years from 7 July 1976.
File No CCA 43/1999
GEOFFREY CHARLES HUNT v THE QUEEN
WRIGHT J
28 October 1999
I have had the advantage of reading the reasons prepared by the learned Chief Justice. I agree with those reasons and the order proposed.
File No CCA 43/1999
GEOFFREY CHARLES HUNT v THE QUEEN
SLICER J
28 October 1999
The appellant sought review of a sentence of life imprisonment imposed in 1976 following his conviction for murder, in accordance with the Criminal CodeAmendment (Life Prisoners and Dangerous Criminals) Act 1994 ("the Act"). On the hearing of the application, he attempted to place before the Court, evidence in the form of reports of a psychiatrist who had examined the appellant on various occasions since his conviction. The learned sentencing judge declined to receive the material, holding that the legislative scheme prohibited the use of material relating to conduct whilst a prisoner.
The Act, s9, relevantly provides:
"9 ¾ (1) On an application under section 8(1) the Supreme Court must resentence the applicant for the crime for which the applicant was originally sentenced to life imprisonment.
(2) …
(3) For the purposes of subsection (1), the court has the same powers and duties it would have had if the applicant had been convicted by that court of the crime referred to in that subsection after the commencement of this Act.
(4) In resentencing an existing life prisoner under this Part the court must not take into account the applicant's conduct as a life prisoner."
Subsection (3) provides the same power and imposes the same duties as if the appellant was being sentenced for the first time as at the date of the application. Certain statutory provisions, non-existent at the time of the original sentence, might require recourse to material unavailable or unnecessary or of the original hearing which might, in turn, depend on observations of the appellant as a prisoner. Section 9(4) restricts the Court from taking into account "conduct as a life prisoner".
On the hearing of the application, the learned sentencing judge refused to receive into evidence two reports of Dr Lopes, a forensic psychiatrist, dated 11 August and 9 October 1998. In the first report, Dr Lopes set out the background history and a general summation of the circumstances surrounding the commission of the crime. He then stated his opinion in the following terms:
"Opinion:
I would regard Mr Hunt as a man of average intelligence, Albino who lacks self confidence and with very limited social skills who blamed his mother for ruining his life at the same time feeling guilty about these thoughts particularly that he was not able to apologise to her before she died.
It appears from the account that he gave me which has been quite consistent since I first started seeing him in 1982 and also quite consistent with the accounts he gave to Dr Cunningham Dax, Dr Dick, Dr Sale and to two social workers Mrs Giddings and Katrina Hodge that the turning point to what he describes as the 'dreadful thing he did' was triggered off by his very ambivalent thoughts about his mother. It appears that the crime was impulsive and the murder was not pre-planned.
I have major reservations about Dr Burges Watson's report which, although was done at the same time as Dr Cunningham Dax's in September, draws conclusions which are dramatically opposite. Dr Burges Watson stated that Hunt had a grossly deviant personality and this was based mainly on the 'crime' itself and some 'past history' of sexual misbehaviours for which there was no definite proof or evidence. Of course his opinion and prognosis is absolutely correct about a person who is diagnosed as a sexual psychopath but I do not believe that Hunt ever was or is a 'sexual psychopath'.
I agree that he was grossly sexually disordered and over the years that he has received counselling he has acquired insight and there is no question that he has shown 'remorse' then as evidenced by persistent nightmares and his own words to Dr Dick and his subsequent behaviour has been exemplary.
He has been allowed to have his own utility vehicle and has been driving to work in the town unescorted and from his accounts there have been no problems and the Officers who are in charge do not have any reasons to disbelieve him."
The last paragraph clearly offends the provisions of the Act, s9, as it purports to provide an example of conduct whilst a prisoner. The preceding sections were objected to on the basis that the opinion was, of necessity, dependent on the history and behaviour of the appellant as a prisoner. The second report was made in response to the following questions:
"1 In your opinion, what are the prospects of Mr Hunt re-offending. either in terms of sexual offences or other violent offences?
2 If, as you indicated to me on the telephone, your opinion is that the chances of Mr Hunt re-offending be infinitesimal, upon what information and/or materials do you base your opinion.
3 You take issue with the diagnosis Dr Burges Watson's report dated 21st September 1976 that Mr Hunt be labelled as a 'sexual psychopath'. Would you please explain the condition (sexual psychopath) and advise upon what basis you reject that diagnosis.
4 Whether you can offer another opinion as to Mr Hunt's development on insight, maturity or understanding of his condition and/or predicament."
The relevant parts of the report state:
"1 The prospects of Mr Hunt reoffending are infinitesimal. There is no history of prior offences of violent nature and whilst in prison he has not shown any propensity to violence. As far as future sexual offending has no offences of sexual nature, the only offence that he committed was this one he pleaded guilty to.
2 This opinion is based on the numerous interviews I have had with Mr Hunt since 1982. I have also had discussions with the officers and nursing staff at Prison Hospital and I have also had discussions with Lyn Gittings, Katrina Hodge and Liz Moore, who at various times have interviewed him. I have also confronted Mr Hunt directly about some of the accusations that Dr Burgess Watson made in his report to the court dated 21st September 1976 and I am quite satisfied with his explanations.
3 Dr Burgess Watson uses the term Sexual Psychopath. This term has not been in use for at least the past 20 years and it is not found as such in DSMIV. I do not know how Dr Burgess Watson uses that term.
My understanding of the term 'sexual psychopath' would be that a person with that label would have
a) An Anti-social Personality Disorder
b) This would include gross sexual deviance.
Neither the Prosecution nor Dr Burgess Watson were able to provide any evidence that he has an antisocial personality disorder or even traits - in fact he not only held a regular job but also looked after his sick mother full time.
The only sexual deviance for which evidence exists is the very heinous crime of murder including sexual violence of Miss Knight. The instances of sexual nature Dr Burgess Watson mentions in the report do not stand to objective scrutiny, they were heresy [sic] and not tested in court and Mr Hunt himself does not make an excuses and say that he does not remember. He definitely denies some of those allegations and has an alternative explanation.
4 Mr Hunt has now served 22 years during which time he has matured and he has had extensive psychotherapy which I am sure is responsible for the insight into his crime. He is quite preoccupied with his work and when I paid a surprise visit to his cell I could not find any evidence to suggest tendencies toward sexual deviance.
I am quite satisfied that Mr Hunt is unlikely to re-offend or commit any sexual offences. Perhaps it might be interesting if Dr Burgess Watson were to examine him now after 22 years."
The reports of Dr Lopes contained material which was dependent on examination of the appellant, assessment and clinical judgment based on history and reference to the developments within the discipline of psychiatry since the date of the original sentence. Although assessment could not be properly made without regard to the life led by the appellant during the intervening period, it was not evidence of conduct per se. The nature of the evidence was that of opinion.
The learned sentencing judge considered differing approaches to the question taken in Re Williams (1995) 5 Tas R 294, Adams, unreported 24 June 1997, (the point not being decided by the appellate court in Adams v R 41/1998) and Smith 66/1997. He did not accept those approaches and determined that he was precluded from paying regard to opinion evidence dependent on conduct of the appellant whilst in prison.
The evidence retained the characterisation of the opinion of a qualified expert. Whilst the basis of opinion evidence must be explained by the witness (R v Halley [1963] Qd R 214) and its factual basis identified and proved (Ramsay v Watson (1961) 108 CLR 642, Jeffrey v R (1991) 1 Tas R 336 at 345 - 348), it remains a compilation of the knowledge of the witness; the data and experience comprised in the discipline; and the making of judgments on the basis of direct contact and assumed facts. Statements made by a patient to a medical practitioner can be regarded as part of the res gestae, ie, the state of health, mental or otherwise, of that patient. In their joint judgment in Ramsay v Watson, Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ stated, at 648 - 649:
"A sounder argument for admitting evidence of what the men had told the examining doctor might have been that it was part of the material on which he formed the opinion that he gave in evidence. When a physician's diagnosis or opinion concerning his patient's health or illness is receivable, he is ordinarily allowed to state the 'history' he got from the patient. This practice accords with what seems to be the better opinion in the United States: see Wigmore on Evidence s 688. It matters not whether the person whose health is in question was a regular patient of the doctor, or whether the doctor saw him for the purpose of qualifying as a witness. This, of course, is quite a different matter from the rule last discussed. That, in cases where it applies, makes statements made to anyone concerning present symptoms and sensations admissible as evidence that those symptoms and sensations, in fact, existed. This makes all statements made to an expert witness admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies; but, except they be admissible under the first rule, such statements are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician's opinion may have little or no value, for part of the basis of it has gone. Each case depends on its own facts. In this case counsel for the defendant sought to get the examining doctor to recount things he had been told by those he examined. Yet he did not undertake to call them as witnesses. Indeed he made it clear that he did not intend to do so. His Honour in his summing-up told the jury that the medical evidence was that none of the twenty-one men had, when examined, exhibited any symptoms of lead poisoning. The appellant nevertheless complains, because it seems that the respondent's counsel had suggested to the jury that they might discount this evidence, as they did not know the past medical history of the men. This comment, the appellant suggests, could not have been made had the doctor been allowed to tell the jury what they had told him. His Honour, however, could properly refuse to admit evidence of this, it having been made apparent that the men would not be called. His refusal is not a reason for a new trial."
In the case of an application for re-sentencing, an appellant ought be permitted to give evidence of thought patterns, dreams, reactions and insight as a basis for opinion evidence. He ought be permitted to give evidence of physical manifestations which might be relevant to the existence or otherwise of a psychiatric or psychological pathology. Where opinion evidence is tendered, the opponent ought be permitted to challenge the factual assumptions upon which the opinion is based and to require direct proof of that factual material. But the evidence receivable is not that of conduct. Conduct is the manner of conducting oneself and involves behaviour. The Act, s8, precludes evidence of conduct whilst a prisoner. The purpose is consistent with an intention by Parliament to have a sentence imposed by reference to the nature of the crime and the subjective state of the offender.
I have had the advantage of reading in draft form the reasons for judgment of the learned Chief Justice and agree with his analysis that the evidence could be categorised as evidence of character. I agree with that analysis and conclusion. On that basis, alone, the evidence ought to have been received.
Non-parole period
In Smith (supra), I concluded that a Court could pay regard to opinion evidence, in part dependent on conduct, in determining the issue of parole. In his reasons for judgment ([1999] TASSC 63) at 4, the learned sentencing judge stated:
"… Slicer J did take into account the conduct of the applicant whilst a life prisoner for the purpose of determining a non-parole period. In his reasons for judgment, his Honour did not analyse the basis for so doing."
On re-reading these reasons, I understand the reason for that statement and take this opportunity to clarify the reasoning.
1 A person convicted of murder prior to the Parole Amendment Act 1994, s12BA had no right to have a parole period fixed by a court.
2 No question of an intention by Parliament to ensure that the original sentence ought only be reflective of the circumstances as they original existed arose.
3 The 1994 amendment (now replaced by the Sentencing Act 1997, s18) requires a court to fix a non-parole period in cases where a life sentence is imposed.
4 Different considerations apply between the determination of a sentence and the minimum time which might elapse before a person is permitted, on licence, to re-enter the community (Bugmy v R (1990) 169 CLR 525).
5 Those factors include an assessment of future risk to the community. A court, at the time of the imposition of sentence, is ill-equipped to make such an assessment. A court engaged in resentencing has the advantage of making such an assessment by reference to known conduct during the intervening period.
6 The legislation (Parole Amendment Act 1994, s12BA, the Sentencing Act 1997, s18) permits the court to:
"… have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have particular regard to all or any of the following:
(a) the nature and circumstances of the person: offence;
(b) the offender's antecedents or character."
Character can be judged, at least in part, by conduct. The court is permitted to pay regard to "such matters as it considers necessary and appropriate" which includes assessment of future risk.
7 The Act, s9(4) precluded regard being had to conduct in the determination of sentence and made no reference to parole. They remain separate issues.
8 Therefore, a court is permitted to pay regard to intervening conduct in the determination of any non-parole period.
I adhere to that analysis.
Conclusion
1 A court conducting a resentencing in accordance with the Act, is entitled to receive opinion evidence based on material and assessment obtained or made subsequent to the time of the original imposition of sentence.
2 In determining the issue of character, a court is required to take into account material which concurrently could be characterised as evidence of conduct.
3 Evidence of conduct per se, ie, unrelated to a permitted category, may not be used.
4 No constraints are imposed by the Act, s9(4) in the determination of a non-parole period.
I agree with the assessment made by the learned Chief Justice as to the appropriate sentence. I would allow the appeal, confirm the head sentence of life imprisonment and order that the appellant not be eligible for parole for a period of 23 years from 7 July 1976.
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