Hunt v The Queen
[1999] TASSC 63
•1 June 1999
[1999] TASSC 63
CITATION: Hunt v R [1999] TASSC 63
PARTIES: HUNT, Geoffrey Charles
v
R
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: C222/1976
DELIVERED ON: 1 June 1999
DELIVERED AT: Hobart
HEARING DATES: 25 February, 4 March, 7 May 1999
JUDGMENT OF: Underwood J
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Other matters - Tasmania - Resentence for murder - Relevance of applicant's conduct as a life prisoner to the fixing of the "head sentence" and the fixing of the non-parole period - Non-parole period or minimum term.
Criminal Code Amendment (Life Prisoners & Dangerous Criminals) Act 1994 (Tas), s9(4).
Sentencing Act 1997 (Tas), ss17 and 18.
In re Williams (1995) 5 Tas R 294; In re Clark 21/1996; Adams v R 41/1998, discussed.
In re Smith 66/1997, not followed.
Bugmy v R (1989 - 1990) 169 CLR 525, applied.
Aust Dig Criminal Law [911]
REPRESENTATION:
Counsel:
Applicant: R A Browne
Respondent: D J Bugg QC
Solicitors:
Applicant: Legal Aid Commission
Respondent: Director of Public Prosecutions
Judgment Number: [1999] TASSC 63
Number of Paragraphs: 34
Serial No 63/1999
File No C222/1976
GEOFFREY CHARLES HUNT v THE QUEEN
REASONS FOR JUDGMENT UNDERWOOD J
1 June 1999
The application
On 28 September 1976, the applicant was sentenced to imprisonment for the term of his natural life upon his own plea of guilty to murder. The particulars of the indictment charged the applicant with the murder of Susan Winifred Knight on 5 July 1976. The applicant now applies for resentencing pursuant to the Criminal Code Amendment (Life Prisoners & Dangerous Criminals) Act 1994 ("the Act"), s8(1).
Facts surrounding the commission of the crime
At the time of her death, Miss Knight was aged 24 years. She was a sales representative with Co-operative Motors Ltd in Hobart. Miss Knight advertised the sale of a Volkswagen motor vehicle or vehicles in the now defunct newspaper, the Saturday Evening Mercury. Her name was published as the person to contact. On his own admission, the applicant read the advertisement and, although he had never met Miss Knight before, decided that he would have sexual intercourse with her. To satisfy his desire, the applicant rang Miss Knight's place of employment, but was told that she was out. The applicant telephoned again later and this time spoke to Miss Knight. He told her that his name was Peter Bennett, that he was from Triabunna and that he wanted to buy a Volkswagen for his wife. The applicant told Miss Knight that he would like to test drive a car she had advertised and, in order to lure to her to a remote area, asked her to meet him at Dromedary Road, approximately two miles west of Bridgewater. Miss Knight agreed to meet the applicant that afternoon at the place he suggested.
After the arrangements had been made, the applicant sat in his car outside a hotel at Bridgewater. At one point, he telephoned Miss Knight's place of employment again and was told that she had left to meet a Mr Bennett. He returned to his car and waited until he saw a woman driving a car like the one he had indicated that he might buy, turn into Dromedary Road. He assumed that the driver was Miss Knight. The applicant followed her and eventually met her at the pre-arranged place.
The applicant got into the driver's seat of Miss Knight's car and she got into the passenger seat. The applicant then drove the car for some distance, pretending that he was assessing its value and deciding whether or not to purchase it. Claiming to test a noise in the gear box, the applicant took the car up a rough, hilly road off Dromedary Road. As the applicant drove up the road, there was a noise from the rear tyre. Miss Knight said that she thought there may have been a flat tyre and, accordingly, the applicant pulled up. He got out and discovered a stone wedged in the tread of one of the back tyres. He prised it loose with a screw driver. As to what happened next, the applicant told police that he "didn't know what came over [him], [he] grabbed her around the neck and tried to drag her into the bush". He said that he did this because he wanted to have intercourse with her. The applicant told the police that when he grabbed Miss Knight she stamped on the arch of his right foot, broke away and started to run down the road. However, he chased her and grabbed hold of her arm and, against her struggles, dragged her into the bush. He forced her to the ground behind some bushes and told her that he wanted to have intercourse with her. Miss Knight said to the applicant that "she had never been with a boy before". She was trembling and crying as he held her to the ground and pulled her pants down. He then forced his penis into her mouth. The applicant told police that after he had ejaculated he got up, leaving Miss Knight lying on the ground. The record of interview continues as follows:
"Q What did you do then
AI walked back to the road and thought I would drive off and leave her there, but I turned the car around and changed me mind and started to panic
QWhat did you then
AI stopped the car and went back to where she was and she stood up and started to scream
QWhat did you do then
AI got frightened and picked up a stone and hit her on the back of the head
QHow many times did you hit her with the stone
AI don't remember it could have been four or five times
QWhen you first hit her with the stone, where was she
AShe was running away from me
QWhat did she do after you struck her the first time with the stone
AShe staggered so I hit her again and again I don't know how many times I just wanted to stop her from screaming"
In an attempt to cover up the crime, the applicant moved the Volkswagen some ten kilometres from where he had left the deceased. About 9am the following morning, the applicant telephoned Co-operative Motors and again said that he was Peter Bennett. He asked for Miss Knight. He was told she was not there. The applicant then said that she had an arrangement to meet him yesterday, but failed to turn up. The inference is that he made that call to see if the body had been found. Miss Knight died from injuries sustained in consequence of massive fractures to the skull, a number of which, in the opinion of the pathologist, must have been inflicted while she was lying on the ground.
The hearing in 1976
After the applicant pleaded guilty to murder, his counsel explained to the learned sentencing judge that the applicant thoroughly understood the nature of the plea that he had entered. Counsel added that the applicant had been thoroughly investigated by two psychiatrists and they were satisfied that there was no prospect of him maintaining a defence pursuant to the Criminal Code, s16. To bolster that view, the applicant's counsel tendered two psychiatric reports, one by Dr Burges Watson and one by Dr Cunningham Dax. Counsel then said:
"I would ask your Honour to make a comment that it is properly in the interests of this accused and of society that during the time the accused is to be incarcerated pursuant to the sentence which you will pass upon him, that he should have and be subject to special medical investigation and treatment."
In his report, Dr Cunningham Dax opined that the applicant was "an abnormal person who is seriously sexually disordered" and there was a "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". Dr Burges Watson opined that the applicant "could be properly labelled as a 'sexual psychopath' and … that he requires intensive and ongoing psychiatric investigation and treatment".
The hearing in 1999
Upon the hearing of the application before me, the Director of Public Prosecutions relied upon the contents of those reports handed up to the sentencing judge in 1976 and submitted that the circumstances of the crime and the contents of those reports were such that the only appropriate sentence was a life sentence.
Mr Roland Browne for the applicant, sought to tender by way of rebuttal, two reports from Dr Lopes, psychiatrist dated 11 August and 9 October 1998, together with a letter from himself dated 5 October 1998, requesting the latter report. Mr Bugg QC objected to the reception of these reports upon the basis that the Act, s9(4) provides:
"(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."
In order to facilitate argument with respect to the admissibility of Dr Lopes' reports, they were taken in evidence de bene esse. Stated shortly, the substance of these reports is to the effect that in Dr Lopes' opinion the applicant was unlikely to re-offend or to commit any sexual offences and that he was incorrectly labelled a psychopath. The reports state that these opinions are based upon interviews with the applicant since 1982 and his conduct while in prison.
At the hearing, a subsidiary issue arose when Mr Browne objected to the reception of some parts of Dr Burges Watson's report, notwithstanding that the report was tendered on behalf of the applicant at the time he pleaded guilty. This objection raised the questions of what process or procedures should be followed for the purpose of determining the facts relevant to the resentencing process and the status of the material put before the learned sentencing judge at the time sentence was originally imposed. In this respect, the Act, s11(4), directs this Court to "proceed as if it were sentencing for the first time for the offence for which the applicant was originally sentenced." With respect to this, I venture to repeat the observations that I made in Carroll, 90/1998 at 2 - 3. However, it is unnecessary to pursue this question further because, as events turned out, the Crown did not seek to rely upon the disputed material in Dr Burges Watson's report and, in return, the applicant no longer took issue with Dr Burges Watson's opinion at the conclusion of his report, which I have set out above.
The reception of evidence of the applicant's conduct as a life prisoner
Relevant to this issue, the Act contains two critical provisions. They are, s9(4) which provides:
"(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."
and s11(4) which 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."
On behalf of the applicant, Mr Roland Browne submitted that although these provisions prevent the Court receiving material concerning the applicant's conduct as a life prisoner when determining the "head sentence", they do not operate as a bar to the reception of such material when considering a non-parole period.
The Act commenced on 5 July 1995 (Statutory Rule 71/1995). By the same Act, the Code, s158, was amended to provide that the sentence for murder shall be imprisonment for the term of his or her natural life or for such other term as the Court determines. The Sentencing Act 1997 was enacted three years after the enactment of the Act, but it did not come into operation until 1 August 1998 (Statutory Rule 116/1998). At the time the Act commenced, the statutory provisions conferring a power on the Court to fix a non-parole period were enacted in the Parole Act 1975. Since 1 August 1998, those provisions have been enacted in the Sentencing Act.
In re Williams (1995) 5 Tas R 294, is the first reported decision to deal with the meaning of the Act, ss9(4) and 11(4). In this case, Wright J noted that s9(4) was a unique legislative provision in Australia and said, at 296:
"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."
Wright J then made some observations about the aims of sentencing and concluded this part of his reasons by saying, at 297:
"… 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 Clark 21/1996, Cox CJ did not have to determine whether he could receive material concerning the applicant's conduct as a life prisoner, but he did make some observations about the fixing of a non-parole period, to which I shall return shortly.
In Smith 66/1997, 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. After excluding such considerations for the purpose of fixing the "head sentence", his Honour turned to the question of parole saying, "different considerations apply in the determination of parole".
In the matter of Jamie Leigh Smith 34/1998, Cox CJ again did not have to determine the proper meaning of the relevant provisions of the Act, but did observe at 3, "I have not been given any psychiatric assessment of the applicant". However, I note that such psychiatric assessment may not be dependent on the conduct of the applicant whilst a life prisoner.
In Adams v R 41/1998, the Court of Criminal Appeal, was called upon to consider whether a resentence for murder was manifestly excessive in the circumstances of the case, in particular, whether the setting of a period of 18 years before the appellant is eligible for parole was an erroneous exercise of the sentencing discretion. The issue that is presently for determination was not considered by the Court of Criminal Appeal. Similarly, it was not considered by me in the matter of Carroll (supra).
Although the conduct of the appellant as a life prisoner was not raised as an issue in the Court of Criminal Appeal in Adams, the learned sentencing judge did take such conduct into account, both in fixing the "head sentence" and in fixing the non-parole period insofar as it formed the basis of a psychiatric report put before him. In his comments on passing sentence in that case, Wright J said:
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."
From that passage it appears to me that Wright J adopted an even wider interpretation of the provisions of the Act, s9(4) than that adopted by Slicer J in Smith, and one that is not entirely consistent with his judgment in Williams (supra).
After anxious and careful consideration, I find that I am unable to agree with either Wright J or Slicer J with respect to the relevance of the applicant's conduct as a life prisoner when determining a sentence and ordering a non-parole period. It must be borne in mind that s9(4) prohibits the Court from taking into account the applicant's conduct as a life prisoner for the purpose of "resentencing". So the essential question is to ascertain what is encompassed by the word resentencing as enacted in that subsection.
The Sentencing Act, ss17 and 18 provide that upon a determination of the question of parole, the Court "may have regard to such matters as it considers necessary or appropriate" and, without limiting the generality of that, may have regard to:
"(a) the nature and circumstances of the offence;
(b) the offender's antecedents or character;
(c) any other sentence to which the offender is subject."
In making an order that a prisoner shall not be eligible for parole or in ordering an extension of the statutory default non-parole period, a sentencing judge is increasing the severity of the punishment by delaying the possible time for release from prison. See Gill v R 34/1990 per Crawford J at 7.
As Cox CJ said in Adams (supra) at 2:
"In exercising the discretion reposed in it, a sentencing court must consider (inter alia) what minimum time justice requires that the prisoner must serve, having regard to all the circumstances of his offence. That is a factor specifically addressed in the Act s12B [Sentencing Act ss17 and 18]."
In Power v R (1974) 131 CLR 623, Barwick CJ, Menzie, Stephen and Mason JJ said at 628:
"In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention."
See also Deakin v R (1984) 58 ALJR 367; R v Watt (1988) 165 CLR 474 at 481. The proposition set out set out above was re-affirmed in Bugmy v R (1989 - 1990) 169 CLR 525 at 531, where Mason CJ and McHugh J went on to say, at 531:
"Accordingly, although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner: Attorney-General v Morgan and Morgan (1980) 7 A Crim R 146. In that case Jenkinson J, with whom Kaye J agreed, pointed out (at p 155) that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community 'will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice'."
The now repealed Parole Act was amended by the Parole Amendment Act 1994. Section 2 of that Act provided that it shall commence on the day that the Criminal Code Amendment (Life Prisoners & Dangerous Criminals) Act commences. The Parole Amendment Act altered the Parole Act, s12B, to exempt the discretion to fix or not fix a non-parole period from cases in which a term of imprisonment for life is ordered. The Parole Amendment Act also inserted s12BA which provided that in the case of the imposition of a life sentence, the Court must either fix a non-parole period or make an order that the prisoner is not eligible for parole. Section 12BA(2) enacted:
"An order under made under subsection(1) [non-parole period or order of ineligibility for parole] forms, for all purposes, part of the sentence to which it relates." [emphasis added]
Section 12B(3) is to the same effect. The Parole Act, ss12B and 12BA have been enacted (with minor rearrangement of some of the words) in the Sentencing Act, ss17 and 18.
Accordingly, when determining the appropriate length of the term of imprisonment that must be served as a minimum term, the Parliament and the common law require the Court to have regard to the matters set out in the Sentencing Act, ss17(2) and 18(2), and Parliament has enacted that an order, either that the prisoner is ineligible for parole or is not eligible for parole until after the expiration of a specified period of time, "forms for all purposes part of the sentence to which it relates". With respect to those who have a different view, it seems to clearly follow that the word "resentencing" as enacted in the Act, s9(4), must include both the order for imprisonment and the order with respect to parole, if one is made in the case of imprisonment for a term of years.
As Wright J observed in Williams (supra), the Court is not a surrogate for the Parole Board when resentencing under the Act. The Parliament has spelled out the matters that are relevant to a grant of parole. These provisions currently are enacted in the Corrections Act 1997, s72. That section empowers a grant of parole subject to "such terms and conditions as the Board considers necessary". The Court has no power to impose parole subject to terms and conditions. When fixing sentence, the Court has no business enquiring into the matters solely relevant to the grant of parole.
For these reasons, the evidence received de bene esse, which is based upon the conduct of the applicant as a life prisoner, will not be received upon this application. Unless regard is had to the conduct upon which an opinion is based, the opinion has no weight in the sentencing process.
It is unfortunate that this Court has given three decisions concerning the admissibility of material upon a resentencing application, each expressing a different view. However, there is nothing that can be done about that as there is no power to state a case for the consideration of the Court of Criminal Appeal.
The sentence
The applicant's crime was not premeditated in that he formed no intention to kill Miss Knight until he had turned back to where he had left her lying on the ground and she had started to scream. However, it is a very serious circumstance of aggravation that the applicant put a plan in place to lure Miss Knight to the area where she was killed for the purpose of committing the crime of rape. The random taking of a young woman for the purpose of sexual gratification and then murdering her strikes terror into the community and must be regarded as one of the most serious forms of murder. The applicant's victim was a young woman with the whole of her life to look forward to. Her murder cut short that life. It has caused Miss Knight's family, particularly her mother, to suffer grief and suffering from which there has been no recovery. At the time of the commission of the crime, the applicant was aged 26 years. He had no prior convictions but, according to the reports of Dr Burges Watson and Dr Cunningham Dax, to which I have referred, there was a risk of him re-offending. I have regard to that in accordance with the ruling I have made. Although, of course, preventative detention is not appropriate, protection of society is a relevant consideration in the imposition of sentence. In these circumstances, it seems to me that the appropriate approach is to sentence the applicant to prison for life and to fix a non-parole period, after taking into the account the matters to which I referred earlier. The Parole Board will be best situated to determine when and if the time is right to release the applicant from prison.
The orders of the Court are:
· That the applicant be sentenced to prison for the term of his natural life.
· That the applicant not be eligible for parole for a period of 25 years from 7 July 1976 being the day the applicant was taken into custody and charged with murder.
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