Khoury v Government Insurance Office (NSW)

[1988] HCA 62

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Toohey and Gaudron JJ.

CHESTER v. THE QUEEN

(1988) 165 CLR 611

6 December 1988

Criminal Law (W.A.)

Criminal Law (W.A.)—Indictable offences—Sentence—Detention during Governor's pleasure on expiration of sentence—Power of Court to direct—Principles—Criminal Code (W.A.), ss. 661, 662(a)—Mental Health Act 1962 (W.A.), s. 29(1)—Offenders Probation and Parole Act 1963 (W.A.),s. 40c(1)(b).

Decision

MASON C.J., BRENNAN, DEANE, TOOHEY AND GAUDRON JJ. This application for special leave to appeal relates to a direction given by the sentencing judge (Smith J.) under s.662(a) of the Criminal Code (W.A.) that the applicant, on the expiration of the finite term of imprisonment to which he was sentenced, be detained during the Governor's pleasure. The circumstances giving rise to the application may be stated shortly.

2. On 4 September 1988 the applicant pleaded guilty to two counts in an indictment. The two counts were:
1. That on 9 May 1987 at Osborne Park the applicant

unlawfully drove a Suzuki motor vehicle without the consent of the owner or person in charge thereof; and

2. That on 11 May 1987 at Innaloo the applicant stole from Jacinta Michelle O'Connor with threats of actual violence the sum of $19,000 in money, the property of the National Australia Bank Limited, and that at the time the applicant was armed with a dangerous weapon, namely a knife.

Smith J., after hearing a plea in mitigation by counsel for the applicant, called for a pre-sentence report before passing sentence.

3. On 6 November 1987 Smith J., having considered the pre-sentence report and a psychiatric report attached to the pre-sentence report, sentenced the applicant to six months' imprisonment on the first count and four years' imprisonment cumulative on the second count. His Honour also directed that the applicant be detained during the Governor's pleasure in prison at the expiration of the term of imprisonment.

4. The Crown's version of the facts, not disputed by the applicant, as recounted by Smith J., was that on 9 May the applicant went to Premier Motors in Osborne Park where he removed an ignition key from a Suzuki wagon parked in a yard enclosed by a chain-type fence. Later that day, after trade at the premises ceased, the applicant cut the chains around the yard with bolt cutters, entered and removed the vehicle. On 11 May, the applicant drove that vehicle to the National Australia Bank at Scarborough Beach Road, Innaloo. He then disguised himself by placing plaster and bandages over his face and entered the bank where he threatened the staff and customers with a knife. He demanded money and was given $19,000. He thanked the staff for their assistance, wished them a nice day and drove away in the Suzuki.

5. The applicant co-operated with the police after his arrest; $11,325 of the stolen money was recovered. The applicant informed the police that he carried out the robbery in order to provide bail money for a very close friend, Hannah, whose bail on a similar charge had been set at $10,000. The applicant had arranged with Hannah's father that, if the father provided one-half of the bail money, then the applicant would provide the other half.

6. Smith J. referred to the applicant's "not inconsiderable criminal record", extending back some seventeen years. It included convictions in 1976 for causing an explosion and injury to property, and attempting to cause an explosion and injury to property when he attempted to blow up the woodchip loading terminal at Bunbury. His motive was to prevent the establishment of the woodchip industry in the State. A sentence of seven years, with a minimum term of three and one-half years, was imposed in respect of these offences. He was released on parole. Other convictions related mainly to the use of cannabis.

7. The pre-sentence report asserted that the applicant expressed no remorse for his offences, though he expressed regret for the psychological effect and worry caused to bank employees. The accompanying psychiatric report by Dr Booth noted:
"He is reported to hear voices, to believe that he
is God's Avenger and to believe in fasting up to 16 days at a time, at times chaining himself to a tree in the bush to better enable God to enter him. Moreover, he attempts to convert his wife and family through violent means." Dr Booth went on to say that the applicant was "quite insightless as to the illogicality" of his actions in committing the offences in question and that his thought processes demonstrated "formal thought disorder". These characteristics, together with the applicant's behaviour, led the psychiatrist to conclude that the applicant was suffering from "chronic paranoid schizophrenia".

8. Smith J. said:

"Viewed objectively, your actions indicate

that again, as in 1976, you have taken the law into your own hands. Notwithstanding the deliberate nature of your actions and the motives for them, I was minded, having regard to your good performance on parole before, to impose a sentence which contained a parole element; that is to say to fix a minimum term. 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 662(a) 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."

9. The Court of Criminal Appeal by majority (Wallace and Pidgeon JJ.; Burt C.J. dissenting) dismissed the applicant's appeal against sentence. There was additional psychiatric evidence before the Court of Criminal Appeal. Although the applicant was invited by Smith J. to obtain a second opinion and declined to do so at that stage, on 11 November 1987 he asked to see Dr Rollo, the psychiatric consultant to the Prisons Department, who had some knowledge of the applicant dating back to 1969. At first Dr Rollo did not agree with the diagnosis of chronic paranoid schizophrenia. He inclined to the view that the applicant was suffering from a mixed personality disorder. However, the day after his first report, Dr Rollo, on learning of the applicant's religious beliefs, doubted that he would question the original diagnosis. Subsequently, on 29 February 1988 Dr Rollo reported that, notwithstanding these religious beliefs, he did not consider the applicant to be mentally ill to such a degree as to require an indeterminate sentence. Dr Rollo concluded:
"He appears to be one of a considerable number of
people who are influenced by religious writings such as the sample I have submitted. One may think such people credulous or that the beliefs they develop reflect their emotional needs but there is less reason now to regard their beliefs as evidence of mental illness."

10. Wallace J. concluded that Smith J. did not err in applying s.662(a). Wallace J. said:
"Clearly the applicant is more than odd and unless
prepared to accept counselling and possibly medication, dangerous. Nor do I think that position changes when regard is had to Dr. Rollo's evidence notwithstanding the opinion held that the applicant is not a paranoid schizophrenic. Clearly he can be violent and in so doing act illogically."

His Honour went on to state that, if Smith J. erred, it would be necessary to re-sentence the applicant so that he would have to face the possibility of a term of imprisonment between six and one-half and eight and one-half years, with a minimum term which would exceed the period of the indeterminate sentence if the applicant were to apply himself and qualify for early release.

11. Pidgeon J. considered that there was material before the sentencing judge to indicate that the applicant might commit further offences of a serious nature. His Honour stated that the offences already committed by the applicant constituted a danger to the public and that the expert reports "indicate a mental condition that might cause further offending but might be moderated with time".

12. On the other hand, Burt C.J. considered that the material before the sentencing judge did not sustain an indeterminate sentence and that, in the circumstances, a finite sentence of six years should be imposed, with a minimum term of three years. His Honour adhered to the view which he had expressed in Tunaj v. The Queen (1984) WAR 48, at p 51:
"that an order should be made under s 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". According to his Honour, unless the release of an offender at the expiration of a custodial sentence, which is proportionate to the offence, will "expose the community to the real likelihood of violent harm" or sexual offences, an order for his indefinite detention should not be made. So, the mere probability that an offender will offend again is not enough to sustain an order for indeterminate detention.

13. Turning to the evidence, the Chief Justice concluded that it was not enough to find that the applicant suffered from chronic paranoid schizophrenia. The critical question was whether the applicant constituted a constant threat to the community and what was the nature of that threat, a matter to be assessed in light of the applicant's antecedents. Although his record revealed two serious crimes, it did not sustain the prognosis that upon his release there would be such a likelihood of his committing an offence of such a kind that it could be said that he would "constitute a constant threat to the community".

14. The applicant's case for special leave to appeal rests very largely on the ground that the division of opinion in the Court of Criminal Appeal reveals a difference of opinion as to the principles governing the operation of s.662(a) or at least a need for an authoritative statement concerning the circumstances and conditions under which indeterminate detention under s.662 may be ordered.

15. Section 662 provides:

"When any person is convicted of any

indictable offence, (whether such person has been previously convicted of any indictable offence or not), the court before which such person is convicted may, if it thinks fit, having regard to the antecedents, character, age, health, or mental condition of the person convicted, the nature of the offence or any special circumstances of the case

(a) direct that on the expiration of the term of imprisonment then imposed upon him he be detained during the Governor's pleasure; or,

(b) without imposing any term of imprisonment upon him sentence him to be detained during the Governor's pleasure."

Detention during the Governor's pleasure in a prison is a punishment under the Code: s.18.

16. Section 662 needs to be read with the relevant provisions of the Offenders Probation and Parole Act 1963 (W.A.). Section 40C of that Act, so far as it is material, provides:

"(1) An order in writing under this subsection may direct that

... (b) a prisoner who is being detained otherwise than as an habitual criminal in a prison during the Governor's pleasure pursuant to a direction of a court under section 662(a) ...

be released from prison on parole at the time determined under the order and the prisoner shall be released accordingly.

(2) An order under subsection (1) may be made - (a) by the Board in its discretion, in the case of detention pursuant to a direction or sentence given or imposed before the commencement date; or

(b) by the Governor following the furnishing of a report by the Board under section 34(2)(b) or (d) or (3), in the case of detention pursuant to a direction or sentence given or imposed on or after the commencement date.

... (4) The time of release on parole under an

order under subsection (1)(b) or (c) shall be after the prisoner has been detained pursuant to the direction or sentence for any period. ..."

As the commencement date referred to in the section was 15 June 1988, the direction in the present case was given before that date.

17. Although s.40C(2)(b) has no application to the present case, we should refer to the provisions of s.34(2)(b) and (d) and (3). Section 34(2)(b) requires the Board to furnish a written report to the Minister with respect to a prisoner whenever so requested in writing by the Minister. Section 34(2)(d) requires the Board to furnish such a written report with respect to a prisoner detained under s.662(a):
(1) on or as soon as practicable after the expiration

of one year from the commencement of the detention; and

(2) thereafter as soon as practicable after each period of one year.

18. The Solicitor-General, during the course of his argument, suggested that, when it was initially introduced, s.662 was intended to serve a purpose in contributing to the reform or improvement of a person who had a propensity to commit serious crimes. Why indeterminate detention would bring about reform or improvement of such a person was not satisfactorily explained. Conceding that the section serves no such purpose now, the Solicitor-General submitted that the object of the provision is also to protect the public from persons who have a propensity to commit serious crimes.

19. Plainly enough, the extraordinary power which the section confers on a court is to be exercised with the object of protecting the public from the commission of further crimes by the person directed or sentenced to be detained for an indeterminate period. But it is not so plain that the object is to protect the public from persons who have a propensity to commit serious, as distinct from violent, crimes. The section makes no reference to such a propensity or indeed to crimes of any kind. The section confers on the sentencing judge a large discretionary power without specifying a precise criterion according to which the power is to be exercised. Section 662 is not intended to protect the community from the crimes which would be committed by habitual criminals: s.661 is the provision enacted for that purpose. Nor should the power conferred by s.662 be contemplated when in due course it may be more appropriate that there be a justice's order under the Mental Health Act 1962 (W.A.) for the reception into and detention in an approved hospital of a person suffering from mental disorder who should be admitted to an approved hospital for treatment in the interest of the public: see s.29(1) and Div.IV of Pt 4 of the Mental Health Act.

20. The notion that s.662 was designed for the protection of the public from persons with a propensity to commit serious crimes derives no doubt from the fact that the exercise of the power is conditioned on conviction for an indictable offence and from the requirement that the court will have regard to the offender's antecedents and the characteristics and circumstances mentioned in the section. However, these elements are a slender foundation for the proposition that the court should exercise the power to direct detention of a person who has a propensity to commit serious crimes not amounting to crimes of violence. After all it is now firmly established that our common law does not sanction preventive detention. The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender: Veen v. The Queen (No. 1) (1979) 143 CLR 458, at pp 467, 468, 482-483, 495; Walden v. Hensler (1987) 163 CLR 561; Veen v. The Queen (No. 2) (1988) 164 CLR 465, at pp 472-474, 485-486. In the light of this background of settled fundamental legal principle, the power to direct or sentence to detention contained in s.662 should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm. The extension of a sentence of imprisonment which would violate the principle of proportionality can scarcely be justified on the ground that it is necessary to protect society from crime which is serious but non-violent. Larceny, obtaining money by false pretences and the infliction of malicious damage to property may be serious crimes from which society needs to be protected. But the indeterminate detention of offenders who have a propensity to commit crimes of this kind involving financial loss and property damage is a disproportionate response to that need for protection.

21. The exercise of the power should be reserved for those very exceptional cases which do not attract the operation of s.661 of the Code or for which s.29(1) of the Mental Health Act is unlikely to be appropriate and in which the sentencing judge is satisfied by acceptable evidence that the convicted person is, by reason of his antecedents, character, age, health or mental condition, the nature of the offence or any special circumstances, so likely to commit further crimes of violence (including sexual offences) that he constitutes a constant danger to the community. The stark and extraordinary nature of punishment by way of indeterminate detention, the term of which is terminable by executive, not by judicial, decision, requires that the sentencing judge be clearly satisfied by cogent evidence that the convicted person is a constant danger to the community in the sense already explained. What we have said accords with the view expressed by Burt C.J. in the Court of Criminal Appeal in the present case.

22. The Solicitor-General, in support of a submission that the case presents no point of general principle, argued that there was no difference of opinion between the majority and Burt C.J. on the interpretation and application of s.662. The Solicitor-General pointed out that the three judgments in the present case are consistent with what Burt C.J. had earlier said (with Pidgeon and Rowland JJ. concurring) in Tunaj v. The Queen. There his Honour observed, at p 51, in a passage part of which we have already cited:
"In my opinion, the enactment of the Probation and
Parole Act now requires one to say that an order should be made under s 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 and applied only in such cases." Burt C.J. did not then restrict the exercise of the power to cases in which there is a danger of physical harm to the community arising from the commission of crimes of violence, though his comments were entirely consistent with such a restriction. In the instant case Wallace and Pidgeon JJ. repeated the Tunaj formulation, without expressly limiting the exercise of the power in the same way as did the Chief Justice. The difference is fundamental. In fact the significance of this difference is emphasized by the Solicitor-General's submission that we should endorse the construction favoured by the majority and by the Court of Criminal Appeal in Tunaj in preference to that now stated by Burt C.J.

23. Once it is established that the exercise of the power is restricted in conformity with what we have already said, it is evident that this is not a case in which a direction for indeterminate detention should have been given. The applicant is aged thirty-nine. He has a significant criminal record dating back to a conviction in 1967 for disorderly conduct when he was eighteen. Between 1967 and 22 October 1976 he was convicted of a number of minor offences, of which two were convictions for being in possession of cannabis. One of the convictions, in February 1969, was of attempted false pretences, for which he was placed on probation for five years. He was supervised for four years, the order being discharged in February 1973. He appears then to have settled down until the offence in 1976 of attempting to blow up the woodchip terminal at Bunbury. After being released on parole in 1980, he committed no offence until May 1987. This record does not establish that the applicant poses a constant danger of violent injury to the community. The only convictions for offences involving any suggestion of potential physical harm to persons were the incident concerning the terminal at Bunbury and the armed robbery at Innaloo in May 1987. No one was injured on either occasion.

24. The expert evidence carried the case no further. At its highest it indicated that the applicant was suffering from chronic paranoid schizophrenia, a condition which would persist if it remained untreated. But Dr Rollo, in his first report of 28 January 1988, disputed that the applicant suffered from this condition or, indeed, from "thought disorder" or "anything conspicuously unusual in his demeanour and attitude", though conceding that the applicant suffered from a "personality disorder". After qualifying this opinion on the following day and stating that the applicant's religious beliefs included "a bizarre quality with a paranoid flavour", Dr Rollo later confirmed his initial opinion without any qualification.

25. However, if one assumes that the sentencing judge was correct in regarding the materials before him, which did not include Dr Rollo's opinion, as evidencing that the applicant was suffering from chronic paranoid schizophrenia, the existence of that condition did not in itself reveal that he was a danger to society. Something more was required to justify that conclusion and it is not to be found in the materials before the courts below.

26. It follows that the direction that the applicant be detained under s.662(a) cannot be sustained. That conclusion may well require, as Burt C.J. suggested, that the finite term of imprisonment and the minimum term be increased. However, that is a matter which should be considered by the Court of Criminal Appeal (see s.689(3) of the Code) rather than by this Court.

27. For the foregoing reasons we would grant the extension of time in which to apply for special leave to appeal, grant special leave to appeal, allow the appeal, set aside the direction under s.662(a) of the Code and remit the matter to the Court of Criminal Appeal to determine whether the finite term of imprisonment and the minimum term should be increased and, if so, to what extent.

Orders

Application for an extension of time in which to apply for special leave to appeal granted.

Application for special leave to appeal granted.

Appeal allowed.

Set aside the order of the Court of Criminal Appeal dismissing the the appeal against the direction by Smith J. under s. 662(a) of the Criminal Code (W.A.) and in lieu thereof:
(1) allow the appeal to the Court of Criminal Appeal;

and

(2) set aside the direction under s.662(a).

Remit the matter to the Court of Criminal Appeal to determine whether the finite term of imprisonment and the minimum term should be increased and, if so, to what extent.