Pendleton v The Queen - [2002] WASCA 4

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: PENDLETON -v- THE QUEEN [2002] WASCA 4

CORAM: KENNEDY J
WALLWORK J
PIDGEON AUJ

HEARD: 22 JUNE & 12 DECEMBER 2001

DELIVERED : 24 JANUARY 2002

FILE NO/S: CCA 34 of 2001

BETWEEN: MARK PENDLETON
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Sexual offences against young girls - Sexual penetration, indecent dealing, procuring children to do indecent acts, showing offensive material to children, indecent recording of children - Preprimary school teacher - Offending over four years - Sentenced to 12 years' imprisonment without eligibility for parole, to be followed by indefinite sentence - Indefinite sentence quashed - Order for eligibility for parole

Legislation:

Sentencing Act 1995 (WA), s 89(2), s 98

Result:

Appeal allowed
Indefinite sentence quashed - Order for parole granted

Category: A

Representation:

Counsel:

Applicant: Mr D C Rice
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Griffiths Rice & Co
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Chester v The Queen (1988) 165 CLR 611
Lowndes v The Queen (1999) 195 CLR 665
McGarry v The Queen (2001) 75 ALJR 1682
McGarry v The Queen [1999] WASCA 276
R v Moffatt [1998] 2 VR 229
Thompson v The Queen (1999) 73 ALJR 1319

Case(s) also cited:

Garlett v The Queen [2000] WASCA 72
Thompson v The Queen (1992) 8 WAR 387
Tunaj v The Queen [1984] WAR 48

KENNEDY J: The applicant was presented in the District Court on an indictment containing 6 counts of possessing child pornography, 1 count of showing offensive material to a child under the age of 13 years, 20 counts of indecent dealing with a child under the age of 13 years, 18 counts of procuring a child under the age of 13 years to do an indecent act, 9 counts of sexual penetration of a child under the age of 13 years and 76 counts of indecent recording of a child under the age of 13 years. The applicant pleaded guilty to each of these charges. Pursuant to s 32 of the Sentencing Act 1995 (WA), a complaint pending in the Court of Petty Sessions charging the applicant with having, on 24 February 2000, had in his possession 37 pairs of young girls' knickers, recently suspected of having been stolen or unlawfully obtained, was referred to the District Court. The applicant also pleaded guilty to that charge, which was then dealt with together with the other charges.
The applicant was at the time of the offences a pre‑primary school teacher. The victims were 11 young girls who were said to be aged four or five at the relevant times. The offences were alleged to have been committed between 1 January 1995 and 24 February 2000, during which period he had taught at three separate schools.
The learned sentencing Judge was told that, on 24 February 2000, detectives from the Child Abuse Unit of the Police Service went to a primary school in the outer metropolitan area, where they met the applicant. They told him they had a search warrant to search his house and requested him to accompany them there. The applicant asked whether he was under arrest and, when told that he was not, he said he would drive himself home and meet the detectives there. The police then drove straight to the applicant's house. The applicant arrived some 10 minutes later. It was subsequently ascertained that he had detoured to a property not very far from his own house where he had hidden a box of incriminating material on a property belonging to a local family. The owners of that property observed his actions and they informed the police. The box was subsequently recovered and was found to contain a large number of items which subsequently formed the foundation for the bulk of the charges.
On searching the applicant's home, he was found to be in possession of child pornography, which included a handwritten pornographic text, a quantity of pornographic computer images, a quantity of pornographic photographs, a magazine containing child pornography and some video tapes of young children. The charges relating to the possession of child pornography were brought under the Censorship Act 1996 (WA), s 60(4), whilst the remaining offences were variously charged under s 204A(2), s 320(2), s 320(4), s 320(5) and s 320(6) of the Criminal Code.
Counts 1 to 6 charged offences of possession of child pornography. Count 1 related to a handwritten text of a pornographic story involving children aged seven and nine. Count 2 related to a file containing a number of pornographic images of children, which appeared to be computer imaged files, 11 in number. Count 3 related to a number of scrapbooks, which contained a large quantity of pornographic photographs, for the most part being photographs of adults, but also containing three photographs of young girls. Count 4 related to a magazine, apparently Dutch in origin, containing photographs of young women, but which also contained a lengthy story involving child pornography. Count 5 related to a quantity of pornographic sketches and woodcuts of children, or pornographic depictions of children. Count 6 related to another handwritten text of a pornographic story involving a child. The maximum penalty in relation to each of these offences is 5 years' imprisonment.
Counts 7 to 59 related to the one complainant, S. At the relevant times, she was either a pre-primary or a Grade 1 pupil. These counts arose out of a videotape found in the box which the applicant had endeavoured to hide near his home. The videotape shows two scenes of the applicant molesting S in the classroom during what was apparently a recess period. Count 7 related to the applicant giving the child what is obviously a pornographic magazine. Counts 8 to 14 involved the applicant having the child on his lap and indecently dealing with her on four occasions by touching her vagina with his finger, on two occasions by penetrating her anus with his finger, and on one occasion by penetrating her vagina with his finger. Counts 15 to 17 involved indecent dealing, the applicant having procured the child to touch and to kiss his exposed penis. Counts 18 to 20 also involved indecent dealing, the applicant having kissed the girl's vagina and touched it with his finger, and having touched her anus with his finger. Counts 21 to 31 related to the applicant's touching the girl's vagina with his finger (2 counts), penetrating her anus with his finger (2 counts), penetrating her vagina with his finger (4 counts), and rubbing her vagina with his finger (3 counts). Count 32 related to the indecent recording of the applicant's first molestation of S and count 33 related to the indecent recording of his second molestation of S. Counts 34 to 59 inclusive also involved S, relating to photographs of her taken by the applicant in 1997 and 1998, almost all of which were labelled by him with the child's first name, the year and the child's age. These counts related to the taking of the photographs and the procuring of the child to do indecent acts for the purpose of being photographed. The acts include the applicant's touching S's vagina, procuring her to touch and to hold his penis and procuring her to sit on his lap, touching his exposed penis.
Counts 60 and 61 related to the indecent recording of the complainant P. Counts 62 and 63 related to the indecent recording of the complainant R. Counts 64 to 72 related to the indecent recording of the complainant I. Counts 73 and 74 related to the indecent recording of the complainant E. Counts 75 to 81 related to the indecent recording of the complainant L. Counts 82 to 87 related to the indecent recording of the complainant T. Counts 88 and 89 related to the indecent recording of the complainant C. Counts 90 to 113 related to the indecent recording of the complainant K. Counts 114 to 119 related to the indecent recording of the complainant X. Count 120 related to the indecent recording of the complainant A. Counts 121 to 130 related to the indecent recording of the complainant J. The s 32 notice related to the finding of 33 pairs of young girls' knickers, which appeared to be well worn, located in a shoebox on a dressing table in the applicant's bedroom. Four other pairs were located in other parts of the room. A notepad found in a shoebox contained handwritten entries detailing female names and ages ranging from 4 to 15 years. Under each entry of a name is a description of a particular pair of knickers.
Some of the photographs the subject of the charges are highly explicit. Some were taken in the presence of another child. The degree of indecency, judged by the photographs and the video footage, varies from relatively low to very high.
As explained by the Crown prosecutor, most of the complainants, fortunately, were innocent as to the nature of the photographs being taken of them and as to the reasons for their being taken. Many of the photographs appeared to be opportunistic in nature. Nevertheless, it is not possible to say what the impact of the applicant's conduct upon his victims might be in the future. At least four of the children had to be subjected to extensive questioning by the police prior to the applicant's being charged.
The Crown prosecutor also tendered a project book, exhibit 9, which had been seized from the applicant's house, and which purports to contain a record of the applicant's sexual conduct both with the present complainants, and with others, over a lengthy period of time. The sexual behaviour described is detailed, extensive and perverted. Some of the persons apparently identified in the document may be fictitious, but there is no reason to doubt that the details recorded as to the present complainants are accurate.
The applicant was spoken to by the police on the day of his arrest. As he was entitled to do, he consistently refused to be interviewed formally in relation to the offence charged, and he initially made no admissions in relation to them. He elected to have a preliminary hearing, the major contest in which appears to have been whether penetration of the child S had taken place. Shortly after the preliminary hearing had commenced, however, the applicant's counsel informed the Crown prosecutor that his client's instructions were that he would not contest any of the charges then laid against him.
The applicant, at the time of his sentencing, was aged 41. He had been married twice. His first marriage ended in divorce after 18 months. His second marriage, from which there were two sons, aged 12 and 14 at the time of sentencing, ended in separation in 1993, after eight or nine years. The 12 year old boy lives with the applicant's second wife. The applicant's elder son had been living with him prior to his arrest, but at the time of sentencing the boy was living in a foster home.
The applicant left school in 1975 at the age of 16. He served in the Army for some 18 years. He was subsequently employed by K‑Mart Australia for eight years, from 1976 to 1984. He then worked in a backgammon shop for about two years, before being employed by Woolworths Australia for seven years, from 1986 to 1993. Whilst employed by Woolworths Australia he was convicted of stealing as a servant, and he was placed on 12 months' probation. He undertook a teacher training course between 1993 and 1995 and obtained a university degree. He joined the Education Department of Western Australia and worked at various pre‑schools in the country, not far from Perth. The present offences were committed after he had separated from his second wife, at which time, it was claimed, he was going through a lonely part of his life. He denied commencing work as a pre‑school teacher merely to obtain the benefit of working closely with children, but the fact is that his offending extended over a very large proportion of the time he was working as a teacher.
His Honour had before him a psychological report from the Sex Offenders Treatment Unit at Prison Services. After referring to the treatment issues in the report, which described the applicant's precocious sexual activity with young girls while immature, compounded by his own sexual abuse in childhood by an adult female and the longstanding and all‑consuming nature of the applicant's interest in a range of deviant sexual behaviour, the learned trial Judge quoted the psychologist's comments under the headings of "Risk of Re-Offence" and "Summary". They read as follows:
"Risk of Re‑Offence
Mr Pendleton does not have previous sexual convictions, and has less than four criminal convictions of any kind [he had in fact nine convictions for minor offences]. In the current situation he offended against three or more victims, and the relationship was extrafamilial. These factors on their own suggest an initial rating of a medium low risk of re‑offending in a similar way. When clinical judgment factors are taken into account the risk of a re‑offence is elevated to high. These factors include his status as a fixated paedophile with a chronic interest in pre‑pubescent females, apparently reinforced by a periodic offending which escaped detection; the reported existence of sexual dysfunction when attempting to engage in sexual activity with adult females; the preferential nature of the offending behaviour; his history of sexual abuse and precocious introduction to sexual activity; his position of responsibility for the victims; the presence of sexual fetishes and addictions involving very young girls; and the absence of evidence which would indicate that he can manage and control his deviant interests and behaviour.
Even if the evidence indicative of lifelong paedophilic activity (Exhibit 9), is ruled out, the remaining clinical variables in combination lead to a prediction of a high risk of reoffending.
Summary
It is concluded that due to childhood, adolescent and adult sexual experiences, including abuse as a child by an adult female, he is a fixated paedophile, preoccupied with procuring sexual stimuli and gratification associated with prepubescent girls, and manifesting a sexual addiction, including a variety of fetishes. His deviant sexual orientation and arousal have been reinforced by the use of pornography from the Internet and other sources, as well as indecent photographic and video images taken by himself, which have served as masturbatory stimuli. He is considered suitable for participation in a Sex Offender programme conducted by the Ministry of Justice. However, the chronic existence of sexual arousal in relation to very young girls, reinforced via masturbation and offending behaviour, is likely to require additional therapeutic input on an individual basis, if it is to be reduced. Without treatment he is likely to constitute a high risk of reoffending in a similar manner given access to potential victims."
Having reviewed the material placed before him by the Crown, the learned sentencing Judge indicated that it was obvious to him that the applicant's collection and assembling of the objectionable material had occurred over a period of years. Not only had he collected and assembled pornographic materials, but he had engaged over a period of time in sexual activity of a degrading and corrupting nature with a significant number of very young girls. Some of the offences had occurred on school premises, but some had also been committed in the victims' homes. As his Honour pointed out, the applicant had befriended several of the children and their families, thereby aggravating his grave breach of trust as a teacher. When the applicant was challenged by the mother of one of the complainants, he had vehemently denied any wrongdoing, and the mother had subsequently wrongly rebuked her daughter for not telling the truth and had apologised to the applicant for doubting him. The totality of the evidence, his Honour said, suggested a level of brazen degradation almost beyond belief. The applicant's behaviour towards one of the children has had a demonstrably corrupting effect upon her, from the consequences of which it may take her a long time to recover. The applicant's conduct has also directly impacted on the parents of the victims. Although the applicant had no prior criminal record of offences of a sexual nature, the items seized from his house clearly indicated that his conduct the subject of the charges was neither isolated nor out of character. Nevertheless, the applicant could only be sentenced for the offences of which he had been convicted before the learned sentencing Judge.
The applicant's counsel asserted in mitigation that the applicant was truly sorry and remorseful for his conduct; but, as his Honour observed, this was of little comfort to the victims. Nor did his relative lack of prior convictions or his loss of contact with his own family as a result of his offences provide much in the way of mitigation. His plea of guilty was inevitable, although some credit had to be given for it. His Honour formed the view that, by declining to speak to the police, and by the answers given by him to the psychologist, the applicant had attempted to hide, or he had failed to address, the full implications of his behaviour.
His Honour proceeded to sentence the applicant to custodial terms as follows:
On the six counts of possessing pornography and the single count of showing offensive material to a child under the age of 16 - 1 year's imprisonment on each, to be served concurrently.
On the 20 counts of indecent dealing with children under the age of 13 and on the 18 counts of procuring children under the age of 13 to do indecent acts - 4 years' imprisonment on each, to be served concurrently, but cumulatively upon the previous sentences.
On the nine counts of sexual penetration of a child under the age of 13 - 5 years' imprisonment on each, to be served concurrently, but cumulatively upon the previous sentences.
On the 76 counts of indecently recording children under the age of 13, and 18 charges of procuring a child under the age of 13 to do an indecent act - 2 years' imprisonment on each, to be served concurrently, but cumulatively upon the previous sentences.
As to the offence referred to the District Court pursuant to section 32 of the Sentencing Act - 1 year's imprisonment to be served concurrently with the first six sentences.
His Honour declined to grant the applicant eligibility for parole in relation to the sentences he imposed, and he then ordered that the applicant serve an additional indefinite sentence, in the latter case indicating that the number of his victims and the length of time over which his offending had continued clearly showed the exceptional seriousness of his offences and a high risk of his committing other offences.
Pursuant to s 688(1a)(a) of the Criminal Code, the applicant has appealed against the sentence of indefinite imprisonment and he seeks leave to appeal against the sentencing Judge's refusal to make an order for his eligibility for parole. He has not sought to appeal against the fixed terms of imprisonment.
Section 98 of the Sentencing Act, which empowers a superior court to order an offender to be imprisoned indefinitely, provides as follows:
"98(1)If a superior court -
(a)sentences an offender for an indictable offence to a term of imprisonment;
(b)does not suspend that imprisonment; and
(c)does not make a parole eligibility order under Part 13 in respect of that term,
it may in addition to imposing the term of imprisonment for the offence (the "nominal sentence"), order the offender to be imprisoned indefinitely.
(2)Indefinite imprisonment must not be ordered unless the court is satisfied on the balance of probabilities that when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society, or a part of it, because of one or more of these factors:
(a)the exceptional seriousness of the offence;
(b)the risk that the offender will commit other indictable offences;
(c)the character of the offender and in particular -
(i)any psychological, psychiatric or medical condition affecting the offender;
(ii)the number and seriousness of other offences of which the offender has been convicted;
(d)any other exceptional circumstances.
(3)In deciding whether an offender is a danger to society, or a part of it, the court -
(a)is not bound by section 6 but is bound by any guidelines on the imposition of indefinite imprisonment in a guideline judgment given under section 143; and
(b)may have regard to such evidence as it thinks fit."

Section 6, which is referred to in s 98(3), sets out certain principles of sentencing. Those principles include the requirement that the sentence imposed on an offender must be commensurate with the seriousness of the offence. There exists no relevant guideline judgment.
Section 89(2) of the Sentencing Act sets out the factors to all or any of which a court may have regard in determining whether it is appropriate to make a parole eligibility order. They are as follows:
"(a)the seriousness and nature of the offence;
(b)the circumstances of the commission of the offence;
(c)the offender's antecedents;
(d)circumstances relevant to the offender or which, in the court's opinion might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;
(e)any other reason the court decides is relevant."
The High Court considered the former s 662 of the Criminal Code, which was the precursor of 98 of the Sentencing Act, in Chester v The Queen (1988) 165 CLR 611. In their joint judgment, Mason CJ, Brennan, Deane, Toohey and Gaudron JJ, at 617, referred to the power to impose an indefinite sentence as being an "extraordinary power", "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". They added that it was not so plain that the object was to protect the public from persons who have a propensity to commit serious, as distinct from violent, crimes. It conferred on the sentencing Judge, they observed, a large discretionary power without specifying a precise criterion according to which the power was to be exercised. Having regard to s 661, which then dealt with habitual criminals, it was not intended to protect the community from the crimes which would be committed by such criminals. Their Honours referred at 618 to its then being firmly established that the common law did not sanction preventive detention and that "[t]he 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." They concluded, at 618 ‑ 619:
"The exercise of the power [conferred by s 662] 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."
Section 661 of the Code was repealed with the coming into operation of the Sentencing Act, and habitual criminals are no longer the subject of separate treatment. Indefinite imprisonment can now only be imposed upon an habitual offender if he or she falls within the scope of s 98 of the Sentencing Act. Furthermore, s 98 has extended the ambit of the former s 662 and has settled the requisite standard of proof as being on the balance of probabilities, although, in this connection, having regard to the gravity of the consequences flowing from an order for indefinite imprisonment, the well known words of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, at 363 ‑ 364, should be borne in mind. The test, which is directed to the time at which the prisoner would otherwise be released from custody in respect of the nominal sentence, is that he or she would be "a danger" to society, or a part of it, by reason of one or more of the factors specified in s 98(2). The principle of proportionality, in a departure from Chester's case (supra) at 618, is said no longer to bind the court. The test of the prisoner being "so likely to commit further crimes of violence (including sexual offences) that he constitutes a constant danger to the community", as laid down in Chester's case, also appears to have been somewhat diminished in scope. The terms of the present section are also to be contrasted with those of s 18B of the Sentencing Act 1991 (Vict), which was considered by the Victorian Court of Appeal in R v Moffatt [1998] 2 VR 229.
In the more recent decision of the High Court in Lowndes v The Queen (1999) 195 CLR 665, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, in a joint judgment, gave consideration to the provisions of s 89 (which deals with when an offender may be made eligible for parole) and s 98 of the Sentencing Act. At 670, their Honours said:
"The issues which arise under ss 89 and 98 respectively are in a number of respects different, and the requirements of each section, when it arises for consideration, must be determined separately. Nevertheless, as in the present case, there may be a substantial degree of commonality between the facts which are relevant to the discretionary considerations which arise under s 89 and the facts which are relevant to the discretionary considerations which arise under s 98. In a case where the prosecution is inviting a court to make an order under s 98, it will, by hypothesis, be opposing the making of an order under s 89, and it may be relying upon substantially the same primary facts for each argument. Similarly, counsel for an offender who is pressing for a parole eligibility order, and resisting an order under s 98, will probably be addressing common considerations of primary fact, although their ultimate discretionary significance will need, in due course, to be related to the respective statutory provisions. Where such a contest occurs, the corollary of a decision that a parole eligibility order should be made is that an order under s 98 will not be made. Although the converse is not true, in that a refusal to make an order under s 89 will not necessarily be followed by a decision to make an order under s 98 and although, at the point of ultimate decision making, the first question that will arise is whether a parole eligibility order should be made, nevertheless it is not surprising that, as in the present case, the reasoning of a court might treat the two issues as closely related."
The Court went on to observe, at 671, that the effect of s 98(2) is that the condition of the exercise of the power is that the court is satisfied on the balance of probabilities that, at a future time, when the offender would otherwise be released, he or she would be a danger to society, or a part of society, because of one or more factors. Thus, the Court said, what is involved is a decision about a state of affairs that will exist at a time which may be several, perhaps many, years ahead. The relevant state of affairs is a form of danger. That will usually involve an evaluation of risk and, perhaps, of steps that may be taken to avoid or reduce the risk. The concept of danger to society, or a part of it, it was said, may also involve difficult questions of judgment.
The section was again considered in Thompson v The Queen (1999) 73 ALJR 1319. At 1322 ‑ 1323 [18], Kirby J observed:
"Where there was any possibility that an order of indefinite imprisonment might be made, it was essential that the procedures observed should be regular and scrupulously thorough and that the materials, including the pre-sentence reports, should be as adequate and complete as fairness to the prisoner required."
At 1323 [19], his Honour continued:
"As Hayne JA pointed out in Moffatt [supra], it is fundamental that the power to order indefinite imprisonment should be sparingly exercised and then only in clear cases. I would add that it is fundamental that it should only be exercised following the most careful hearing at which all relevant material is before the Judge or Judges responsible for making such an order. It is not something to be hurried. It is not a course to be dealt with on materials known to be incomplete or otherwise insufficient."
After judgment had been reserved in this matter, it came to our attention that the High Court was about to consider once again, in McGarry v The Queen [1999] WASCA 276, an appeal against the upholding of an order for indefinite imprisonment. In the circumstances, by arrangement with the parties, delivery of the judgment was deferred pending the publication of the High Court's decision. The reasons in McGarry v The Queen (2001) 75 ALJR 1682 were delivered on 24 October 2001, and on 12 December 2001 we heard further argument.
In their reasons, at [7], Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:
"[7]Section 98(1) [of the Sentencing Act 1995 (WA)] empowers a sentencing judge, if the relevant conditions are met, to 'order the offender to be imprisoned indefinitely' and to do so 'in addition to imposing the term of imprisonment for the offence'. An order for indefinite imprisonment is, then, a part of the sentence which is imposed (just as much as, in other cases, will be a parole eligibility order, or an order suspending the imprisonment). Further, and no less importantly, s 98(1) does not oblige a sentencing judge to make an order for indefinite imprisonment in every case in which the conditions specified in that sub‑section are met. Nor does s 98(1) oblige a sentencing judge to make such an order if satisfied of the matter specified in sub‑s (2), namely, that 'when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society, or a part of it'. Even if satisfied of that fact, a sentencing judge has a discretion in deciding whether or not to make an order for indefinite imprisonment."
Their Honours emphasised that the decision to make an order for indefinite imprisonment, and the decision fixing the nominal sentence form part of a single sentencing decision and it followed that if an appellate court concludes that the sentencing Judge's discretion miscarried in fixing the nominal term of imprisonment, the whole of the sentence imposed by the sentencing Judge, including the order for indefinite imprisonment, should be set aside and the appellate court would then be obliged itself to re‑sentence the offender - see s 689(3) of the Criminal Code(WA).
Having then considered McGarry's criminal history and a "specialist report" prepared in the Sex Offender Treatment Unit of the Ministry of Justice, the majority in the High Court concluded that, read as a whole, the report expressed opinions about the risk that the appellant presented at the time of the report. It acknowledged that there may be some medical means of reducing that risk, and that it was the appellant who had sought to explore that question. The author expressed no view about what effect such treatment might have.
Their Honours went on to say:
"[20]Identifying the meaning of 'a danger to society, or a part of it' is not without difficulty. A fundamental premise of the criminal law is that conduct is regarded as criminal for the very reason that its commission harms society, or some part of it. On that basis, any risk that an offender may commit some further indictable offence poses a danger to society, or some part of it; the extent of the 'danger' would depend only upon the likelihood of the offender reoffending.
[21]If, however, s 98 were concerned only with the risk of an offender reoffending, the inclusion of pars (a), (c) and (d) in sub‑s (2) was unnecessary. Their inclusion suggests that 'danger to society, or a part of it' means more than that there is a risk, even a significant risk, that an offender will reoffend.
[22]It must be noticed that each of the four paragraphs in sub‑s (2) (on which the conclusion that there is a relevant danger must be founded) has a different temporal aspect. Paragraph (a), with its reference to the 'exceptional seriousness' of the offence for which the offender is to be sentenced, looks to what the offender has already done. Paragraph (b), with its reference to the risk of commission of other offences, looks to the future. Paragraph (c), with its reference to the 'character of the offender', requires some assessment of the character of the offender as it is revealed at the time of sentencing. Finally, par (d), with its reference to 'any other exceptional circumstances', may permit consideration of a wide variety of matters.
[23]The breadth of the matters upon which a conclusion of danger to society (or a part of it) may be based suggests that what is required is more than a bare conclusion that it is probable that the offender will commit some indictable offence in the future. That suggestion is reinforced by the use of the word 'exceptional' in the phrases 'exceptional seriousness of the offence' and 'exceptional circumstances'. More than the probability of further offending must be shown. Read as a whole, and giving due weight to the repeated reference to 'exceptional', the sub‑section requires attention to whether, were the offender to be released at the end of the nominal sentence, the offender would engage in conduct, the consequences of the commission of which would properly be called 'grave' or 'serious' for society as a whole, or for some part of it. Then, and only then, could it be concluded that the offender would be a 'danger to society, or a part of it.' "
Their Honours, having considered the provisions of s 98(3) of the Sentencing Act, went on to indicate that questions of proportionality fall to be considered in the fixing of the nominal sentence but do not fall to be considered in deciding whether to make an order for indefinite imprisonment. They continued:
"[25]Nevertheless, it is necessary to recognise that considerations of public protection are relevant both in fixing the nominal sentence and in deciding whether to make an order for indefinite imprisonment …"
Their Honours accepted that a conclusion that the appellant was a danger could be based only upon his prior criminal history and the written report. They went on to say:
[27]The report said that the appellant 'is considered to present a high risk of reoffending in a sexual manner' (emphasis added). That was a statement about the risk he presented at the time of the report, not at the time that must be considered under s 98(2): the end of the nominal sentence. … When it is recognised that the report raised the possibility of medical intervention, it indicated that the appellant would 'be re‑assessed … to determine what would be the most appropriate therapeutic options for him', but did not offer any opinion about whether such treatment would be effective, it is apparent that it provided no basis for predicting that, at the relevant time, the appellant would be a danger to society, or a part of it. The material did not permit a court to conclude that, more probably than not, two years after sentencing there was a risk that the appellant would engage in conduct, the consequences of which could properly be called grave or serious for society, or a part of it."
The consequence was that the order for the indefinite imprisonment of McGarry was quashed. Their Honours then went on to make some important observations concerning orders for indefinite imprisonment. Such an order is a decision that is not to be taken lightly or hastily, and it is a decision that should be founded on sufficient material. They emphasised that orders for indefinite imprisonment are not lightly to be made, and that an application for such an order should be treated with commensurate care and attention to detail.
Their Honours said:
"[30]If such an application is to be made, it should be supported by appropriate material. Although a pre‑sentence report obtained at the request of the court may provide some material which is relevant, it is not to be expected that a report of that kind will ordinarily suffice to found such an application. Section 98(3)(b) provides that a sentencing judge may have regard to such evidence as he or she thinks fit in deciding the question of danger. It is to be noticed, however, that the section refers to 'evidence'. It does not, in terms, permit a sentencing judge to be informed in whatever manner seems fit. It is, however, not necessary to decide whether, in this respect, the express provisions of the Sentencing Act are to be treated as modifying the general practice of receiving at least some material on sentence without requiring its admission or its formal proof. Because sentencing judges who are asked to make an order for indefinite imprisonment are required to make a prediction about future behaviour, there will usually be a very large amount of material that is relevant to that question. In that regard, it would be expected that the prosecution would place all available and relevant material at its disposal before the court. If it is contended that the offender has some psychiatric condition which predisposes him or her to reoffending, it would be expected that the prosecution would lead expert evidence about that matter. If reliance is placed upon the offender's past conduct, full details of that conduct, including all of the evidence that related to it, should be available to the sentencing judge. In this, and all other respects of the matter, it would be expected that the offender would have a proper opportunity to meet the prosecution's case."
And see also the reasons of Kirby J.
The learned sentencing Judge in this case approached his task with considerable care. Unfortunately, however, his task was completed some time before the decision of the High Court in McGarry v The Queen was delivered. In dealing with the risk of the applicant's reoffending, the writer of the psychological report in the present case did not distinguish sufficiently clearly between the risk of his reoffending at the time of his examination and the risk of his reoffending at the time he would have completed his nominal term of imprisonment and received treatment. Nor did his Honour draw any distinction between the two in discussing the psychological report, although the summary provided by the psychologist qualified the statement regarding the risk of reoffending which the applicant posed by concluding that, "[w]ithout treatment, he is likely to constitute a high risk of reoffending in a similar manner given access to potential victims" (emphasis supplied).
The learned sentencing Judge was conscious that the time for determining whether a prisoner would be at high risk of reoffending was the time when he would otherwise be released from custody. He was also conscious of the fact that, as he described it, the High Court had made it abundantly clear that an indefinite sentence should be confined to very exceptional cases, where the exercise of the power is demonstrably necessary. Although his Honour referred to the intensive individual therapy recommended in the clinical psychologist's report, however, he did not take into account the possible outcome of the applicant's participation in the Sex Offenders Treatment Programme and of the additional therapeutic input. He did not recognise that the psychologist's reference to the applicant being likely to constitute a high risk of reoffending in a similar manner, given access to a potential victim, was not expressed in absolute, but in conditional terms. He acknowledged that a character reference and the psychological assessment suggested that the applicant was willing, and perhaps even wishing, to undertake treatment. He continued:
"It may be suggested that if parole was to be made available to you … only if you undertook this and did so successfully, that is the best way to protect the community from you. It is not, however, a process which can only be undertaken if you are subject to parole eligibility. It may be taken into account by others in determining the length of any indeterminate sentence."

His Honour concluded his sentencing remarks as follows:
"I'm aware that the writer of the pre‑sentence report has pointed to your lack of an extensive record of prior convictions, your early guilty plea, your readiness to acknowledge harm that the offending has caused to the victims and their families, and your expressed interest in receiving treatment.
I must say that I have grave reservations, as I have I suppose already said or implied, about the weight to be placed on the plea, your readiness to acknowledge your offending and your amenability to treatment. The psychological report makes plain that intensive individual therapy is indicated.
I have concluded that you are likely to remain indefinitely a high risk to children in our community, notwithstanding the absence of your lengthy criminal history. In addition I also adopt the crown's written submission that even if there is material which points positively towards the appropriateness of parole, the discretion to grant parole should not be exercised in favour of the prisoner if there is sufficient reason not to do so. I think that is the case here."
It should by now be apparent that, when an application is made by the prosecution for an order that the offender be imprisoned indefinitely, the prosecution must provide the sentencing Judge with all the relevant material to justify the making of such an order, which is based upon a prediction about the behaviour of the offender many years ahead. It would normally be expected that a psychiatric, as well as a psychological report, would be provided and that those reports would focus on the likely condition of the prisoner at the time when he or she would otherwise be released from custody in respect of the nominal sentence. It would normally be undesirable to sentence a prisoner to an indefinite term of imprisonment upon the report of one person alone. Guidance in this respect is provided in the observations of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in McGarry's case at [30]. Furthermore, having regard to the seriousness of the consequences of such an order, it might be expected that, in the majority of cases, oral evidence will be appropriate, so that expert opinions may be tested in Court. In the past, prosecution applications for indefinite imprisonment have sometimes been too lightly made and granted.
In the circumstances, I am of the view that the material in this case was not such as to justify a finding on the balance of probabilities that, when the offender would otherwise be released from custody in respect of his nominal sentence, he "would be a danger to society, or a part of it". More is required than establishing that there is a risk, even a substantial risk that an offender will reoffend. As Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in McGarry v The Queen at [21] which I have already quoted:
"If, however, section 98 [of the Sentencing Act] were concerned only with the risk of an offender reoffending, the inclusion of pars (a), (c) and (d) in subsection (2) was unnecessary.
Their inclusion suggests that 'danger to society, or a part of it' means more than that there is a risk, even a significant risk, that an offender will reoffend."
I do not consider that this was a case in which "all available and relevant material" was placed before the sentencing Judge. In all the circumstances, in my opinion, the discretion of the learned sentencing Judge has miscarried and I would therefore quash the indefinite sentence.
The question of whether an order for eligibility for parole should be made is somewhat problematic. It was claimed by counsel for the applicant that his Honour failed to take into account that the pre‑sentence report supported eligibility for parole, having regard to the applicant's lack of an extensive record of previous convictions, his early plea, his readiness to acknowledge the harm his offending had caused to his young victims and their families, and his expressed interest in receiving treatment. His Honour, however, had reservations about the weight to be placed on the applicant's plea of guilty and his readiness to acknowledge his offending, it being almost inevitably that he would be convicted following the seizure of the offending materials from his home. His Honour also expressed reservations about the applicant's amenability to treatment; but the justification for this reservation does not clearly emerge from his Honour's sentencing remarks. It is not consistent with the psychological report in which it is said that the applicant was considered suitable for participation in the Sex Offenders Treatment Programme. Nor was it suggested that the additional therapeutic input on an individual basis would not prove to be successful.
The learned sentencing Judge, as previously indicated, imposed an effective head sentence of 12 years' imprisonment. That is a substantial term of imprisonment; but it is one which was appropriate and entirely justified having regard to the nature and number of the offences committed by the applicant against the 12 young victims. Moreover, the sentences imposed with respect to the individual counts were also appropriate. Having regard to the therapy which is available to the applicant and to the applicant's expression of his willingness to participate in the suggested programs, I have concluded that this Court should grant the applicant eligibility for parole. It must, however, be made abundantly clear that the fact that the applicant may be eligible for parole does not mean that he will necessarily be granted parole as soon as he has served his minimum term. That will be a matter for the Parole Board to determine in due course. At that time, the Board will doubtless examine with very considerable care whether the effect of the psychological and

psychiatric treatment has been such as to indicate to its satisfaction that the applicant does not present a danger to society or a part of it. It might reasonably be anticipated that the sentences which he must now serve will act as a significant deterrent against his further offending. In this respect it should not be overlooked that this is the first occasion upon which the applicant has been convicted of sexual offences. Furthermore, it is to be noted that, should the applicant be released on parole and breach that parole, the cancellation of his parole would almost certainly follow.

Having regard to the foregoing, I would allow the applicant's appeal against his indefinite sentence and quash that sentence. I would grant the applicant leave to appeal against the learned sentencing Judge's decision not to make an order for eligibility for parole and I would make an order that he be eligible for parole in relation to the sentences imposed upon him.
WALLWORK J: I agree with the reasons for judgment and the conclusions of Kennedy J. I also agree with the orders proposed by his Honour. There is nothing I wish to add.
PIDGEON AUJ: I am in agreement with the reasons for judgment of Kennedy J and with the orders his Honour proposes.