Pickett v The Queen
[2019] WASCA 178
•12 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PICKETT -v- THE QUEEN [2019] WASCA 178
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 7 JUNE 2019
DELIVERED : 12 NOVEMBER 2019
FILE NO/S: CACR 148 of 2018
BETWEEN: KINGSLEY ARNOLD PICKETT
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MURRAY J
File Number : INS 198 of 1999
Catchwords:
Criminal law and sentencing - Order for indefinite imprisonment - Whether judge erred in principle - Whether material before the sentencing judge capable of sustaining an order for indefinite imprisonment
Legislation:
Sentencing Act 1995 (WA), s 98
Result:
Appeal upheld
Appellant resentenced to finite sentences
Category: D
Representation:
Counsel:
| Appellant | : | G M Cleary |
| Respondent | : | A L Forrester SC & G N Beggs |
Solicitors:
| Appellant | : | Carol Bahemia Lawyers |
| Respondent | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Buckley v The Queen [2006] HCA 7; (2006) 80 ALJR 605
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
DAL v The State of Western Australia [2006] WASCA 246; (2006) 33 WAR 143
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
McGarry v The State of Western Australia [2005] WASCA 252; (2005) 31 WAR 69
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Pendleton v The Queen [2002] WASCA 4
Yates v The Queen [2013] HCA 8; (2013) 247 CLR 328
JUDGMENT OF THE COURT:
Summary
On 23 June 2000, Murray J sentenced the appellant to 9 years' imprisonment without parole eligibility for the offences of aggravated burglary, armed robbery, aggravated indecent assault and aggravated sexual penetration without consent (the Subject Offences). When the sentences were imposed for the Subject Offences, the appellant was already serving a total effective sentence of 10 years 9 months' imprisonment imposed by other judges for other offences. The sentence of 9 years' imprisonment for the Subject Offences was ordered to be served partly cumulatively upon the sentences already imposed, and to commence on 17 August 2001. The effect of these finite terms of imprisonment was that the appellant would otherwise have been released from custody on 17 August 2007.
However, Murray J also made an order for indefinite imprisonment under s 98 of the Sentencing Act1995 (WA).
Before making an indefinite imprisonment order, the court was required to give affirmative answers to the following two questions:
(1)Would the appellant, when he would otherwise be released from custody, be a danger to society or a part of it because of one or more of the factors specified in s 98(2)(a) ‑ (d)?
(2)If so, in all of the circumstances, should the discretion under s 98 be exercised in favour of making an order for indefinite imprisonment?
The appellant has an atrocious juvenile criminal record that includes two convictions for manslaughter committed on 26 December 1991. However, the bulk of his offending was committed as a juvenile and under the age of 14 years. The manslaughter offences were committed when the appellant had only recently turned 14 years old.
The practical consequence of the above sentences is that the appellant has been in custody for a period of approximately 21 years since 4 December 1998.
In 2018, the appellant instituted an appeal against his sentences for the Subject Offences. The appeal notice has been filed well outside the time for appealing. The appellant seeks an extension of time to appeal against the order for indefinite imprisonment. He contends that Murray J applied the wrong test and that the materials before his Honour were incapable of sustaining an order under s 98 of the Sentencing Act.
For the reasons that follow, we accept those contentions. In summary, in making the indefinite imprisonment order, Murray J addressed the first but not the second of the questions identified at [3] above, and thereby applied the incorrect test. Further, the psychiatric and psychological material before Murray J was directed to the appellant's risk of offending at the time of his sentencing in 2000. That psychiatric and psychological material did not address the risk the appellant would pose if released in 2007, after serving his fixed term sentences. Having regard to the appellant's age when most of his offences were committed, his record could not by itself justify an indefinite imprisonment order in the absence of psychiatric and psychological material addressing the risk he would pose at that later time.
In these circumstances, despite the appellant's long delay in instituting the appeal, an extension of time is warranted in order to avoid a miscarriage of justice.
It is therefore necessary for this court to exercise the sentencing discretion for the Subject Offences afresh and for itself. For that purpose, this court ordered an updated pre-sentence report, psychological report and psychiatric report. Following receipt of these reports, the respondent did not press for this court to make an indefinite imprisonment order in resentencing the appellant.
Consequently, we would extend the time to appeal, grant leave to appeal, allow the appeal, set aside the sentences imposed for the Subject Offences, and resentence the appellant to finite terms (which will have expired long ago), without any order for indefinite detention.
These orders will not result in the appellant's immediate release from custody. The State has applied for an order under the Dangerous Sexual Offenders Act 2006 (WA) in respect of the appellant. The general division of this court has ordered that the appellant be detained in custody pending the determination of the State's application under that Act. Nothing in these reasons should be taken to indicate or predict the outcome of that application.
The Subject Offences
Following a trial on 22 ‑ 23 May 2000, the appellant was convicted of the Subject Offences, all of which occurred on 29 November 1998 at a home in Cloverdale. All of the offences were committed against the same complainant.
The offences may be broadly summarised as follows. Count 1 was an offence of aggravated burglary involving the appellant breaking and entering into the complainant's home in company with a co-offender. Count 2 was an offence of armed robbery involving the appellant stealing from the complainant the sum of $55 with threats of violence while pretending to be armed with a knife. Count 3 was an offence of aggravated indecent assault involving the appellant unlawfully and indecently assaulting the complainant while pretending to be armed with a knife. Count 5 was an offence of aggravated sexual penetration without consent involving the appellant introducing his penis into her mouth while pretending to be armed with a knife. Count 6 was an offence of aggravated sexual penetration without consent involving the appellant penetrating the complainant's vagina with his finger while pretending to be armed with a knife. The appellant was acquitted of counts 4 and 7 on the indictment.
The facts may be broadly summarised as follows. In the early hours of 29 November 1998, the 27‑year‑old female complainant was at home alone. Her husband had gone to work. She was woken by the sound of the appellant breaking a sliding glass door of her house (count 1). She called the police and hid in her bedroom. The appellant entered the complainant's bedroom and pretended that he was armed with a knife. He demanded money from the complainant. She gave him $55 in cash (count 2). The appellant made the complainant remove her nightdress, so that she was naked. He compelled her to sexually touch herself (count 3). He then compelled her, while she was still naked, to walk outside to a storeroom past the co‑offender, who was keeping watch. The appellant then sexually penetrated the complainant by putting his penis in her mouth without her consent (count 5). Finally, he then sexually penetrated her vagina with his finger without her consent (count 6).
It was accepted that the appellant had entered the house with intent to steal property, and that the sexual offending was not premeditated.
The Subject Offences were committed the day before the appellant's 21st birthday, on the night of his 21st birthday party.
The appellant's personal circumstances and criminal history
The appellant's personal circumstances and criminal history must be considered together because, regrettably, they are so closely intertwined.
Childhood circumstances
Aspects of the appellant's personal circumstances were outlined in the pre‑sentence report before the sentencing judge, and included the following. The appellant is the eldest son and third of nine children born to his parents, who, at the time of sentence, had been married for over 20 years. They are non‑drinkers who provided a stable home. At the time of sentence, the appellant's family had suffered some abuse and torment as a consequence of the appellant's offending behaviour. Nevertheless, they remained supportive of him.
The appellant attended numerous primary schools. He struggled to cope with schoolwork. He was often in trouble for fighting and frequent truancy. He was expelled from school at the age of 11 years. The appellant has had very little employment.
Early offending history
Murray J made the following observations about the appellant's early offending:[1]
I have examined your criminal history. It is, although it involves some relatively minor elements of duplication, a criminal history as long as any that I have seen, the reading of which is a cause for great sadness, sadness at the total waste of your life thus far, because it reveals that your offending behaviour started in 1986 when, upon my calculation, you were 8 years of age and it is perfectly clear that much has been tried, and the record speaks of what has been tried, to amend your behaviour during repeated appearances in the Children's Court.
The offending, however, continues, and, as I read the criminal history, the first detention as such was imposed in 1990 at the very young age of 12. The criminal history reveals a huge number of motor vehicle offences - no doubt stealing motor vehicles and joy‑riding activities - but by 1991 we see the start of regular offences of dishonesty, mainly breaking and entering offences, and ever more serious violent offences including robbery which escalated to sentences on 16 April 1992 for two offences of manslaughter by motor vehicle and your detention then in relation to those matters again at the appallingly young age of 14 years of age.
That was followed up on 30 November 1992 by your conviction and sentence for a series of violent offences including two robberies and more detention was imposed on what seems to me to have been your 15th birthday. It was then, as I understand the position, that the order was made under the Crimes (Serious and Repeat Offenders) Sentencing Act of 1992, not as an act of discretionary judgment on the part of the court but as a requirement of the legislation, section 6(2)(b) of that act. So the indefinite detention order was made at that time.
[1] ts 214 - 215.
The appellant committed the Subject Offences while he was the subject of a conditional release order (CRO) that was imposed as part of a sentence of indefinite detention. The sentence of indefinite detention, under the now repealed Crimes (Serious and Repeat Offenders) Sentencing Act 1992 (WA), was imposed on 30 November 1992, which was the appellant's 15th birthday. It was imposed for multiple offences, including assault of a public officer, assault to prevent arrest, burglary, dangerous driving, escape from legal custody, failure to stop, resisting arrest, robbery in company and stealing.
Release from custody in November - December 1994
The appellant was released from custody on a CRO from his indefinite detention on 7 November 1994 (at the age of 16 years). He was returned to custody for breach of a curfew condition on 6 December 1994 (at the age of 17 years). The total period out of custody was about one month.
Release from custody and offending in May - June 1995
The appellant was next released from custody on a CRO on 6 May 1995 (at the age of 17 years). He was returned to custody about one month later on 2 June 1995 (still at the age of 17 years). While on the CRO, he committed multiple offences, including assault occasioning bodily harm, assault of a public officer, damage, fraud, stealing a motor vehicle and reckless driving.
Appellant becomes an adult
The appellant turned 18 years old on 30 November 1995.
Release from custody and offending in July 1997 - March 1998
The appellant was again released from custody on a CRO on 9 July 1997 (at the age of 19 years). He was in the community for seven months until 6 March 1998, when he was remanded in custody on an offence of stealing a motor vehicle. That offence was committed on 24 February 1998. The appellant was 20 years old at the time of the offence of stealing a motor vehicle and his return to custody on remand.
Release from custody and offending in July - September 1998
The appellant was next released from custody on 19 June 1998 (at the age of 20 years). He remained in the community for three months until 24 September 1998, when he was arrested and remanded in custody for offences of aggravated burglary and attempted aggravated burglary committed on 23 and 24 September 1998.
Release from custody and offending in October - December 1998
On 7 October 1998 (at the age of 20 years), the appellant was released on home detention bail in respect of the burglary offences committed on 23 and 24 September 1998.
The Subject Offences were committed on 29 November 1998.
The appellant committed four other violent home burglary offences against four different complainants over the period of five days between 29 November and 3 December 1998:
(1)On Monday 30 November 1998, the appellant committed an aggravated burglary at the home of the complainant. The complainant and his wife came home at 9.30 pm and found that their house had been ransacked. As they began to look through the house they were confronted by the appellant, who was holding a star picket which he raised at the complainant. The complainant and his wife ran from the house and the appellant ran into a bedroom and left via a window. Some credit cards and money were taken.
(2)On Tuesday 1 December 1998, the appellant committed an aggravated burglary at the home of the complainant. At about 9.50 pm, the complainant and his sister-in-law were sitting in their lounge room in their house in Cloverdale. They heard a noise and looked up to see that the curtain and sliding door had been opened and the appellant was standing watching them. The appellant was holding a brick, which he raised as he demanded that they hand over their wallets. The complainants refused. The appellant threw the brick at the two complainants and ran off.
(3)On Wednesday 2 December 1998, the appellant committed an aggravated burglary and an attempted stealing with violence against the complainant. The 55-year-old complainant was at home alone reading in bed at about 11.55 pm when she heard a loud crashing noise. The complainant went to investigate and found a glass sliding door smashed. The complainant returned to her bedroom to call police and activated her duress alarm. She was then confronted by the appellant holding a garden stake. The appellant jabbed at the complainant with the stake demanding that she give him money. The appellant left when the duress alarm began to sound, stealing a black sports bag which was later returned to the complainant.
(4)On Thursday 3 December 1998, the appellant committed an aggravated burglary and an assault occasioning bodily harm offence against the complainant. At about 1.15 am, the complainant and his wife were asleep at their residence in Cloverdale. The complainant was woken by the sound of smashing glass and went to investigate, arming himself with an axe handle. The complainant saw the appellant standing on the rear patio. The complainant's wife retrieved the cordless phone from the kitchen and went to the bedroom to call police. The appellant entered the house holding a brick in his right hand above his head. He then walked to the bedroom where the complainant's wife was waiting. The complainant approached the appellant and hit him to the back of the head with the axe handle. The appellant then punched the complainant in the face and a struggle ensued. The appellant managed to leave the premises.
The appellant committed the Subject Offences and the other offences referred to in the previous paragraph in breach of his CRO and less than eight weeks into his home detention bail.
The appellant was arrested and returned to custody on 4 December 1998, having just turned 21 years of age. He has been in custody since that time.
Participation in the Christmas Day 1998 prison riots
The appellant was taken into custody after his arrest on 4 December 1998 and was detained as a remand prisoner at Casuarina prison.
On Christmas Day 1998, unrest arose amongst a group of prisoners during the afternoon. The unrest escalated into a volatile riot situation which was not suppressed until the early hours of the following morning. During that period a large number of prisoners, including the appellant, were defying, threatening and assaulting prison and police officers and causing damage to the prison. The total cost of the damage was in the vicinity of $45,000. The appellant smashed various items and parts of buildings causing extensive damage, and assaulted prison guards. As a result, he was subsequently convicted of four counts of wilful damage and five counts of unlawfully assaulting a public officer.
Sentences already imposed when Murray J sentenced the appellant
On 22 March 1999, Commissioner Reynolds sentenced the appellant to 2 years' imprisonment, backdated to 24 November 1998, for the attempted burglary offence committed on 24 September 1998.
On 17 August 1999, Hammond CJDC sentenced the appellant to a total effective sentence of 8 years' imprisonment for the burglary offence committed on 23 September 1998 and the burglary, robbery and assault offences, referred to at [29] above, committed on 30 November - 3 December 1998.
On 4 November 1999, Kennedy DCJ sentenced the appellant to a total effective sentence of 2 years' imprisonment for the offences committed during the Casuarina prison riot. The 2‑year term was ordered to be served cumulatively on the sentences imposed by Hammond CJDC.
The reports before Murray J
Before Murray J were a psychiatric report, a psychological report and a pre‑sentence report.
Psychiatric report
The psychiatric report was prepared by Dr Ananth Pullela, a psychiatrist with more than 20 years of experience, including extensive forensic experience. The report described the main purpose for the appellant's referral as to assess the appellant's 'current risk to the community and the likelihood of any significant change in terms of reducing the risk to the community in the immediate future'.[2] (emphasis added)
[2] Psychiatric report of Dr Pullela, page 1.
Under the heading, 'Treatment Programs Undertaken', the report identified an anger management course and violent offender treatment program completed by the appellant in 1997. The report states that the appellant's 'personality profile clearly indicates ingrained maladaptive patterns of behaviour of antisocial nature over the years'.[3] Further, the report states that the 'nature of his offences clearly indicate impulsivity, aggression and a reckless disregard for the safety of others'.[4] Dr Pullela expressed the view that the appellant 'lacks genuine remorse and his subjective account of being shameful and guilty is doubtful'.[5]
[3] Psychiatric report of Dr Pullela, page 4.
[4] Psychiatric report of Dr Pullela, page 4.
[5] Psychiatric report of Dr Pullela, page 5.
The author stated that:[6]
It is my considered professional opinion that [the appellant] carries a high risk of reoffending in future (a past history of violence is a good clinical indicator for future violence in addition to a number of other prediction[s] as described above).
[6] Psychiatric report of Dr Pullela, page 5.
Under the heading, 'Opinion', Dr Pullela stated that it was his 'considered opinion that [the appellant] is a serious repeat offender'.[7] The reference to 'serious repeat offender' was footnoted, referring to a paper written by Dr Pullela in 1994, but that paper does not appear to have been before Murray J and is not before this court.
[7] Psychiatric report of Dr Pullela, page 5.
Dr Pullela observed that the appellant's offending pattern had escalated in degree, severity and intensity, taking into account the nature, the number of charges and offences involving aggression, violence and intimidation. He then stated that he would like to 'respectfully recommend' to the court that the appellant 'requires to be in a custodial setting under maximum security conditions … for an indefinite period of time with eligibility for parole review'.[8] The report also strongly recommended that the appellant be required to undergo alcohol and drug assessment in a rehabilitation program along with ongoing psychological counselling and monitoring, including one‑to‑one counselling and therapy to address some of the appellant's personality deficits.
[8] Psychiatric report of Dr Pullela, page 6.
Nothing in Dr Pullela's report addressed the likely or possible outcomes of any such programs, counselling or therapy.
Psychological report
There was little in the psychological report that is relevant for present purposes. The author, Ms Smith, observed that consideration needed to be given to the fact that the appellant had been in detention for most of the preceding 10 years, which were his formative years. She observed that his development had undoubtedly been affected by incarceration and that many of his behaviours would be appropriate adaptations to surviving in prison. She expressed the opinion that his risk to the community, best predicted by past behaviour, was high. She recommended that the appellant undertake individual therapy to address his post‑traumatic stress, suggesting he also needed assistance in drug counselling and anger management.[9]
Pre-sentence report
[9] Psychological report of Ms Smith, page 3.
The pre‑sentence report set out much of the appellant's history. The author, Ms Parsons, considered that the lengthy period of the appellant's incarceration had impacted seriously on his social development. She assessed him as at a high risk of further offending behaviour due to his lengthy history of offending, limited intellectual ability, poor social skills and substance misuse, delinquent peer influences and lack of employment skills.
Sentencing remarks
As set out at [21] above, Murray J noted that the appellant was, at the time of sentence, already the subject of an indefinite detention order made under the Crimes (Serious and Repeat Offenders) Sentencing Act.
The sentencing judge referred to the sentences which had been imposed in the District Court, referred to at [34] - [36] above.
Taking into account the appellant's history, Murray J considered it was inappropriate, and probably not open, to make an order for parole.[10] Murray J concluded that the order under the Crimes (Serious and Repeat Offenders) Act should be brought to an end.[11]
[10] ts 217.
[11] ts 218.
In fixing the finite sentences for the appellant's offences, Murray J made the following observations:
(1)The appellant had expressed no remorse, and no victim empathy, in relation to the serious offences he had committed.[12]
(2)The various offences committed each deserved substantial punishment in its own right. However, considerations of totality, particularly having regard to the appellant's age, required significantly less accumulation than would otherwise have been appropriate.[13]
[12] ts 219.
[13] ts 219 - 220.
Murray J ordered that the sentences he imposed would commence on 17 August 2001, after the appellant had served 2 years of the sentences that Hammond CJDC imposed on 17 August 1999.[14] Murray J imposed the following terms of imprisonment:
(1)Count 1 - aggravated burglary - 3 years.
(2)Count 2 - armed robbery - 5 years.
(3)Count 3 - aggravated indecent assault - requiring the complainant to touch herself - 2 years.
(4)Count 5 - aggravated sexual penetration without consent - compelling fellatio - 4 years.
(5)Count 6 - aggravated sexual penetration without consent - digital penetration - 3 years.
Murray J ordered that counts 2 and 5 be served cumulatively and counts 1, 3 and 6 be served concurrently. Thus, the total effective sentence was 9 years' imprisonment, without parole eligibility, to commence on 17 August 2001.[15]
[14] ts 221.
[15] ts 221.
Because ground 1 turns on a proper understanding of the sentencing judge's reasons in relation to the making of an indefinite detention order under s 98 of the Act, we will set out his remarks in full. His Honour said as follows:[16]
[16] ts 221 - 224.
I now turn to the question of the Sentencing Act, section 98. … Under the act it is perfectly clear and the courts have recently made it clear, both the Court of Criminal Appeal and recently the High Court, that to make an order as an act of discretion under this section is a judgment by a sentencing judge of an exceptional kind, to be made only where there is clear evidence that the judgment is warranted.
The judgment is made on the balance of probabilities and the question which arises under the act is whether on that basis, 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 the various factors which are set out.
The effect of the orders which I have made imposing imprisonment upon you is that those orders, if time is not lost by way of loss of remissions, would end on 17 August 2007, a time at which you would be aged 29, coming up towards your 30th birthday, so there is a considerable period into the future to which I must look, but I am able to have regard to the exceptional seriousness of the offences before the court and I do so and I take the view that those offences are of exceptional seriousness and, most disturbingly, are an indicator of escalation in the seriousness of the offending of a violent kind which is a continuing pattern up to at least the point at the end of 1998 when these offences were, the bulk of them, committed.
I am entitled to have regard to the risk that you will commit other indictable offences and I think it is perfectly apparent from your history that there remains and will continue to remain a significant risk of the commission of not only other indictable offences but serious offences of a violent kind. I am able to have regard to your character, reports about your psychological, psychiatric and medical condition, and your previous history, all of which - the previous history, certainly - I have discussed in some detail.
I turn finally, then, to the evidence which concerns you personally and say that I have been assisted greatly in that regard by the terms of a pre-sentence report which has been provided and which, in my opinion, supports the conclusion that you will at the appropriate time be a serious danger to the community, but more specifically I would wish to turn to and mention that I have had regard to a psychiatric report made to the court by a senior consultant forensic psychiatrist attached to or consulted by both the Ministry of Justice and the Health Department, a psychiatrist whose credentials and qualifications in the forensic field are very considerable. He offers a prediction of dangerousness which, to my mind, on the evidence before him and before the court is compelling.
He speaks of your temperamental and personality traits - the incapacity to feel empathy; the inability to learn, it would appear; the, what he describes as, ingrained maladaptive patterns of antisocial behaviour - and expresses the opinion that you carry a high risk of reoffending in future, making the obvious observation, which I'm sure is correct, that a past history of violence is a good clinical indicator for future violence, in addition to a number of the other predictions described above.
He expresses the view that you are a serious repeat offender in the accepted terminology and have significant personality deficits which are contributing to that and added to by problems with alcohol and drugs, which appear, despite some efforts in the past, to be substantially unaddressed, commenting that your offending pattern has escalated in degree, severity and intensity. His recommendation specifically to the court is that you should into the future be in a custodial setting under maximum security conditions for an indefinite period of time with eligibility for parole review, and he adds the recommendation, a strong recommendation, that you are required to undergo an in-depth alcohol and drug assessment and rehabilitation program along with ongoing psychological counselling and monitoring for what have been previously discussed, bouts of depression and the post-traumatic flashbacks which I need not go into in detail but which are significant aspects of your personality difficulties at the moment.
All of that, in my opinion, is supported by the psychological report which has been placed before the court and that speaks of your personal circumstances, your personality which has contributing factors at work in producing the offending, the drug dependence, symptoms of post-traumatic stress which have been touched upon already, and she speaks of some of the contributing factors in these terms, which seem to me also to be compelling:
Consideration must be given to the fact that Mr Pickett has been in detention for most of the last 10 years, which are his .......... he can experience a positive sense of achievement and personal success.
I think those recommendations are wise, sensible and they are expressly endorsed by the court. It seems to me, in other words, that the process of looking into the future in your case supports clearly the making of an order of indefinite imprisonment, which I do now make and attach to the terms which I have imposed.
I am satisfied that the preconditions for that order will exist on the balance of probabilities at the time when you would be due for release, but that is not to say that this court and those who have reported upon you to this court would give up on you entirely. It does seem to me that there is something in those reports to indicate that with processes of treatment, counselling, guidance and instruction and, hopefully, developing maturity, you may be able ultimately to give the lie to those predictions of future dangerousness. If so, there would be none happier in that result than I or the community, but for the moment it seems to me that the court is left with no alternative but the making of the orders which I have pronounced. (emphasis added)
Statutory provisions
At the time the appellant was sentenced, s 98 of the Sentencing Act provided as follows:
(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.
It can be seen that, by s 98(2), the court must not make an order for indefinite imprisonment unless it is satisfied, on the balance of probabilities, that when the offender would otherwise be released from custody, he or she would be a danger to society or a part of it, because of one or more of the factors enumerated in paragraphs (a), (b), (c) and (d) of the subsection.
Legal principles
The phrase 'a danger to society, or a part of it' in s 98(2) of the Sentencing Act means more than that there is a risk, even a significant risk, that an offender will reoffend.[17] More is required than a bare conclusion that it is probable that the offender will commit some indictable offence in the future.[18]
[17] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [21].
[18] McGarry v The Queen [23].
In McGarry v The State of Western Australia,[19] Wheeler JA (with whom Roberts‑Smith & McLure JJA agreed) explained the requirements of paragraphs (a) ‑ (d) of s 98(2), saying, in summary, as follows:[20]
(a)Paragraph (a) appears to contemplate that there may be offences of such seriousness that the commission of a single such offence will, of itself, indicate that the offender is a danger to society, or a part of it. Although it is open to a sentencing Judge to determine that the relevant danger exists based upon a single offence alone, it is unlikely that this factor, of itself, will often be decisive. It is more likely that it will fall to be considered together with some of the other factors referred to in s 98(2).
(b)As to par (b):
'First, it is not a risk of any offending which will suffice. Although the court is not required to identify what particular offence or offences the offender is likely to commit (and in many cases, one would expect that there would be a range of probable offending), it must be sufficiently satisfied of the nature of the likely offending to be able to form a view that the offences will be indictable ones. Further, satisfaction that one other indictable offence, at some time, may be committed is plainly not enough. It is a risk that the offender 'will' (not may) commit indictable offences, in the plural. The type of indictable offences to which the subsection directs attention are to be ascertained from its context. That context includes the nature of the order which will be made once the court reaches the required degree of satisfaction, together with indications of the nature of the task which are to be derived from the statutory language, including the reference to 'other exceptional circumstances' in par (d)'.
(c)Paragraph (c) involves an inquiry into whether there is anything in any psychological, psychiatric or medical reports, or in the offender's criminal history, examined in detail, which indicates that the offender is likely to engage in conduct, the consequences of which could be 'grave' or 'serious' for society, or a part of it.
(d)Paragraph (d) must be considered in the context of s 98 as a whole. It is unlikely that this factor will often, of itself, be decisive, although cases can be envisaged in which there might be room for argument about whether the matter fell squarely within one of the other paragraphs, but where there was, nevertheless, a very high degree of probable danger established in relation to the offender.
[19] McGarry v The State of Western Australia [2005] WASCA 252; (2005) 31 WAR 69 [26] ‑ [29].
[20] The following summary is taken from the reasons of Buss JA in DALv The State of Western Australia [2006] WASCA 246; (2006) 33 WAR 143 [20].
The power to impose an indefinite sentence is to be exercised sparingly, and only in a clear case.[21]
[21] Buckley v The Queen [2006] HCA 7; (2006) 80 ALJR 605 [44]; DAL [19].
It is well established that a sentencing judge is not obliged to make an order under s 98(1) even if satisfied, on the balance of probabilities, of the matters referred to in s 98(2). The sentencing judge has a discretion in deciding whether or not to make an order of indefinite imprisonment, even if the conditions specified in s 98(1) and 98(2) and met.[22]
[22] McGarry v The Queen [7]; DAL [14].
Finally, the following observations of Kennedy J (with whom Wallwork J & Pidgeon AuJ agreed) in Pendleton v The Queen[23] should be noted:
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. (emphasis added)
[23] Pendleton v The Queen [2002] WASCA 4 [42].
Grounds of appeal
There are three grounds of appeal. It is only necessary to refer to two of them. Ground 1 alleges that the judge erred in law in applying the wrong test under s 98 of the Sentencing Act. Ground 3 contends that the material before Murray J could not and did not sustain the making of an order under s 98 of the Sentencing Act.
Ground 1: did the judge apply the wrong test?
As already noted, two questions must be answered affirmatively before an order under s 98 can be made. First, is the judge satisfied that the precondition in s 98(2) has been established? In other words, is the court 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 the factors in paragraphs (a) ‑ (d)? If the judge is so satisfied, the second question arises: in all of the circumstances, should the discretion under s 98 be exercised in favour of making an order for indefinite imprisonment?
The appellant contends that Murray J erred in that his Honour did not recognise, or address, the second question. For the reasons that follow, in our opinion, that submission must be accepted.
It is true, as the respondent emphasises, that at the outset, in the first italicised portion of the passage at [51] above, Murray J referred to the making of an order under s 98 as 'an act of discretion … of an exceptional kind, to be made only where there is clear evidence that the judgment is warranted'.[24] However, when his Honour's remarks are considered as a whole, as explained below, those introductory observations do not reflect or reveal the recognition by Murray J of a discretion, to be exercised if and after the preconditions are satisfied. Rather, they are a reference to the making of a value judgment, involving the weighing of competing considerations, that is involved in determining whether the precondition in s 98(2) is satisfied.[25]
[24] ts 221.
[25] See, for example, Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [19].
Immediately following the introductory observation, Murray J referred to 'the judgment' as being made on the balance of probabilities, observing that 'the question which arises … is whether on that basis, 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'.[26] That reflects the question under s 98(2), which his Honour referred to as the question. That language suggests that Murray J perceived there to be a single question - whether the precondition in s 98(2) was satisfied. Thereafter, Murray J addressed matters which bore upon whether the precondition for the making of the order was satisfied.
[26] ts 221 - 222.
After referring to what was said in the psychiatric and psychological reports, Murray J endorsed the recommendations in those reports.[27] His Honour then observed that the process of looking into the future supported the making of the order of indefinite imprisonment.[28] His Honour then stated, in the italicised portion of the last paragraph of the extract at [51] above, that he was satisfied that the preconditions for the order will exist on the balance of probabilities at the time when the appellant would be due for release.[29] That is, unambiguously, a conclusion in relation to the first question. The observations in the balance of that passage, immediately following that statement, seem to us to be addressed to the appellant by way of an attempted consolation or reassurance; they cannot be seen as directed to the exercise of any discretion.
[27] ts 224.
[28] ts 224.
[29] ts 224.
It can be seen, therefore, that nowhere in the judge's remarks did he expressly consider how the discretion was to be exercised once he was satisfied that the preconditions were met.
In summary, there is no statement by the judge recognising that, once the precondition under s 98(2) is satisfied, there is a discretion whether to make the order and there is no statement as to why, in the circumstances of the case, the discretion was exercised in favour of the making of an order.
In our respectful opinion, it must be inferred that his Honour erred in failing to appreciate the existence of the discretion, or in failing to explain the reasons for exercising it in favour of making an indefinite imprisonment order.
For these reasons, ground 1 is made out.
Ground 3: was the material before Murray J capable of sustaining an order under s 98?
We would also uphold ground 3. In our respectful opinion, on the material before the sentencing judge, it was not open to be satisfied of the precondition in s 98(2). All the more so, it was not open to be so satisfied in a way that could justify the exercise of the discretion to impose indefinite imprisonment.
In making the indefinite imprisonment order, Murray J relied essentially on two matters: the reports before him and the number and seriousness of the offences of which the appellant had already been convicted. The respondent submits that those matters sustain the making of the order, particularly emphasising the number and seriousness of the offences committed by the appellant.[30] We do not accept that submission. For the reasons that follow, the reports before Murray J and the appellant's criminal history, taken together, were not capable of sustaining the making of an indefinite imprisonment order.
[30] Respondent's submissions [36] ‑ [38], [49]; appeal ts 39 - 40, 41 - 42.
Section 98(2) directs attention to the position when the offender would otherwise be released from custody. In the case of the appellant, given the finite terms imposed by the sentencing judge, and taking into account remissions,[31] the time the offender would otherwise be released was 17 August 2007. Thus, in the appellant's case, the question posed by s 98(2) directed attention to the position more than seven years after the date on which Murray J was imposing sentence.
[31] As sentencing was prior to the enactment of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), three years of the nine‑year total effective sentence would have been remitted.
The significance of that horizon is substantially magnified by the fact that, at the time of sentence, the appellant was only 22 years old. Thus, the critical question directed attention to the position when the appellant would be almost 30 years old, in circumstances where the appellant had been in custody since 4 December 1998, which was a few days after his 21st birthday.
While the reports before Murray J expressed opinions as to the risk of reoffending, none of them was directed to the question of whether the appellant would be a danger to society at a time over seven years later, when he would otherwise be released from his fixed terms of imprisonment. In our view, that was fatal to the application for an indefinite imprisonment order. Murray J relied heavily on the psychiatric report. For the reasons below, in our view, the psychiatric report was of little assistance in determining the question posed by s 98(2).
The main purpose of the psychiatric report was described as being an assessment of the appellant's current risk and the likelihood of significant change in the immediate future. That statement of the report's purpose frames what follows in the report. That purpose is fundamentally different from the enquiry dictated by s 98(2).
The subsequent statement in general terms that the appellant carries a high risk of reoffending in the future cannot be taken as an opinion as to the long‑term position. In part, that is because, as we have said, this opinion is to be read in the context of the author's statement of the purpose of the psychiatric report. Further, nothing in the report addresses the likely effects of programs of rehabilitation, counselling or other treatment for the appellant and the risks following the passage of many years of maturing. Moreover, as outlined in [54], a mere risk of reoffending does not sustain the conclusion that a person will be a serious danger to the community, in the sense explained in the cases.
Dr Pullela's statement that the appellant is a 'serious repeat offender' does not assist in determining the question posed by s 98(2). The report does not explain the reference to 'a serious repeat offender'. Insofar as it is a reference to the statutory regime that existed in the 1990s, whether a person was a serious repeat offender was directed to the past, turning on the number and character of offences committed by the person. By contrast, the question posed by s 98(2) is directed to the future, in the present case seven years hence.
The recommendation in the psychiatric report that the appellant be placed in a custodial setting for an indefinite period of time does not assist in the evaluation of whether the requirement of s 98(2) is satisfied. The making of such a recommendation cannot be treated as a proxy for the expression of an opinion properly directed to the relevant question at the time when the finite sentence is completed.
For all these reasons, Dr Pullela's report did not provide any foundation for the making of an indefinite imprisonment order. The same is true of the psychologist's report and the pre‑sentence report, both of which were, as already noted, not directed to the position several years in the future when the appellant was released from his nominal terms of imprisonment.
We turn to the appellant's criminal history. The appellant committed an enormous number of offences before he turned 14. On 26 December 1991, at the age of about 14 years and 1 month, the appellant committed the two manslaughter offences and was arrested. However, offences committed at such a young age are of limited utility in predicting how the appellant is likely to behave at the age of 30.
The times at which the appellant was subsequently released from custody are referred to at [22] - [31] above. When he was sentenced by the sentencing judge, the appellant had spent a total of about 14 months out of custody since he was arrested as a 14-year-old in December 1991 (when he committed the manslaughter offences).
The judge emphasised,[32] and the respondent emphasises on appeal,[33] the seriousness of the appellant's offending, the escalation of its seriousness in November and December 1998 and the rapidity with which the appellant offended each time he was released from custody. We accept all of those matters. Nevertheless, the combination of:
(1)the fact that most of the offending was committed when the appellant was a child of less than 14 years or, in the case of the manslaughter offences, when he had just turned 14 years old;
(2)the appellant's youth - being just 21 years old - when he committed his most recent offences;
(3)the lengthy horizon - more than 7 years - before the appellant would be released; and
(4)the absence of any expert opinion directed to the critical question of the danger posed by the appellant when released in several years' time;
means that the appellant's criminal history could not, in our respectful opinion, on its own justify the making of an indefinite imprisonment order.
[32] ts 222.
[33] Appeal ts 39 - 40.
As the High Court has repeatedly said, an indefinite sentence is an exceptional sentencing option to be considered in light of the protective effect of a finite sentence. In Buckley, the court emphasised that:[34]
The statute assumes that there may be cases in which such a departure is justified by the need to protect society against serious physical harm; but a judge who takes that step must act upon cogent evidence, with a clear appreciation of the exceptional nature of the course that is being taken. Furthermore … the assessment of risk required by the statute may involve temporal issues requiring careful examination.
The court recognised that the finite sentence sets the time frame by reference to which these temporal issues are to be examined.[35] In Yates v The Queen,[36] the High Court reiterated that the courts are not authorised to make orders for the indefinite detention of a convicted person other than on acceptable evidence proving the demonstrable necessity for the order.
[34] Buckley [6].
[35] Buckley [7].
[36] Yates v The Queen [2013] HCA 8; (2013) 247 CLR 328 [34].
In the absence of expert psychiatric or psychological evidence, offences committed at the age of 21 years or less (and generally at the age of 14 years or less) provided an insufficient foundation to conclude, on the balance of probabilities, that, when released from prison aged almost 30 years, the appellant would be such a danger to society or a part of it as to reasonably justify the making of an indefinite imprisonment order.
For these reasons, ground 3 is made out.
Resentencing
Both grounds 1 and 3 having been established, this court must resentence the appellant. In doing so, the court must resentence the appellant in respect of all the offences for which he was sentenced, those sentences, together with the making of the indefinite imprisonment order, all being part of the single sentencing decision.[37]
[37] McGarry v The Queen [9].
The order releasing the appellant from the indefinite detention order made under the Crime (Serious and Repeat Offenders) Act was not part of the sentence and so is not disturbed by our resentencing. In any event, insofar as it was, the respondent accepts that the order should not be interfered with upon resentencing.[38]
[38] Appeal ts 52 - 53.
In order to inform the court's resentencing, the court ordered the preparation of a pre‑sentence report, a psychological report and a psychiatric report. We have taken the contents of those reports into account in resentencing the appellant.
The psychiatric report concluded that the appellant has no diagnosable mental disorder, including no serious personality disorder. The appellant has substance misuse disorder that has not been rectified in his time in prison. The report recognises that building and maintaining a prosocial lifestyle will be a major hurdle for the appellant when he is released from prison. Based on the use of risk‑assessment instruments, the author concluded that the appellant has a moderate risk status for future violent offending and a high risk status for future sexual offending.[39]
[39] Psychiatric report of Dr Patchett, page 10.
The psychological report records that the appellant asserts that he is now a mature middle‑aged man who realises that he must disconnect from an antisocial peer group in order to get out, and remain out, of prison. Further, he asserts that most of his drug abuse in prison occurred when he was younger and before he came to this realisation.[40] The psychological report concludes that appraisal of the appellant's risk of reoffending will likely to continue to fall into the higher‑risk bracket in the absence of a significant period of offence‑free community living.[41]
[40] Psychological report of Mr Cameron, page 8.
[41] Psychological report of Mr Cameron, page 9.
The pre‑sentence report records a number of programs in which the appellant has participated in order to address his offending behaviour. The report notes that the appellant has not undertaken a sexual offenders treatment program.[42] That is consistent with the appellant's continuing denial of the sexual offences of which he was convicted.
[42] Pre-sentence report of Ms Lovelock, page 4.
Following the receipt of these reports, the respondent did not press any application for an indefinite detention order.[43]
[43] Respondent's supplementary submissions [3].
The respondent acknowledged that any term imposed by the court in resentencing would not result in the appellant being required to serve any further time in custody.[44] In that regard, it should be noted, as mentioned previously, that the appellant has been remanded in custody in respect of proceedings brought against him under the Dangerous Sexual Offenders Act.
[44] Respondent's supplementary submissions [4]
In resentencing the appellant, the starting point is the very serious nature of the appellant's offending, and the effects it has had upon his victim.
We take into account the appellant's personal circumstances, criminal history and the other matters outlined in the reports to which we have referred.
The appellant did not have the mitigatory benefit of pleas of guilty.
We would impose the following terms of imprisonment:
(1)Count 1 - aggravated burglary - 3 years.
(2)Count 2 - armed robbery - 5 years.
(3)Count 3 - aggravated indecent assault - 3 years.
(4)Count 5 - aggravated sexual penetration without consent - 5 years.
(5)Count 6 - aggravated sexual penetration without consent - 5 years.
Counts 2, 3 and 5 will be cumulative on each other, with the other sentences to be served concurrently.
That produces a total effective sentence of 13 years' imprisonment. In our view, that is a proper reflection of the appellant's offending as a whole, in its circumstances and taking into account his personal circumstances. We would not make a parole eligibility order. The sentence should be backdated to commence on 23 June 2000, which was the date it was imposed by Murray J. That would result in a total effective sentence for the Subject Offences and the other offences referred to at [26], [29] and [33] above of approximately 14 years 7 months' imprisonment. In our view that sentence properly reflects the overall criminality involved in all of those offences having regard to all the circumstances (including those personal to the appellant).
Conclusion
For these reasons, we would make orders as follows:
(1)There be an extension of time to appeal.
(2)Leave to appeal on grounds 1 and 3 is granted.
(3)The appeal is allowed.
(4)The sentences imposed by Murray J on 23 June 2000 are set aside.
(5)The appellant is resentenced as set out in [96] ‑ [98] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Research Associate/Orderly to the Honourable Justice Beech12 NOVEMBER 2019
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