R v J; ex parte Attorney-General of Queensland

[1996] QCA 404

IN THE COURT OF APPEAL	[1996] QCA 404
SUPREME COURT OF QUEENSLAND

C.A. No. 9 of 1996.

Brisbane

[A-G v. J; R v. J]

T H E Q U E E N

v.

J

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

C.A. No. 19 of 1996.

T H E Q U E E N

v.

J

(Applicant)

_____________________________________________________________________

Macrossan C.J.
Pincus J.A.

Shepherdson J.

_____________________________________________________________________

Judgment delivered 18/10/1996

Separate Reasons for Judgment of each member of the Court; Shepherdson J.
dissenting.
_____________________________________________________________________

1.         ATTORNEY-GENERAL’S APPEAL DISMISSED.

2.         J’S APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

3.         A COPY OF THE REASONS FOR JUDGMENT OF MACROSSAN C.J. AND PINCUS J.A., TOGETHER WITH A LETTER DRAWING ATTENTION TO THE NEED TO GIVE SPECIAL CONSIDERATION TO THE APPLICANT’S RISK OF RE-OFFENDING, WHEN AND IF AN APPLICATION IS MADE FOR PAROLE, IS TO BE FORWARDED TO THE CORRECTIVE SERVICES COMMISSION.

_____________________________________________________________________
CATCHWORDS: CRIMINAL LAW - whether sentence imposed made enough

allowance for the protection of the community - Veen [No. 2]

(1988) 164 C.L.R. 465

Counsel:	Mr B Butler for the appellant. Mr Hamlyn-Harris for the applicant/respondent.
Solicitors:	Queensland Director of Public Prosecutions for the appellant. Legal Aid Office for the applicant/respondent.
Hearing date:	23 April 1996.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 18/10/1996.

Pincus JA has set out the matters which are relevant for consideration on the Attorney-General's appeal. Putting to one side the question of the application of principles discussed in Veen [No. 2] (1988) 164 C.L.R. 465 and doing this with a view to making some brief observations of my own upon this aspect, I am able to express my agreement with the approach adopted and the conclusion reached by Pincus JA.

Notwithstanding the invitation extended by Counsel on behalf of the Attorney- General to increase the sentence of eight years to some twelve years, I think that the interference of this Court would not be justified. This is so after fully allowing for the very serious anti-social motivation of J and his apparent inability or unwillingness to control his criminal instincts. The eight year sentence was very understandably unaccompanied by any recommendation for consideration for parole. J's youth and his plea of guilty are part of the relevant circumstances more fully outlined by Pincus JA and under the approach followed by this Court on appeals by the Attorney-General (see R v.Melano; ex parte Attorney-General [1995] 2 Qd.R. 186) we should not interfere. The eight year term imposed is within the available range.

Prompted by the flavour of some of the submissions made to us, it is desirable to add specifically that although there are reasons for despondency concerning J's capacity and motivation in the short term to reform, the Court would not be entitled to add an additional component to his sentence which would take it outside a permissible range as determined by the circumstance of this offence and the level of other sentences imposed in comparable cases. It is not permissible to exceed the limits of proportionality "merely" to protect society, see Veen [No. 2] at 473.

A principle of sentencing which is firmly established by Veen [No. 2] and other cases is that proportionality of the sentence to the circumstances of its commission must be preserved: see at 472. Apart from all else, this means that there must be conformity with the available range which will usually, but not always, appear from the range already established by sentences in other cases for offences of a similar character and from the statutory maximum. It is certainly clear from Veen [No. 2] that protection of society within the limits of proportionality is a factor legitimately taken into account together with other matters in fixing sentences. The need for that protection may appear from the criminal antecedents of the offender demonstrating a tendency to re-offend and the resultant need for a deterrent of the individual offender, but I accept that it can also appear from other sources, including the offender's own declarations and psychiatric reports.

J, the respondent to the Attorney-General's appeal, also himself appealed against the sentence of eight years which was imposed upon him. The principal matter of complaint was that he had spent 259 days in pre-sentence custody and the order made by the sentencing judge did not deal with that aspect or follow the procedure required by s.161 of the Penalties and Sentences Act 1992 as explained in R v. Wishart and Jenkins [1994] 2 Qd.R. 321. In the course of argument in this Court it came to be accepted by counsel for both parties that the sentencing judge had not "otherwise" ordered within the meaning of subs. (1) and had not followed the requirements of subs. (3). Notwithstanding this omission, it was accepted that the result was that the undisputed period of presentence custody had to be "taken to be imprisonment already served under the sentence" under subs. (1), so that the eight year term which was announced commenced, for the purposes of calculation, 259 days before the date on which the order was made. Once this point was accepted by counsel for the Crown, counsel for J advanced no further substantial arguments against the sentence imposed. Recording then that the effect of the order below was as indicated, and notwithstanding the formal deficiency in its terms, it is appropriate to refuse J's application for leave to appeal against sentence.

The Attorney-General's appeal should be dismissed and J's application for leave to appeal should be refused. A copy of these reasons and those of Pincus JA with a letter drawing attention to the need to give special consideration to the applicant's risk of reoffending, when and if an application is made for parole, should be sent to the Corrective Services Commission.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 18/10/1996

This is an Attorney’s appeal against sentence. The respondent committed a number of offences in April 1995 when 18 years of age and was sentenced in the District Court to 8 years imprisonment. It does not appear that any sensible criticism could be made of the sentences, were it not for the circumstance that there is evidence that the respondent is a psychopath who may well commit further serious offences when released. The question in the case is therefore whether the sentences imposed made enough allowance for the protection of the community.

There were eight counts in all, and to all of them the respondent pleaded guilty; counts 1 and 2 each attracted 1 year’s imprisonment and all the others 8 years imprisonment; only the 8 year sentences are the subject of the appeal. The most serious of counts 3 to 8 were counts 7 and 8, each of which alleged attempted anal intercourse.

Very early in the morning of 2 April 1995 the respondent, who was staying with his sister and brother-in-law, took the latter’s car without permission and drove to Gladstone and, after various incidents which need not be described, to Boyne Island where he arrived in the afternoon of 2 April. Count 1 was a charge of unlawful use of a motor vehicle. The complainant, a boy aged 9, was riding with two friends on a bike track under a bridge leading from Boyne Island to Tannum Sands when they saw the car the respondent was driving. The complainant and another boy who was with him gave the respondent directions as to how to get to Gladstone; he then approached the boys and punched the one I have referred to as "another boy" in the face. That assault is the subject of count 2 (assault occasioning bodily harm), which as I have explained was punished by a sentence of imprisonment for 1 year, a sentence which is not challenged here. The respondent walked towards the complainant and, although the complainant struggled, he was taken into the car the respondent had been driving. A woman in the vicinity saw these events and called out to the respondent, "What the hell do you think you’re doing?". She received no answer; the woman saw that the respondent had at that stage grasped the complainant who looked "petrified" and was trying to scream and was struggling.

Having driven the car about 300 metres, the respondent stopped it and told the complainant to get out and to go into some mangroves which were in the vicinity; to encourage compliance with this direction, he pushed the complainant in front of him. Then he told the complainant to take off his clothes and the complainant did so. He touched the complainant on his genitals and swore at him, then kissed him on the lips, putting his tongue in the complainant’s mouth and spitting into the complainant’s mouth. He made the complainant swallow the spittle and then kissed and licked the complainant’s chest. He told the complainant to turn around and bend over, then got up and slapped and punched the complainant, calling him "a fucking bitch". He then put his finger into the complainant’s anus, licked the finger and began to masturbate himself. He then forced the complainant to suck his penis; the complainant said that during this process he started to choke; the respondent’s hands were on the back of the complainant’s head, preventing him from moving his head away.

Next, the respondent attempted to put his penis into the complainant’s anus. He told the complainant to stop shaking and began to punch and slap him, telling him that if he didn’t stop shaking he would break his jaw. The respondent used a backwards and forwards motion in an attempt to penetrate the complainant’s anus, which attempt the complainant said hurt him very much. He then kissed and bit the complainant on his back. Then there was a second attempt to penetrate the complainant’s anus; the respondent made the complainant bend over and slowly move back on his penis. The complainant said that he was frightened and thought he would be killed.

By this time help came; the details of this need not be explained, except to note that when the helpers approached, the respondent pulled the complainant, who was naked and bent over, up towards him, grabbing the complainant by the throat. He threatened to cut the complainant’s throat; however, he did not have a knife. The respondent struggled with the people who had come to help and was detained. As he was being taken to the police car, he passed members of the complainant’s family, yelled obscenities at them and threatened to come back and kill them.

On the complainant’s version of events his anus was penetrated. There was a medical examination by a government medical officer on the same evening and there was found to be redness in the area of the anus and in the area of the perineum. On the following day another doctor saw the complainant and did not make any physical findings about the area of the rectum. The respondent was initially charged with sodomy; the primary judge was told by counsel for the respondent who appeared below that because of the medical evidence there were discussions between counsel, as a result of which the respondent pleaded guilty to two counts of attempted anal intercourse with a child under the age of 10 years, (counts 7 and 8). He also pleaded guilty to taking a child under the age of 16 years for immoral purposes, with a circumstance of aggravation (count 3) - an offence which carried life imprisonment - and to three counts of indecent treatment of a child under 12 years (counts 4, 5 and 6). It is submitted, and seems to me correct, that the question is whether 8 years imprisonment was sufficient for the whole group of offences.

The respondent was born on 14 December 1976. At the age of 14 he was convicted of possession of stolen goods and placed on probation and at 15 convicted of unlawful use of a motor vehicle. There followed a miscellany of offences: aggravated assault, breaking and entering, stealing, unlawful use, possession of weapons so as to cause alarm, and a number of lesser offences. He was sentenced to probation again, twice, in 1994 and later in that year was sent to prison for 9 months, being subsequently dealt with for offences constituting a breach of probation, which produced further prison sentences. He has been a remarkably persistent offender.

This is reinforced by his account of himself given to a psychiatrist, Dr C J Alroe. Dr Alroe was told by the respondent that he was frequently late for work at his first job because he was "out doing me crime". It was said that he "sees crime as others would see a profession". Discussing his mental state, Dr Alroe expressed the opinion that the respondent is "callous, indifferent and showed little remorse". He thought him to show features of hyperactivity and to be "borderline intellectually handicapped". The respondent told Dr Alroe that he is a heavy drinker of beer, on which he spends most of his money, and also uses cannabis and heroin. Dr Alroe formed the opinion that he should be described as a "biological psychopath", characteristics of which are that they are persons who have "failed to develop any kind of conscience, they are extremely impulsive and give way to every kind of whim sexual and oral. They are very dangerous recidivist offenders. Their sexual behaviour towards young male children is not the result of homosexual impulses, but rather an example of sexual behaviour towards any apparently defenceless human being regardless of sex". The concluding paragraph of Dr Alroe’s report is as follows:

"Such persons do mature later in life and this is thought to be a biological process, a maturation of brain chemistry and with it an improvement in behaviour. This is not likely to occur for another 10 years. In all the picture regarding Mr J is bleak indeed, both for him and for society."

There are also two reports from a psychologist, a Mr B W Acutt. Mr Acutt’s second opinion was that:

"Mr J is not only extremely immature and naive but that he represents a definite threat to the community in that he is suffering from a sexual disorder, namely one of paraphilias."

Mr Acutt said that the essential features of that condition are recurrent, intense sexually arousing fantasies, sexual urges or behaviour. It does not appear to me that Mr Acutt’s view is quite consistent with that of Dr Alroe, although each agrees on the important point that the respondent presents a danger. Commenting on that, a pre-sentence report prepared by R W Dutton says:-

"Assessing the level of this threat with any degree of accuracy is difficult. . . . whether Mr J acted out in a spontaneous way or had some form of plan to find a victim does not make his behaviour more or less dangerous. He is a fairly strong 18 year old man who took a 10 year old boy into an isolated spot and performed sexual acts on him. For the victim this was a very dangerous situation. If Mr J committed these acts in some intoxicated state, as he suggests, then he is likely to commit similar acts when he is in a similar state. On the other hand if he committed these acts out of some conscious plan to satisfy his urges for sex or control, then he may be just as dangerous in the future".

Mr Dutton said he agreed with Dr Alroe and Mr Acutt that the respondent "represents a threat to the community due to a very high risk of him re-offending".

The study of the human mind is not an exact science and one cannot ignore the possibility that (for example), contrary to the opinion of Dr Alroe, the danger which the respondent presents will reach a tolerable level within a period shorter than the 10 years Dr Alroe mentions. Nevertheless, it appears to me that the Court must consider the matter on the basis that the respondent presents a serious danger to the community and that he may continue to do so for a considerable period of time. It does not seem that any treatment would make a significant difference to the respondent’s behaviour. It is unlikely that the respondent would be granted parole halfway through the head sentence, but one cannot dismiss the possibility that he may serve a period significantly less than 8 years.

It is necessary to say something of the High Court’s decision in Veen (No. 2) (1988) 164 C.L.R. 465, which was discussed, and relied on, before us. Two questions which arise in the present case are:

1.         If the Court believes an offender is very likely to re-offend when released from prison, is that a proper reason for imposing a sentence longer than would have been imposed if he had not demonstrated that propensity?

2.         Assuming the answer is yes, is the principle confined to cases in which the propensity is deduced solely from the criminal record?

It is my view that the answer to the first question is yes, and to the second no. But it has to be admitted that there may be difficulty in reconciling my view with some of what was said in Veen (No. 2). There is the unequivocal statement at 477:

" . . . consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality."

This remark was made in the course of a discussion of the problem of the effect on sentence of a mental abnormality reducing murder to manslaughter, which is not the present problem; but it is not immediately easy to see why the statement I have quoted should not apply to any mental abnormality, whether or not one founding a homicide verdict based on diminished responsibility. But in the following paragraph, the principal reasons in Veen (No. 2) include:

"The antecedent criminal history is relevant . . . to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it . . . shows [the offender’s] dangerous propensity . . . ".

Although in Chivers [1993] 1 Qd.R. 432 at 437 Thomas J suggests a means of reconciling these passages, I am not satisfied that I have grasped their intended meaning.

If, say, a person guilty of unlawful killing is diagnosed as suffering from a mental abnormality - e.g. if he is a psychopath - which makes him very likely to offend again, that must be a reason for imposing a heavier penalty than would be imposed on another offender who suffers from no such abnormality, but whose circumstances are otherwise similar. From the second passage I have quoted from Veen (No. 2), one might deduce that at least where the antecedent criminal history shows a "dangerous propensity", a heavier punishment may be imposed on that account - presumably, whether or not the propensity amounts to a mental abnormality. And I cannot accept that the High Court could have intended to confine the principle, that a dangerous propensity may warrant a heavier sentence, to cases in which the propensity is deduced from the past record, as opposed to being demonstrated, as in the present case, by that record as well as by psychiatric and psychological examination.

I therefore proceed on the basis that if an offender is found, for whatever reason, to have a mental abnormality making him a danger to the community, that circumstance can justify a heavier penalty than would otherwise have been imposed. That is I think consistent with the terms of s. 9(1)(e) of the Penalties and Sentences Act 1992, which permits the imposition of sentences for the purposes of protecting the Queensland community from the offender; but see Lynch (C.A. No. 132 of 1995, unreported, 2 June

1995) at p. 5.

It was suggested on behalf of the Attorney that a more appropriate sentence would be 12 years. Although Dr Alroe says in effect that the danger the respondent presents may lessen in 10 years, one can hardly treat this as a precise estimate; it may be that at the end of 10 years or 12 years the respondent will still appear to be dangerous. Experience shows that professional predictions as to the likelihood that a particular person will re-offend seriously may well be falsified by the course of events.

The maximum penalty which could have been imposed was life imprisonment, that being the penalty applicable to the offence of taking away a child under the age of 16 for the purpose of doing an act in relation to him which constituted an offence under s. 208 or 210 (count 3). In truth the most serious aspect of the respondent’s behaviour was the subsequent treatment of the child, not the initial taking away; the offences of attempting to have unlawful anal intercourse each attracted a sentence of 14 years imprisonment and it seems proper in the circumstances to consider the heinousness of the offences in the light of that maximum. Keeping in mind the age of the offender (18), and the fact that he has pleaded guilty, a sentence of 8 years imprisonment appears to be a substantial punishment for attempted anal intercourse, even in the circumstances which accompanied the attempts here.

It is true that when one takes those circumstances into account, these are seen to be bad examples of the principal offence - attempted anal intercourse - but not so bad as to be likely to attract a sentence at or near the maximum. One would expect that treatment to be reserved for cases worse than these - for example, where there is a substantial history of sexual and in particular violent sexual offences, and a mature offender. Some might think that, particularly in view of the psychiatrist’s mention of 10 years, a sentence of about that length would have been appropriate; but it is my conclusion that one cannot, on these facts, justify the view that an 8 year sentence is inadequate. The sentence of 12 years imprisonment sought by the appellant would in my view be disproportionate to the gravity of the offences, alarming though they undoubtedly are.

In my opinion special consideration should be given to the risk of re-offending, when and if an application is made for parole, in view of expert opinion that the respondent presently constitutes a serious danger to the community.

We also have before us an application by J for leave to appeal against sentence. For reasons which are explained by the Chief Justice, this was not pressed and must be refused.

I agree that orders should be made in the form proposed by the Chief Justice.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment Delivered 18 October 1996

I have read the reasons for judgment prepared by each of the Chief Justice and Mr Justice Pincus. I agree that the application by J for leave to appeal against sentence must be dismissed. However I do not agree that the Attorney-General's appeal against sentence should be dismissed. I shall therefore state my reasons for the conclusions to which I have come.

I begin by setting out the charges which are the subject of the appeal, the maximum sentence for each and the actual sentence.

Charge	Maximum	Actual
Count 3	Life Imprisonment	8 years
Count 4	10 years	8 years
Count 5	10 years	8 years
Count 6	10 years	8 years
Count 7	14 years	8 years
Count 8	14 years	8 years

I should at this stage say that I accept the statement of facts relevant to each offence as appearing in the judgment of Mr Justice Pincus.

The learned sentencing judge's remarks were short and I set them out:-

"HIS HONOUR: These matters are obviously very serious matters and very disturbing matters, from society's point of view. The detailed reports which have been refurnished to me are not particularly encouraging, but no doubt careful note of their contents will be taken by the relevant authorities. I wouldn't be doing my duty if I didn't regard this case as a very serious one.

I order that in respect of Counts 3 to 8 inclusive the prisoner be imprisoned for a period of eight years, and in respect of Counts 1 and 2 he be imprisoned for a period of one year. All terms to be served concurrently. I make no further order in respect of the matter.

...
I order that the claim for compensation be adjourned to the Gladstone Registry."

I have set out these remarks in full because nowhere does His Honour mention specific detail of any of the reports which were before him and, more particularly, the opinions of Dr Alroe a psychiatrist and Mr Acutt the psychologist. I now refer to Dr Alroe's opinions which were:-

(a)the respondent J is best described as a "biological psychopath". He went on to say "In American parlance he would be regarded as an Antisocial Personality and in the International compendia a Dysocial Personality. The biological adjective denotes the presence in the history of early on-set of features suggestive of minimal brain damage with neurological features and a history of aggression before age 7, Attention Deficit Disorder with Hyperactivity, severe learning difficulties, low intelligence and poor impulse control".

(b)biological psychopaths "have failed to develop any kind of conscience, are extremely impulsive and give way to every kind of whim sexual and oral".

(c)biological psychopaths "are very dangerous recidivist offenders" and "their sexual behaviour towards young male children is not the result of homosexual impulses but rather an example of sexual behaviour towards any apparently defenceless human being regardless of sex".

(d)"Such persons do mature later in life and this is thought to be a biological process, a maturation of brain chemistry and with it an improvement in behaviour. This is not likely to occur for another ten years. In all the picture regarding Mr J is bleak indeed, both for him and for society".

(the underlining is mine).

I have stressed this portion of Dr Alroe's opinion because it is unchallenged by any other psychiatric evidence and is a very clear indication of the minimum time, from 6/11/95 - the date of Dr Alroe's report - before one could hope for any improvement in the respondent J's behaviour. In the meantime the respondent will continue as a biological psychopath with all the above aspects of behaviour which I have extracted from Dr Alroe's report.

Apart from Dr Alroe's opinion, the learned sentencing judge had two reports from Mr Bruce Acutt a consultant psychologist. His second report is dated 30 October 1995 and in it Mr Acutt said:-

"I am now of the opinion that Mr J is not only extremely immature and naive but that he represents a definite threat to the community in that he is suffering from a sexual disorder, namely one of the paraphilias. I do not believe that the offences to which Mr J now finds himself awaiting sentence were committed solely as the result of substance intoxication or because of a psychopathology such as a manic episode or schizophrenia, in which case there would be a decrease in judgment, social skills or impulse control such that the individual engages in unusual sexual behaviour. It now seems quite clear that unusual sexual behaviour is Mr J's preferred pattern of sexual behaviour. Mr J's offending behaviour tends to have elements of a number of paraphilia sub-types incorporated in it and is probably best described as a paraphilia. The essential features of a paraphilia are current intense sexual arousing fantasies, sexual urges or behaviour, generally involving (1) non-human objects; (2) the suffering or humiliation of one's self or one's partner; or (3) children or other non-consenting persons that occur over a period of at least 6 months. Behaviour, sexual urges or fantasies should also cause clinically significant distress or impairment in social, occupational or other important areas of functioning.

As I have noted above, I am of the opinion that Mr J represents a significant threat to the community and until such time as he displays some insight into his offending behaviour and the relevant authorities feel comfortable that he has taken steps to address the issues identified in my report, he should be incarcerated and ordered to undertake intense counselling/ therapy. I appreciate that programmes such as the Moreton Centre's sexual offenders programme require that the participants acknowledge their offending behaviour and show or display a desire to change. Mr J has currently not expressed such a desire."

Mr Acutt's opinion does not mention the 10 year period referred to by Dr Alroe - indeed his opinions have a slightly different basis from that propounded by Dr Alroe although both regard the respondent as immature, albeit in varying degrees.

Both agree that the respondent represents a significant threat to the community with Dr Alroe labelling biological psychopaths as "very dangerous recidivist offenders".

Mr Acutt considers that the respondent should be incarcerated and ordered to undertake intense counselling/therapy and he has noted that the respondent (as at 30/10/95 - the date of his second report) had not expressed a desire to change his offending behaviour.

On my reading of Mr Acutt's reports, incarceration of the respondent should be indefinite in the sense that it lasts until such time as the respondent displays some insight into his offending behaviour and the relevant authorities feel comfortable that he has taken steps to address the issues identified in Mr Acutt's report.

The learned sentencing judge had before him a third report - from Mr R.W. Dutton the Area Manager of the Rockhampton Community Corrections Office of the Queensland Corrective Services Commission. Mr Dutton's report was written after he had read the reports of Dr Alroe and Mr Acutt. He said:-

"This writer agrees with the two professional reports that he represents a threat to the community due to the very high risk of him re-offending."

In my respectful view the failure by the learned sentencing judge to mention in his sentencing comments any of the above matters, particularly those referred by Dr Alroe and Mr Acutt has led me to conclude that the exercise of the sentencing discretion has miscarried and that in the circumstances of this case it is open to this court to exercise that discretion. This court does not know what, if any, aspects of the reports His Honour took into account when imposing the sentence. He described them as "detailed reports" and "not particularly encouraging". He referred also to his hope that "no doubt careful note of their contents will be taken by the relevant authorities".

I should add that the above criticism of the sentencing comments is not intended to mean that in all cases of sentence, the sentencing body cannot give short succinct sentencing comments. The amount of comment in each case is a matter for the sentencing body but in my view where there is a failure to mention any matter which is obviously important and must be considered by the sentencing body in the exercise of its sentencing discretion, then such failure is more likely to lead to an Appellate Court concluding that the exercise of the sentencing discretion has miscarried. Basically the problem arises from a failure to give adequate reasons. I should also state that if I should be wrong in the above view as to the circumstances in which the exercise of the sentencing discretion has miscarried, nevertheless, upon the facts before the learned sentencing judge, at least for count 3, the 8 years sentence, at least for count 3, was unreasonable and this Court can and should infer that in some way the learned sentencing judge failed properly to exercise his sentencing discretion (House v. The King (1936) 55CLR 499 at 505 - applied in R v. Melano, ex parte Attorney-General (1995) 2 Qd.R 186).

It will be apparent from what I have already said that the 8 years sentences imposed (concurrently) on 11/12/95 are considerably less than the 10 year period referred to by Dr Alroe. The respondent was 18 years old at the time of each of these convictions and sentences. For one barely an adult, he had a criminal history which Dr Alroe correctly describes as extensive from the age of 17 onwards.

His criminal history dating from 29/5/91 shows regular appearances in court. The learned sentencing judge had this criminal history before him. From 29 May 1991 to 27 April 1994 there were 6 appearances in Childrens Courts - one in New South Wales and the rest in Gympie and Noosa on various charges. None of these might properly be called offences of violence and I ignore these offences. On 27 April 1994 he appeared in the Noosa Magistrates Court on a charge of escaping legal custody on 28 February 1994 and a charge of stealing on the same day. He was treated as a child for the escape offence and was put on probation for 12 months and ordered to perform 100 hours unpaid community service.

On 23 June 1994 he appeared in the Noosa Magistrates Court on a number of charges one of which was aggravated assault on a child under the age of 16 years and another of which was possession of a replica weapon in a manner likely to cause alarm to any other person. The other charges were breaking and entering a dwelling-house with intent, stealing, unlawful use of a motor vehicle, a further charge of stealing and two charges of breaking and entering a place with intent. These offences were committed between 21 May 1994 and 14 June 1994. He was placed on probation for 3 years and ordered to perform unpaid community service for 240 hours as well as paying certain restitution and compensation.

He next appeared in the Gympie Magistrates Court on 25 October 1994 and on the same day appeared in the Noosa Magistrates Court. These offences (six in all) included breaking and entering and stealing, stealing, unlawful use of a motor vehicle and attempted breaking and entry with intent; he was sentenced to terms of imprisonment ranging up to 9 months.

On 24 November 1994 he appeared in the Noosa Magistrates Court on a charge of breach of the probation order made on 23 June 1994 - these breaches occurred because of two offences of stealing, two offences of breaking and entering a place, one of possession of a weapon to cause alarm, one of unlawful use of a motor vehicle, one of aggravated assault and one of breaking and entering a dwelling. The respondent was sentenced to terms of imprisonment ranging up to 5 months and the probation order was revoked.

The six sentences each of 8 years imposed on the respondent did not differentiate the charge in count 3 for which the maximum penalty was life imprisonment from counts 4, 5 and 6 where the maximum penalty was 10 years and counts 7 and 8 where the maximum was 14 years.

Although each offence has received the same penalty, that penalty - 8 years - does not reflect the distinction which the legislature has stated as to the way it views the seriousness of each offence - particularly the offence in count 3. I am concerned that the imposition of 8 years imprisonment for each of these offences does not give sufficient weight to the opinions of Dr Alroe and Mr Acutt as to the need to protect society - nor does it bring home the actual deterrent aspect relative to count 3.

In Veen and The Queen (No 2) (1988) 164 CLR 465, Mason CJ., Brennan, Dawson and

Toohey JJ. in their joint judgment said (at pp.476-7):-
"However, sentencing is not a purely logical exercise, and the troublesome nature of the

sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be attempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality."

In Veen (No 2) where life imprisonment had been imposed on a plea of guilty to

manslaughter on the ground of diminished responsibility, the above four judges said (at p.477):-
"[the sentencing judge] was entitled to attach great weight to the protection of society as a

factor in that determination."

I should add that the appellant in Veen (No 2) had, on a prior occasion killed a person by stabbing and after a trial on a murder charge, was convicted of manslaughter because he had been suffering from "such abnormality of mind ... as substantially impaired his mental responsibility". He was sentenced to life imprisonment and the High Court reduced this to 12 years (Veen v. The Queen (No 2)) 1979 (143 CLR at 458. Veen was released on licence on 20 January 1983 and on 27 October 1983 killed another man again by stabbing. It was this killing which is the subject of Veen (No 2). In Veen (No 2) the same four judges went on to say (at p. 477):-

"There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: ... The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

In my view the antecedent criminal history of this respondent is relevant because it shows that in the offences to which he pleaded guilty and for which he was sentenced on 11 December 1995 the respondent has manifested a continuing attitude of disobedience to the law. Further, to adopt the words of the above judges - it shows his dangerous propensity.

Care must be taken to ensure that when considering the aspect of the respondent's danger to society, any sentence imposed must not be more severe than would have been imposed if the respondent had not been suffering from being a biological psychopath or the condition described by Mr Acutt. On count 3, which in my view was the most serious of the offences, the maximum sentence to which the respondent was exposed was life imprisonment. There can be no tariff for cases where life imprisonment is the maximum penalty imposed. Such cases can have "too big a range of seriousness" for a tariff. (cf. Pight v. The Queen (1995) 64 SASR 215 at p.218).

In The Queen v. Robert Raymond Day (CA No 364 of 1990) (unreported) - judgment delivered 26 March 1991 - the Court of Criminal Appeal refused an application for leave to appeal against a sentence of life imprisonment for attempted murder. Each member of the court gave separate reasons. The facts in that case (as taken from the judgment of Mr Justice Thomas) were:-

"The applicant met and befriended a tourist near the Transit Centre. He took him to a remote area in the bush near Redland Bay and then attempted to kill him by hitting him over the head with a branch. The tourist fell into the swamp and the applicant then held his head under the water. The tourist eventually managed to escape despite severe wounds to the back of the head. The applicant disappeared taking the tourist's property. Robbery seems to have been the primary motive for the attack."

The applicant there had a serious criminal record including offences of violence, theft and rape; his last conviction was for the rape of a 55 year old invalid crippled woman during which a knife was used and resulted in a 15 year sentence in 1971. He was released from gaol in 1982 and committed no offence until the attempted murder at the end of 1988. There was psychiatric evidence showing that the applicant had been diagnosed as an "aggressive psychopath based on brain damage". The psychiatric evidence showed the psychiatrist considered the applicant to be a person with a psychopathic personality disorder but that psychiatric illness was absent. The psychiatrist's report included the following:-

"It is obvious that he is continuing to behave in the same antisocial manner as he did when he was younger. On this occasion he went further and attempted to kill the victim. There is a lack of genuine remorse for his actions which is in keeping with the reaction of a psychopathic personality. It is typical of this disorder. He had considerable potential for violent behaviour both with respect to sexual and aggressive impulses ... His behaviour on this occasion and in the past has been such that I can only conclude that he is a dangerous man. If past behaviour is the best guide to future behaviour and when we are dealing with behaviour of this type I believe it is then he is a high risk for continuing to reoffend in the same manner in the foreseeable future. The is no psychiatric treatment that is likely to change this man for the better it is a case where society has to be protected from him."

I do not suggest that the respondent is a person for whom a sentence of life imprisonment should be seriously considered and I say that in the light of the opinion expressed by Dr Alroe as to maturation being likely to occur within 10 years. Nevertheless, there are degrees of similarity between the behaviour of Day and the behaviour of the respondent; the evidence in each case shows that both are impulsive, both have a psychopathic personality, both are dangerous, both have considerable potential for violent behaviour and there is a high risk of reoffending. In Day's case no psychiatric treatment was available but in the present respondent's case the passage of time may well, in Dr Alroe's opinion, bring an improvement in behaviour. Whether that forecast will prove accurate only time will tell. Day's prior criminal history, at least from the point of view of violence is worse than the respondents. Day was 37 years old when sentenced. I have referred to the decision in Day because in my view it is helpful to consider the case in conjunction with R v. Chivers (1993) 1 QdR 432 - judgments in both these cases were delivered on the same day. In the result, one is left with the option of a finite sentence only for this respondent. There are as I have said the differing opinions of Dr Alroe and Mr Acutt, the latter suggesting an indefinite period of time which might be shortened for the reasons stated in the above quoted extracts from his report. If the appeal is dismissed, the respondent is eligible to apply for parole after serving half of the 8 year term. If he does not receive any parole but serves the full term, he will be released into the community before the 10 year period referred to by Dr Alroe has expired. On Dr Alroe's view he will still then be a very dangerous recidivist offender. In my view, the sentence for count 3 should be such that it reflects the need to protect society. The sentence should be structured so that the respondent's eligibility for parole is not impaired and at the same time permit the parole granting body opportunity to consider that application and take account of Dr Alroe's opinion if it wishes to do so. It will no doubt have more up to date opinions.

I have concluded that sentences should be imposed which reflect this Court giving great weight to the need to protect society at least for 10 years and also take into account the respondent's criminal history. I would allow the appeal by the Attorney-General and set aside the sentence of 8 years imprisonment on each of count 3 and counts 7 and 8.

I would in lieu sentence the respondent on count 3 to imprisonment for 12 years and on each of counts 7 and 8 to imprisonment for 10 years and declare that all periods of imprisonment began on 2 April 1995.