Thompson v The Queen
[2002] WASCA 230
•25 JULY 2002
THOMPSON -v- THE QUEEN [2002] WASCA 230
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 230 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:57/2001 | 25 JULY 2002 | |
| Coram: | MURRAY J TEMPLEMAN J McKECHNIE J | 25/07/02 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | JASON ANTHONY THOMPSON THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against sentence Appeal against order for indefinite imprisonment and ineligibility for parole |
Legislation: | Sentencing Act 1995 (WA), s 98 |
Case References: | Garlett v The Queen [2000] WASCA 72 McGarry v The Queen (2001) 184 ALR 225 Thompson v The Queen (1992) 8 WAR 387 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : THOMPSON -v- THE QUEEN [2002] WASCA 230 CORAM : MURRAY J
- TEMPLEMAN J
McKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against sentence - Appeal against order for indefinite imprisonment and ineligibility for parole
Legislation:
Sentencing Act 1995 (WA), s 98
Result:
Appeal dismissed
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Category: A
Representation:
Counsel:
Applicant : Mr M R Gunning
Respondent : Mr J Mactaggart
Solicitors:
Applicant : Gunning
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Garlett v The Queen [2000] WASCA 72
McGarry v The Queen (2001) 184 ALR 225
Thompson v The Queen (1992) 8 WAR 387
Case(s) also cited:
Nil
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1 TEMPLEMAN J: This is an appeal against a sentence imposed on Jason Anthony Thompson by her Honour Judge Yeats in the District Court on 16 March 2001. The sentence included an order for indefinite imprisonment pursuant to s 98 of the Sentencing Ac 1995 (WA). An order for indefinite imprisonment can be made only if a superior court sentences an offender for an indictable offence to a term of imprisonment, does not suspend that imprisonment and does not make a parole eligibility order in respect of that term. The challenge to the order made by Judge Yeats is both to her Honour's refusal to make a parole eligibility order and the order for indefinite imprisonment.
2 There is quite a history to this matter because the applicant was sentenced previously by Judge Yeats to a term of imprisonment and an order for an indefinite imprisonment was made. That sentence was appealed to this Court which upheld it and from there to the High Court which allowed the appeal.
3 The reason given by the majority of the High Court for allowing the earlier appeal was that the pre-sentence and psychological reports relied upon by Judge Yeats were prepared in some haste, with the consequence that the psychological assessment which was carried out was not comprehensive.
4 That being so, the High Court remitted the matter back to the Court of Criminal Appeal without expressing any view as to whether this Court should deal with the matter or could or should remit it to the sentencing judge. In the event, the Court of Criminal Appeal decided that the matter should be remitted to Judge Yeats. That was done. Her Honour heard further argument on 18 and 19 December 2000 and then reserved her decision for some 3 months, delivering it on 16 March 2001.
5 It was an extremely comprehensive decision which, as Mr Gunning says who appears today for the applicant, covered all the relevant points. However, Mr Gunning submits that there are errors in the judgment. Before turning to the grounds of appeal and Mr Gunning's submissions, it is necessary to say something about the circumstances of these offences and of the earlier offence which played a large part in her Honour's disposition of this matter.
6 The applicant was sentenced to 10 years' imprisonment for burglary and 5 years' imprisonment for attempted child stealing, those sentences to be served concurrently. The offences were committed in the early hours of 9 October 1996 when the applicant went to the home of a young girl,
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- then aged 10. He entered the home through a closed but unlocked rear door. He went to the girl's bedroom, picked her up and carried her towards the rear of the house. The girl woke up in the hallway, realised it was not her father carrying her and screamed.
7 At that point the applicant put the young girl down and fled. By the verdicts of the jury, it is clear that the jury was satisfied beyond a reasonable doubt that the offender entered the house with the intention of stealing the child.
8 The offences were well planned: it was not accidental that the offender went to the house. Over the five weeks preceding the offence, the applicant had spent time regularly at a local delicatessen frequented by the child. The applicant had located his victim; he had followed her to her home so that when he went there on the night of the offences he knew that he would find her at that house, asleep.
9 The circumstances of that offence were strikingly similar, as her Honour said in her judgment, to an offence committed in 1985, some 9 years earlier, when the applicant was 16 years of age.
10 In 1985, he entered the home of a 10-year-old girl who lived some 800 metres away from the house in which the victim of the 1996 offence lived. Again he entered through a closed but unlocked door. He picked the 10-year-old girl up, carried her from the house to a shed at the rear of the property and then committed a number of sexual offences upon her. Those briefly are the circumstances of the two offences.
11 In respect of the 1996 offences as I have said, Judge Yeats sentenced the applicant to 10 years' imprisonment without parole. In considering the appropriate sentence to be imposed on the applicant the learned judge heard evidence over a period of 2 days from a number of expert witnesses, each of whom had written reports about the applicant, gave evidence and was cross-examined before her Honour .
12 The applicant himself gave evidence and was cross-examined before her Honour about his intention to rehabilitate himself. It is clear from her Honour's comprehensive reasons that she gave careful consideration to all the evidence adduced in the sentencing exercise.
13 In her Honour's reasons she dealt with the question of parole. Although this is raised by Mr Gunning as one of the last grounds of appeal, it is in fact logically the first ground. That is because the question of the indefinite imprisonment only arises if no parole order is made.
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14 In those circumstances I turn to Judge Yeats' consideration of the question of parole. In her Honour's reasons, starting at paragraph 101, she said that if the applicant was made eligible for parole he would be eligible for release in November 2002. Her Honour pointed out that, unusually, the prognostication, as she put it, that she was required to undertake, was not about circumstances far in the future after a long prison term. If parole eligibility was ordered the applicant is close to the time when his release would need to be considered. That is because of the course which the appeal took, to the High Court and back again.
15 Her Honour then said that she relied on the evidence of the experts, especially a Ms Cull, who her Honour accepted as a highly qualified expert in sex offender treatment. Her Honour noted that all the experts agreed that the applicant was at a high risk of re-offending. Factors including cognitive deficits and drugs and alcohol abuse contributed to that; but the high risk of re-offending flowed primarily from the applicant's deviant sexual interests.
16 Judge Yeats then considered the evidence about the sex offender treatment which would be available to the applicant while in prison. Her Honour noted the consensus among the experts that the applicant's recent admissions that he had entered the child's home for sexual purposes and his recent expressions of empathy for the child did offer some cause for optimism. Without that, as her Honour pointed out, the applicant would not even be considered for admission to a sex offender treatment program. Ms Cull said the evidence offered some hope for optimism that the applicant would be assessed as suitable for treatment.
17 Her Honour also accepted Ms Cull's assessment that the applicant had the cognitive capacity to complete the program, although there were lingering concerns, which emerged from the evidence of other experts, that his cognitive impairments were such that he would require the treatment program to be delivered in a manner suitable to his needs. But neither Ms Cull nor another expert, Miss Shaw, were optimistic about the applicant's chances of successfully completing the program. Her Honour said that that is where the genuineness of the applicant's motivation would be determinative. If he was not genuine he would be removed from the program.
18 Her Honour went on to say that treatment was no panacea. She accepted Ms Cull's evidence that no-one could predict whether the risk to the community would be reduced by completing treatment. That, her
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- Honour said, would depend on what the applicant did afterwards. I then quote the next passage from her Honour's judgment:
"There would clearly be benefit to the community if the offender successfully completed sex offender treatment and were released to parole supervision. But I accept Ms Shaw's opinion that without effective sex offender treatment the offender would remain at high risk of re-offending and parole supervision would not reduce that risk. I accept the expert opinions that there may some chance of the offender being assessed suitable for sex offender treatment and entering the programme. But, I share Ms Cull's opinion when she said she was not optimistic that he would successfully complete the treatment. Both Ms Cull and Ms Shaw recognised the need for the offender to be genuine in his remorse and in his commitment for sex offender treatment. For the reasons I explained in my assessment of his credibility I do not accept that the offender is genuine. For these reasons I consider it highly unlikely that the offender will make it through the rigours of the nine month sex offender treatment programme conducted in prison. If I were to order parole eligibility the offender would be able to be released on parole at a time when he is at high risk of re-offending. The need to protect the community is factor relevant to the exercise of my discretion."
"After having regard to all of the matters in s 89(2) which affect this case I find there is nothing in the evidence that points positively towards the appropriateness of parole. On the contrary, the evidence discloses numerous matters that mitigate against parole eligibility. In these circumstances I decline to order the offender be eligible for parole."
20 In the amended grounds of appeal which we were given this morning, ground 6 contains the ground relating to the parole issue. It is in these terms:
"6. The learned sentencing Judge erred in declining to make the appellant eligible for parole given that:
(a) it was accepted there would be great benefit to the community in having him supervised upon release;
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- (b) the Appellant had indicated a willingness to change as indicated in ground one above;
(c) it was accepted that the Appellant was drug free; and
(d) the Appellant may be eligible for enrolment in the Sex Offender Treatment Program."
21 All of those matters were accepted by her Honour. I should say, in relation to the applicant's indicated willingness to change, that Judge Yeats did not accept him as genuine. Her Honour had had full opportunity to consider the applicant's credibility and genuineness - she was, after all, the trial Judge - and she not only had regard to the applicant's evidence at the trial but also to his evidence on the sentencing exercise. It was of course the case that the matter was referred to the trial Judge to re-sentence.
22 Her Honour said in par 27 of her reasons:
"It was interesting to watch the accused give evidence on oath in December 2000 and to compare it with his evidence on oath at trial. His demeanour was the same at trial and at the sentencing hearing in December 2000. On both occasions he gave evidence carefully and intently, trying to convince those listening that he was telling the truth. His evidence on oath at trial has proved to be a pack of lies. I am left with no confidence in anything he said on oath in December unless it was supported by other evidence. I find that he is not a credible witness and I have formed a completely adverse view of his credibility. My greatest concern is the manipulative nature of his lying and the manner in which he lies with fervour to further whatever he sees as his best interests at a given moment."
23 That is a very scathing assessment of the applicant's credibility, but it is an assessment which this very experienced trial Judge was perfectly entitled to make, after giving it the very careful consideration which such a finding required. I emphasise that her Honour reserved judgment for some three months before publishing her decision. That part of ground 1 which asserts that the applicant had indicated a willingness to change, must therefore be read in the light of those credibility findings adverse to him. In those circumstances it seems to me that it cannot be said that there was any mis-exercise by her Honour of her discretion in declining to grant parole.
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24 I turn to the remaining grounds of the appeal, which deal with the issue of indefinite imprisonment. I will take the grounds one by one. The first ground is that the learned sentencing Judge erred in discounting the evidence of both the applicant himself and that of the expert witnesses, both oral and written, on the basis of her assessment of the applicant's credibility, such judgment being based on her impression gained from the evidence at trial in 1998.
25 As I have already said, the assessment of the applicant's credibility was one which her Honour was perfectly entitled to make and was well qualified to make as the trial and sentencing judge. The weight which her Honour placed on the evidence of the applicant and the expert witnesses was entirely a matter for her. It is clear from the comprehensive reasons which her Honour gave that she considered all the evidence very carefully. I am not persuaded that her Honour fell into any error in giving the weight to the various aspects of the evidence that her Honour did in her reasons.
26 I turn to the second ground which is that the learned sentencing judge erred in making an order for indefinite imprisonment because one or more of the requirements of s 98(2)(a) to (d) were not made out. Section 98(2) provides:
"(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;
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- (d) any other exceptional circumstances."
27 Judge Yeats went carefully through each of subparagraphs (a) to (d) and gave reasons for concluding that they were made out. I will come to the particular reasons in a moment but I will go on to ground three, which is in these terms:
"The learned sentencing judge erred in making an order for indefinite imprisonment given that the expert evidence did not establish, that when the Appellant would otherwise be released from custody, his risk of re-offending was exceptional. In particular:
(a) no, or insufficient, weight was given to expert testimony evincing the changes in the Appellant and the commitment of the Appellant to change. The evidence is as follows:
(i) The Appellant had refrained from using drugs and alcohol;
(ii) The Appellant has shown a marked change in his attitude towards his offending;
(iii) The Appellant has indicated a further willingness to change; and
(iv) The Appellant demonstrates a willingness to participate in the Sex Offender Treatment Program.
(b) Given the above evidence the learned sentencing Judge erred in failing to accept that the Appellant was sincere, such a finding being contrary to the weight of the expert evidence."
28 It is clear that grounds two and three overlap and I have therefore dealt with them together.
29 I turn to her Honour's reasons in which she dealt with the various matters raised in subparagraphs (a) to (d) of s 98(2). Under (a), the exceptional seriousness of the offence, her Honour noted that she was dealing with two offences, burglary with intent to steal the child and the attempt to steal the child. Her Honour said:
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- "The circumstances in which these offences were committed do, in my opinion, put them in the class of exceptionally serious offences."
30 Her Honour then summarised the circumstances to which I have already referred. In my view it has not been demonstrated that there is any error in that conclusion. Clearly, on any view, the offences here were exceptionally serious. Her Honour referred to the contention of the defence that the exceptional seriousness fell away because the applicant did desist when the child screamed and because he did not physically harm her. Her Honour said that those matter were to the applicant's credit but they did not diminish the exceptional seriousness of the crimes by a stranger targeting a child asleep in her own bed. Furthermore, the pre-planning moved the offences into the category of exceptional seriousness. I respectfully agree with her Honour.
31 Her Honour then dealt with the risk that the applicant would commit other indictable offences. As to that, her Honour noted that all the experts agreed that the applicant was at a high risk of re-offending. Her Honour noted the risk factors which had been set out in Ms Cull's report of 22 August 1998. They were, the recidivist nature of his sexual offending, the apparent specificity of his targeted victims by age and gender, the presence of prior planning and associated sexual arousal; his resistance to full admission of responsibility for his sexual offending behaviour; the presence of extreme levels of cognitive distortions with which he justified his behaviour, the displacement of responsibility upon alcohol and drugs, the victim's alleged behaviour in the first instance and the alleged presence of a co-offender in the current instance. Pausing there: that, of course, was an entirely untrue allegation made by the applicant. Finally, the absolute lack of empathy for his victims.
32 Her Honour referred to Ms Cull's opinion that the applicant's evidence gave hope that there were changes in some of those risk factors; particularly his admission of responsibility and certain other matters, but, as her Honour pointed out, the other risk factors remained unaffected.
33 There were then various socio-economic factors which Ms Cull identified as contributing to the risk in the case of this applicant. They were the lack of significant social and familial support, the presence of disinhibiting substances in his lifestyle and his difficulty in attempting to relinquish those behaviours, unresolved early childhood issues warranting extensive therapeutic intervention; and the presence of some cognitive and social dysfunction.
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34 Her Honour pointed out that of those factors the only change since 1998 seems to have been in the drug related matter. Ms Cull had accepted the applicant's evidence that he had finished with drugs. Her Honour said that whether that would prove to be the case if he was released into the community and whether he would be able to maintain that, and be able to avoid alcohol, were questions which have not been answered.
35 Her Honour then referred to the risk of offending in 1998, which was tied to the applicant's propensity to target children as his victims. Ms Cull had found his limited capacity to acknowledge responsibility for his grossly deviant and dangerous proclivities, alarming. His position worsened somewhat in 2000 when Ms Cull uncovered rape and pre-rape interest which had never before been acknowledged by the applicant. Her Honour quoted from Ms Cull's report about those matters and said that those assessments made it clear that the applicant's deviant sexual urges drove his offending and showed that the serious risk of re-offending is the risk of committing further indictable sexual offences.
36 I then quote from the final two paragraphs in this section of the judgment which are said to disclose an error:
"The defence suggests that I should read s 98(2)(b) as the 'exceptional' risk that the offender will commit other indictable offences. There is a basis for such a submission in the use of the words 'any other exceptional circumstances' in s 98(2)(b). This submission is also supported by the approach of the High Court and the Court of Criminal Appeal to indefinite imprisonment. I accept the defence submission and adopt it in my application of s 98(2)(b).
In this case because of the offender's deviant sexual arousal towards children and his rape and pre-rape interests and because of his attitude towards female prison officers and his special classification within the prison, and because of his recidivist offences involving 12-year-old girls and because of his cognitive deficits, I am satisfied that there is an exceptional risk in this case that the offender will commit other indictable offences of a sexual nature. By "exceptional" I mean out of the ordinary or unusual. From all the evidence presented before me I believe the offender's risk of committing further indictable sexual offences is exceptional."
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37 Her Honour's judgment was delivered before the High Court delivered its judgment in McGarry v The Queen (2001) 184 ALR 225 a case concerning the imposition of an indefinite sentence. In par 23 of the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, their Honours addressed the opening words of s 98(2): that indefinite imprisonment must not be ordered unless the court is satisfied on the balance of probabilities that on release the offender would be a danger to society, or part of it, because of one or more of the factors which are set out in subparagraphs (a) to (d). Their Honours said:
"The breadth of the matters upon which a conclusion of danger to society (or a part of it) may be based suggests that what is required is more than a bare conclusion that it is probable that the offender will commit some indictable offence in the future. That suggestion is reinforced by the use of the word 'exceptional' in the phrases 'exceptional seriousness of the offence' and 'exceptional circumstances'. More than the probability of further offending must be shown. Read as a whole, and giving due weight to the repeated reference to 'exceptional', the subsection requires attention to whether, were the offender to be released at the end of the nominal sentence, the offender would engage in conduct, the consequences of the commission of which would properly be called 'grave' or 'serious' for society as a whole, or for some part of it. Then, and only then, could it be concluded that the offender would be a 'danger to society or a part of it'."
38 I emphasise that their Honours were not there focusing on par (b) which is one of the factors to be taken into account by the court in deciding whether or not an offender would be a danger to society. That is the factor which requires a consideration of the risk that the offender will commit other indictable offences.
39 Judge Yeats dealt with the question raised by the opening words of s 98(2) in the following way:
"In considering whether those factors are of such a quality that at the end of the day, upon release I am satisfied the offender will be a constant and continuing danger to society or a part of it I accept that although proof is on the balance of probabilities as provided by the legislature in s 98, nonetheless, because of the very serious implications of my decision for the offender, I should act 'with much care and caution' before making a finding
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- adverse to the offender (Briginshaw v Briginshaw (1938) 60 CLR 336 per Latham CJ at 347).
The defence submitted that there is a well established difficulty in the ability to predict dangerousness. Even the protagonists of indefinite detention acknowledge that predictive techniques are flawed and that 'false positives' are commonplace."
40 Her Honour then referred to various learned articles. She pointed out that one of the learned authors noted that research studies had pointed consistently to the twin conclusions that assessments of dangerousness are more likely to be wrong than right, and that errors largely result from the exercise of excessive caution. In other words, there is a tendency to over-prediction. Her Honour went on:
"The research supports the defence submission that the court must be vigilant and sparing in its application of s 98. I certainly accept that proposition. It is one of the most difficult tasks I have faced as a Judge in making the judgment I am required to make in this case. Because of the tendency to over predict dangerousness, this is not a case where the court can rely entirely on experts' opinions. Both Ms Cull and Ms Shaw relied on standardised instruments to make their predictions of dangerousness. Each conceded that such instruments are not foolproof. I do accept Ms Cull's approach however that the objective determination of risk based on an imperfect instrument is preferable to purely subjective assessment. In my case I must proceed with unusual care and carefully scrutinise the factors as I found them in step 1. My finding cannot simply rely on the opinions of experts. I have done that in this case. Having done that I am satisfied on the balance of probabilities applying the Briginshaw standard that when the offender would otherwise be released from custody in respect of his 10-year term that he will be so likely to commit further crimes of violence (including sexual offences) that he constitutes a constant danger to the community."
41 Her Honour, of course, did not have the benefit of the judgment in McGarry and her Honour referred, as I have said, to the exceptional risk of re-offending in the context of factor (b). However when I compare her Honour's conclusion, that on the balance of probabilities the applicant would be a danger to society, against what was said by the majority of the High Court in McGarry, I conclude that what her Honour said was to the
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- same effect. That is, her Honour was of the view, as I read her reasons, that there was more than a probability of further offending. Her Honour did not simply say on the balance of probabilities that she thought the applicant would re-offend.
42 Her Honour said, having regard to Briginshaw and the standard which that case imposes that the applicant would be so likely to commit further crimes of violence, including sexual offences, that he constitutes a constant danger to the community. That, in my view, satisfies the requirements which are established by the High Court in McGarry. I am not persuaded, therefore, that her Honour fell into error in the way in which she approached the question of the balance of probabilities as required by section 98(2).
43 That being so it seems to me that the other grounds of appeal tend to fall away. In particular, insofar as the grounds of appeal rely on the applicant's evidence and his intention to reform, to use the word generally, I emphasise her Honour's adverse credibility finding.
44 For completeness I will refer to the two final grounds of appeal in relation to indefinite sentence. Ground four is as follows:
"The learned sentencing Judge erred in making an order for indefinite imprisonment on the basis that the Appellant's circumstances, although serious, were not sufficiently 'exceptional' to justify the indefinite imprisonment."
45 I have already referred to her Honour's conclusion that the applicant constitutes a constant danger to the community and her Honour's finding that the offence was exceptionally serious.
46 Ground five, is in the following terms:
"Even if one or more of the factors referred to in s 98 was made out, the danger posed by the Applicant, to society was not of sufficient magnitude to warrant the imposition of an indefinite sentence."
47 Given Judge Yeats' conclusion, which I regard as entirely justified, I consider that ground to be without merit. For completeness, I refer to her Honour's conclusions in relation to factors (c) and (d) of s 98(2): (c) being "the character of the applicant and in particular - any psychological, psychiatrical, medical condition affecting the offender; and the number
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- and seriousness of other offences of which the offender has been convicted". As to that her Honour said:
"It is apparent from my assessment of the offender's credibility that I consider him to be dishonest and deceitful, not a man of his word. I take account again of his antecedents as I assessed them when considering eligibility for parole. I accept Dr Pougher's evidence that the offender's past psychotic disorder was drug induced and that he does not presently display any signs of a psychotic disorder. That is supported by the evidence of Dr Kay. I also accept the evidence of Dr Hayward and of Ms Coxon concerning his cognitive impairments.
In assessing his character I find some aspects of his behaviour in prison to be evidence of his continuing sexual deviance. I include the evidence of his masturbating in open view while waiting to see the doctor at the prison health service. I accept Ms Cull's assessment of his attitude toward female prison officers 'flaunting themselves' as a classic example of a distorted mind set on his part.
Another matter of great concern was the offender's acknowledgment in October 2000 of a range of rape or pre-rape fantasies many of which involve sexual arousal and pleasure from inflicting pain on others."
"In this case it is impossible to avoid the exceptional circumstances of the offender's prior conduct in 1985 when he committed offences which were strikingly similar to his 1996 offending. To have targeted a young girl in this terrible way for sexual deviant purposes on two occasions 10 years apart is, in my view, a very exceptional circumstance."
49 I emphasise that s 98(2) empowers the court to make an order for indefinite imprisonment because one or more of factors (a) to (d) is present. In other words, any one of those factors, if established, would warrant indefinite imprisonment if on the balance of probabilities (as explained in McGarry) the applicant would be a danger to society, or a part of it.
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50 Her Honour found that all of those factors were made out. Even if her Honour was wrong in one of them, and in my view her Honour was not wrong, the others would still justify the order for indefinite imprisonment and would justify the conclusion which her Honour reached: that on the balance of probabilities the offender is a continuing danger to society. For all those reasons, I am not persuaded that any error has been shown on the part of the learned sentencing judge and I would dismiss the application for leave to appeal.
51 MURRAY J: I agree, and for the reasons which his Honour has just provided. In view of the importance of the matter, I should perhaps make just a few brief observations in addition.
52 As Templeman J has said, the matter came before Yeats DCJ on 16 March 2001 as a result of a history to which reference has been made. It was not then her task, as a result of that history, to reconsider or further deal with the finite terms which had been imposed for the two offences in question - the period of 10 years imprisonment imposed for the offence of burglary and the concurrent 5-year term imposed for the attempted child stealing.
53 There were two distinct issues which, as a result of the appellate process through the High Court and back to the Court of Criminal Appeal, this Court had remitted back to her Honour. One was the question of parole eligibility and the second was the question of the order of indefinite imprisonment which had been made originally when the applicant was sentenced on 20 March 1998.
54 If I may, with respect, say so, her Honour approached the reconsideration of those issues with exemplary care. She approached it completely afresh and an extensive hearing was held on 18 and 19 December 2000. In my opinion, the conclusions in relation to the credibility of witnesses, particularly, the credibility of the applicant as a witness, to which her Honour came were conclusions which were well open to her and there can be no interference with that aspect of her Honour's judgment, in my respectful opinion. Nor can there be any question raised about her Honour's reliance upon an extensive body of expert opinion and, in particular, that of the psychologist, Ms Cull.
55 The central findings to which her Honour came, as I have said, in my opinion upon evidence which made those findings well open to her, were concerned with the very serious nature of the offences in the circumstances which have been described, in particular the premeditation
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- or planning of the offence and the intention to sexually interfere with a 10-year-old child with which the attempted child stealing was accompanied.
56 Her Honour focused attention upon the history and the antecedents of the applicant and she continued her consideration of that, appropriately, by referring to any changes in his circumstances and attitudes which had become evident in the period between when he was initially sentenced and when he now came before her Honour on a second occasion.
57 Her Honour properly focused attention upon the recidivism involved in the offences before her, having regard to the strikingly similar offences committed in 1985. In that case the 10-year-old child had been actually subjected to serious sexual offences.
58 Her Honour considered whether the applicant's circumstances were such that a favourable finding was open as to whether his remorse was genuine, as to whether there were prospects of addressing the issues which had impacted upon him in relation to his offending and as to the risk of him further offending. It was open to her Honour to make the finding that she did, that it was unlikely that the applicant would have a capacity in future to successfully address those issues and in particular to successfully complete sex offender treatment.
59 In those circumstances it was well open to her Honour, in my opinion, to find that the applicant represented a very high risk to that part of the community which would be the victims of further serious sexual offences which he was at high risk of committing.
60 As to eligibility for parole, her Honour directed herself to each element of the matters to be considered as contained in the Sentencing Act 1995 (WA), s 89(2). Her Honour directed herself to the leading authority in this court, Thompson v The Queen (1992) 8 WAR 387 and she came to the conclusion that there was nothing to sufficiently open the door to the favourable exercise of her discretion to make an order of parole eligibility. That she declined to do so, in my respectful opinion, cannot be open to challenge upon the basis that any error of an accepted kind in the exercise of the discretion can be demonstrated.
61 As to the question of the indeterminate term and the order in that regard, again her Honour directed herself to the terms of s 98(2). Her Honour quoted the then current authorities which demonstrated the exceptional character of the order which she was called upon to consider and in my respectful opinion, in agreement with the view expressed by
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- Templeman J, her Honour's approach to it was entirely in line with the more recent decision of the High Court in McGarry v The Queen (2001) 184 ALR 225.
62 In other words, her Honour in this respect also, in my respectful opinion, approached the task before her with a very clear and appropriate view of the nature of the discretion posed by s 98, the necessity to only exercise it in the way of making an order under that section in a very clear case and the necessity not to make that order unless the relevant danger to society or a part of it was demonstrated as an exceptional circumstance clearly established.
63 In my opinion her Honour approached the question before her in relation to that section with a clear and proper view of the law, and upon the basis of evidence which it was clear to her to accept, and having made findings which were well open. I can detect no error in her Honour's approach to that question also and so in my opinion also the appropriate order in this case should be that the appeal be dismissed.
64 McKECHNIE J: I agree with the reasons for judgment expressed by Templeman J and also with the further reasons expressed by the presiding Judge. I just want to deal with one aspect which was argued by Mr Gunning who appears on instructions from the Unrepresented Criminal Appellants Scheme.
65 Yeats DCJ correctly approached the Sentencing Act, s 98(2)(b) by holding that it was necessary for her to find that there was an exceptional risk that the offender will commit other indictable offences. Having regard to the judgment in McGarry (a case decided after Judge Yeats sentenced the applicant), the test she applied at par 125 of her judgment in defining "exceptional" as meaning "out of the ordinary or unusual" may be expressed as too low a standard.
66 However, Yeats DCJ noted that all the experts agreed that the offender is at high risk of re-offending. She set out the risk factors, holding that the assessment made clear that it is the offender's deviant sexual urges which drive his offending and show the serious risk of re-offending is the risk of committing further sexual offences.
67 I have no hesitation in applying the adjectives "severe", "extreme", "grave" or "serious" to the applicant's risk of re-offending having regard to the evidence presented to the judge and which she summarised at par 125:
(Page 19)
- "In this case because of the offender's deviant sexual arousal towards children and his rape and pre-rape interests and because of his attitude towards female prison officers and his special classification within the prison and because of his recidivist offences involving 12-year-old girls and because of his cognitive deficit …."
- Furthermore, the Judge applied what she referred to as "Step 2" by acting with much care and caution in the passage referred to by Templeman J and not on a bare probability; cf McGarry.
68 The Judge asked the question posed by Anderson J in Garlett v The Queen [2000] WASCA 72: "Is the magnitude of the danger such that it justifies the exceptional step of imposing an indefinite sentence?" She described this as "Step 3". She responded thereafter and at par 137 said:
"Because of the enormity of the risk the offender poses without sex offender treatment I am satisfied that this is one of those very exceptional and rare cases where I should order indefinite imprisonment. …"
69 At par 138:
"Given the enormity of the risk of further sexual offences posed by this offender, the very exceptional procedure in s 98 is, in my view, necessary in this case."
70 Therefore, I specifically agree with Templeman J that, notwithstanding the definition of "exceptional" in par 125, the learned Judge in fact applied a definition of "exceptional" in line with McGarry. In any event, having regard to the evidence before her, if she did err in adopting a lower definition of "extreme" in respect of the Sentencing Act s 98(2)(b) than was warranted there has been no miscarriage of justice. So I, too, would refuse leave to appeal and dismiss the appeal.
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