Veen v The Queen (No 2)

[1988] HCA 14

HIGH COURT OF AUSTRALIA

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

VEEN v. THE QUEEN (No. 2)

(1988) 164 CLR 465

29 March 1988

Criminal Law

Criminal Law—Manslaughter—Diminished responsibility—Sentence—Principles—Protection of community—Preventive detention—Previous criminal history—Relevance to sentencing.

Decisions

MASON C.J., BRENNAN, DAWSON AND TOOHEY JJ. Early in 1971 the applicant, then almost 16, was apprehended by the police in Hyde Park in Sydney. He was already a homosexual prostitute. He was taken to the Darlinghurst Police Station where he pulled a knife out of his pocket and stabbed himself, puncturing a lung. No charge was laid against him on this occasion. In October 1971, an incident occurred in the boarding house where he was living in Albury, after he had been drinking. His landlady tried to get him to go to bed but he took a kitchen knife and lunged at the landlady. She escaped and attempted to run away. He ran after her and stabbed her three times in the back and once in the chest. On this occasion he appeared before the Children's Court and was convicted of malicious wounding and committed to an institution generally.

2. In 1975 the applicant, then aged 20, was picked up as a homosexual prostitute by a person with whom he spent the weekend. After the two had been drinking heavily, the applicant asked for payment. The other man refused saying: "No, you black bastards are all the same, always wanting handouts." (The applicant is an Aboriginal.) The applicant took a sharp, pointed knife from a kitchen rack and stabbed the other man to death, leaving the body with over 50 stab wounds. He was charged with murder but convicted of manslaughter by a jury. The verdict was based on s.23A(1) of the Crimes Act 1900 (N.S.W.), the jury being satisfied that he was suffering from "such abnormality of mind ... as substantially impaired his mental responsibility". Rath J. sentenced him to life imprisonment. His Honour came to the conclusion that, although life imprisonment was not otherwise appropriate for the crime, a life sentence ought to be imposed for the protection of the community by reason of the applicant's uncontrollable urges. His application to the Court of Criminal Appeal was unsuccessful but an appeal to this Court succeeded: Veen v. The Queen (1979) 143 CLR 458 (hereafter "Veen (No. 1)"). The majority of the Court were of the opinion that the sentence of life imprisonment should be quashed and that a sentence of 12 years imprisonment should be substituted. He was sentenced accordingly but was released on licence pursuant to s.463 of the Crimes Act on 20 January 1983.

3. On 27 October 1983 he killed Paul Edmund Hoson whom he stabbed repeatedly with a bread knife. Hoson was also a homosexual. He had invited Veen to his flat for the purpose of homosexual activity. Veen was again charged with murder but the Crown accepted a plea of guilty to manslaughter, again on the grounds of diminished responsibility. Hunt J. sentenced him to life imprisonment. He said:

" I am satisfied that the prisoner is potentially or indeed, certainly - a continuing danger to society when released, in that he is likely to kill again or to inflict serious injury upon his release by reason of his brain damage should he be under the influence of alcohol and find himself in any situation of stress. I therefore feel unable to mitigate the severity of a life sentence by reason of the prisoner's abnormal mental condition."

His application for leave to appeal to the Court of Criminal Appeal failed and he applies for special leave to appeal to this Court. The Court of Criminal Appeal regarded the judgment of Mason J. in Veen (No.1) as containing an authoritative enunciation of general principle, though his Honour (in whose judgment Aickin J. agreed) was in the minority in that case. The judgment of Jacobs J. in Veen (No. 1), with which Stephen and Murphy JJ. expressed agreement in their respective judgments, was regarded as no longer applicable for reasons presently to be considered. It is appropriate to grant special leave in order to clarify the principles expressed in and the authority of the judgments in Veen (No. 1), but it is convenient to leave examination of those judgments until the facts of the present case are more fully stated.

4. Hunt J. heard evidence relating to the applicant's background and medical condition. It was a sorry story. From the age of 2 1/2 years, he was brought up by foster parents. He had a disturbed childhood. He was ultimately removed from his foster parents' custody. A male teacher at his school introduced him to homosexual activity. His academic performance was poor. He has drunk alcohol excessively. The evidence accepted by Hunt J. showed that he has brain damage due to alcohol abuse. In gaol, he has been a good worker; "very quiet, never a problem". As to the circumstances in which the applicant killed Hoson, Hunt J. found:

" I am satisfied that, at the time when the prisoner killed the victim, he was - notwithstanding what he said in his record of interview - affected by alcohol, and that this was yet another incident when the prisoner, when so affected, lost control of his aggressions and reacted violently in a destructive rage.

The similarity between this incident and that

which happened in 1974 (1975) is thus a chilling one. It happened within weeks of his unsupervised return to Sydney after his release on licence. Despite what appears to have been every effort on the part of the Probation and Parole Service, the supervision which was necessary to keep this man out of trouble had not been there. It is apparent that the only supervision which will ensure that the prisoner will not re-offend in this way is that which is available when he is in custody. That such is the accurate conclusion to draw is shown by the evidence led on his behalf (which is confirmed to some extent by the Probation and Parole Officer's reports produced from the gaol files) that the prisoner's behaviour whilst in custody has been good throughout his stay in maximum security.

I have therefore come to the conclusion that,

as forecast by Aickin J. in the High Court (at 497), the finding by Rath J. that the prisoner was likely to kill again was correct - even though such finding was based on inadequate material at the time. I am satisfied that, by reason of his brain damage, the prisoner is when under the influence of alcohol likely to kill or to inflict serious injury again upon his release."

Hunt J. further found:

" (T)he present is clearly amongst the most serious category of cases by reason of that repetition. I accept that the prisoner himself has been severely emotionally and socially deprived, I accept the medical view that he has brain damage. That brain damage entitled him to have accepted in his favour the defence of diminished responsibility. But the extent by which the prisoner's mental responsibility was diminished for that vicious killing, unattended as it was by any extenuating circumstances, does not appear to me to have been very great. ...

I am satisfied that the prisoner is

potentially or indeed, certainly - a continuing danger to society when released, in that he is likely to kill again or to inflict serious injury upon his release by reason of his brain damage should he be under the influence of alcohol and find himself in any situation of stress. I therefore feel unable to mitigate the severity of a life sentence by reason of the prisoner's abnormal mental condition. ... Before any further licence is contemplated, it should be necessary for far greater certainty on the part of the psychiatrists that this man is fit to lead a life outside gaol, when he will be only partially supervised, without danger to the community."

His Honour therefore sentenced the applicant to penal servitude for life.

5. The obvious difference between Veen (No.1) and the present case is that it was then uncertain but is now known that the applicant has a propensity to kill when he is under the influence of alcohol and under stress. In Veen (No.1), the majority thought that the trial judge's view that the prisoner was "likely sooner or later to kill or seriously injure one or more other human beings" was not justified by the evidence; in the present case, the killing of Hoson adds to the earlier acts of violence which, together with the medical evidence, amply support Hunt J's conclusion that the applicant is a continuing danger to society. There are differences between the mitigating factors of which account was taken in Veen (No.1) and the circumstances of the present case: here, there was no evidence of provocation as there was in Veen (No.1); the prisoner's youth (he was aged 20 when the first killing occurred) has suffered the attrition of a further 8 years and his criminal record has now been supplemented by the first conviction for manslaughter.

6. However, these were not the grounds of distinction perceived by the Court of Criminal Appeal. In that Court, it was thought that the sentencing principles stated by Jacobs J. with the concurrence of Stephen and Murphy JJ. depended on the unavailability of psychiatric treatment for prisoners in New South Wales gaols and their Honours found that psychiatric facilities are now available and that the sentencing principles stated by Jacobs J. should now be regarded as inapplicable. The principles applied were thought to be those in the dissenting judgment of Mason J. Before examining the supposed ground of distinction between Veen (No.1) and the present case, it would be best to examine what were the sentencing principles there laid down. It is easier to state what was not laid down as principle than to state what was. To identify the principles, it is necessary to make a brief analysis of the reasons given for reviewing the sentence and for determining what substituted sentence was appropriate. Jacobs J. (at pp 487-489) referred to three features of the case which gave rise to concern: first, the possibility that the jury found manslaughter on the ground of provocation as well as on the ground of diminished responsibility; second, a misdirection on provocation; and third, the sparsity of evidence to base a conclusion that the prisoner would in the future kill or seriously injure someone. These features, and the trial judge's view that it was not the gravest case of manslaughter, led Jacobs J. to the conclusion that the sentence should be reviewed. He then referred (at p 490) to the mitigating factors mentioned in the preceding paragraph, the absence of premeditated violence and the unfortunate background of the prisoner before saying:

" This crime, very grave as it was, was not in the category of the most grave cases of unlawful killing short of murder. A life sentence under New South Wales conditions, coupled with repeated judicial pronouncements that if he were released, he would probably kill again, those pronouncements being based on an inference from the jury's verdict rather than upon the cogency of the psychiatric evidence, was too severe a punishment to impose on the applicant."

His Honour then addressed the order to be made, observing that "I do not think that the applicant's history is such that any punishment should be awarded which is not strictly proportionate to the gravity of the offence."

7. The sentencing principle which his Honour laid down is that a sentence should be "proportionate to the gravity of the offence" unless, perhaps, the applicant's history warrants some departure from the principle. He then determined the appropriate proportionate sentence by reference to all the circumstances of the case. The principle of proportionality was not the point of divergence between the majority and minority, however, for that principle was embraced expressly by Mason J. (with the agreement of Aickin J.) at p 468. The majority decision in Veen (No.1) reflected their Honours' assessment of the particular circumstances of the case; it did not depend on the absence of psychiatric services in New South Wales gaols. Jacobs J. referred to the absence of psychiatric services in order to reject as inapplicable to New South Wales a principle developed in England "that an indeterminate sentence of life imprisonment may be desirable even in a case where the whole of the circumstances of the offence do not on general principles warrant such a sentence": p 477. In his Honour's view the English development, which permitted a sentence greater than the principle of proportionality would allow, proceeded from two bases which were interrelated: (1) the prisoner's mental condition could be kept under constant review and treatment under English conditions; and (2) a longer sentence is required for the protection of the community. As the New South Wales facilities for reviewing and treating mentally abnormal prisoners did not reproduce the English conditions, the first basis could not be matched in New South Wales. But there is nothing in the majority judgments which suggests that the English development should be adopted in this country if and when comparable facilities for the review and treatment of mentally abnormal offenders become available.

8. The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen (No.1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender: see pp 467,468,482-483,495. And cf. Walden v. Hensler (1987) 61 ALJR 646, at p 650; 75 ALR 173, at p 179, as to the care to be exercised in imposing a sentence merely to educate possible offenders in the penalties attached to proscribed conduct. There is no occasion now to contemplate the adoption by judicial decision of the English development. Accordingly, it was unnecessary for the Court to consider the state of psychiatric services in New South Wales gaols as a fact material to the sentencing principles to be applied in this case. It was a mistake to see the distinction between the majority and minority judgments in Veen (No.1) as turning upon the state of psychiatric services in New South Wales gaols. Evidence as to that matter should have been rejected as irrelevant to any issue before the Court, for it was not directed either to the need of the applicant for psychiatric treatment or to the likelihood of his being offered such treatment. It is unnecessary to consider the procedure adopted by the Court of Criminal Appeal in admitting evidence as to the state of gaol psychiatric services but, subject to appropriate procedural safeguards, we would not regard that Court as being precluded from receiving further material relevant to the adoption of sentencing principles or sentencing policy of general application.

9. It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible. The distinction between what is impermissible and what is permissible is at the heart of an illuminating controversy to be found in (1953) 6 Res Judicatae between Mr C.S. Lewis ("The Humanitarian Theory of Punishment", at p 224) on the one hand and Drs Norval Morris and Donald Buckle ("A Reply to C.S. Lewis", at p 231) and Professor J.J.C. Smart ("Comment", at p 368) on the other. The thesis advanced by Mr Lewis was that the retributive theory of punishment - punishing an offender "because he deserves it" - prevents the injustices which may be involved in detaining an offender in order, for example, to protect society or to reform the offender. The controversy, the light of which has not been dimmed by later literature, ended with C.S. Lewis' "On Punishment: A Reply" (at p 519) in which he acknowledged the importance of protecting society but in this way (at pp 522-523):

" All I plead for is the prior condition of ill desert; loss of liberty justified on retributive grounds before we begin considering the other factors. After that, as you please. Till that, there is really no question of 'punishment'. We are not such poltroons that we want to be protected unconditionally, though when a man has deserved punishment we shall very properly look to our protection in devising it."

10. The plea has been heard by the courts of this country, by adopting the principle of proportionality and by having regard to the protection of society as a factor in determining a proportionate sentence. It must be acknowledged, however, that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society's protection in determining the sentence calls for a judgment of experience and discernment.

11. The basic difference between the majority and the minority in Veen (No.1) lay in the differing assessments of what was the appropriate proportionate sentence. No judgment would have given support to a sentence exceeding what was truly proportionate. The majority were satisfied that the sentence of life imprisonment was "too severe a punishment to impose on the applicant" (per Jacobs J. at p 490) whereas the minority could not determine on the unsatisfactory evidence "what is the appropriate penalty to be imposed in this case" (per Mason J. at p 472). But all Justices other than Murphy J. accepted that, in a case where a verdict of manslaughter is returned on the ground of diminished responsibility, the risk that the offender's mental abnormality may lead him to kill again is a material factor in determining the sentence to be imposed. Thus Jacobs J. said (at p 489):

" in the great majority of cases where mental disorder has been treated not as a mitigation but as a reinforcement of the need for the longest permissible sentence, the psychiatric evidence, frequently accompanied by a substantial and more or less prolonged confirmatory history, was overwhelming and most frequently unanimous that there was a present abnormal mental condition of a severe kind." (Emphasis added.)

And he added:

" I wish to make it clear that I do not say that there are not cases, many cases, of manslaughter which warrant such a sentence. In particular there are no doubt very many cases where the success of a defence of diminished responsibility will lead to a sentence of life imprisonment, even though that is the same sentence as in the case of a verdict for murder."

12. It is desirable to refer here to the two Queensland cases which were quoted in Veen (No.1): Reg. v. Gascoigne (1964) Qd R 539 and Reg. v. Pedder (unreported, 29 May 1964). The value of Gascoigne was that it emphasized the principle of proportionality and the impermissibility of sentences of mere preventive detention. In this respect it was cited with approval by Jacobs J. and in the New South Wales cases mentioned by him. But Gascoigne was expressed in terms which were capable of being understood as denying the orthodoxy in determining a proper sentence of taking account of the fact that a prisoner's mental illness makes him a menace when at large. That proposition was erroneous, as Gibbs J. made clear in Pedder in a passage cited by Brennan J. in Channon v. The Queen (1978) 20 ALR 1, at p 10:

" '... R. v. Gascoigne is no doubt authority for the proposition that any sentence imposed must be in respect of and appropriate to the crime committed but it does not, in my opinion, decide that the protection of the public is not a matter that should be considered in imposing sentence. Indeed the protection of the community is one of the most important results that the criminal law is designed to secure.'"

In Veen (No.1) (at p 469), Mason J. cited a further passage from the judgment of Gibbs J. in Pedder including the following:

" '... In some cases in which it appears that there is no likelihood that the convicted person would be a danger to the public if set at liberty, and that there were mitigating circumstances, a light term of imprisonment or no imprisonment at all may be appropriate. On the other hand there are cases in which the mental condition of the convicted person would make him a danger if he were at large and in some such cases sentences of life imprisonment may have to be imposed to ensure that society is protected.'"

Mason J. then said:

" In my opinion, his Honour's observations express the principle which is to be applied to cases of this kind. They demonstrate that in such a case there is no opposition between the imposition of a sentence of life imprisonment with the object of protecting the community and the proportionality principle. The court imposes a sentence of life imprisonment on taking account of the offender's record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted, imprisonment for life being a penalty appropriate to very serious manslaughter when it is attended by the additional factors to which I have referred."

That passage remains, in our opinion, an accurate statement of the law. Gascoigne should not be understood as excluding the protection of society from the factors to be considered in determining the sentence to be imposed.

13. There is an anomaly, however, in the way in which the mental abnormality which would make an offender a danger if he were at large is regarded when it reduces the crime of murder to manslaughter pursuant to s.23A. Prima facie, a mental abnormality which exonerates an offender from liability to conviction for a more serious offence is regarded as a mitigating circumstance affecting the appropriate level of punishment. Historically, that was the effect of the provision on which s.23A was modelled, that is, s.2 of the Homicide Act 1957 (U.K.). That section affected the operation of the existing law in two respects: first, by providing a defence to the crime of capital murder, it protected a qualified offender from the death penalty and, secondly, it provided a modified defence to many mentally abnormal offenders (especially the "uncontrollable impulse" offenders) who were not entitled to the more restricted defence of insanity according to the M'Naghten Rules: see Windlesham, Responses to Crime (1987), pp 122-124. But that provision has never been regarded as requiring in all instances the imposition of a penalty less than life imprisonment, as Baroness Wootton of Abinger pointed out in "Diminished Responsibility: A Layman's View" (1960) 76 Law Quarterly Review 224, at p 237:

" In practice it seems likely that the courts do have in mind in passing sentences the probable risk involved in relatively short periods of imprisonment for irresponsible people; and that the heavier sentences are imposed upon those who are thought to be the more dangerous criminals."

She acknowledged that there is a lack of logic in imposing heavier sentences on the more dangerous criminals whose mental abnormality reduced their moral responsibility for the unlawful homicide, and she concluded that "(t)he concept of diminished responsibility represents, in fact, an attempt to smuggle into an essentially punitive system ideas and aims which are totally incompatible with such a system". 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 tempted 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 guideposts 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.1) Murphy J. alone thought it "a distortion of the criminal law to sentence people to longer terms because they ... have diminished responsibility": p 495. As Baroness Wootton points out, if that approach were adopted in culpable homicide the legally insane would be detained indefinitely, those whose responsibility was severely diminished would be released in the shortest time even though they were a grave danger to society, and those whose responsibility was diminished to a lesser extent would be longest detained even though their release would pose little danger to society. Such a theory of sentencing would prove adventitious in practice and destructive of public confidence in the processes of criminal justice. In this case, Hunt J. took into account the relevant purposes of criminal punishment in determining the sentence to be imposed. He was entitled to attach great weight to the protection of society as a factor in that determination.

14. 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: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. 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. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.

15. The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v. The Queen (1987) 61 ALJR 525, at p 527; 74 ALR 1, at p 5. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.

16. It remains to apply these principles to the instant case. The killing of Hoson was particularly horrible in the manner and violence of its execution. There was an intentional taking of his life. There was no provocation. The mental abnormality which entitled the prisoner to the verdict of manslaughter under s.23A of the Crimes Act is such that the prisoner is a danger to society when he is at large. The doubt which attended this proposition in Veen (No.1) has now been dramatically dispelled. The circumstances show that the case was in the worst category and that the appellant's mental abnormality makes him a grave danger to society if he goes at large. The tragedy of Veen's life, which appears from the moving testimony of his foster sister, Brother Loth and Ms Fitzwalker and which must excite sympathy for him, has to be balanced against the exigencies of the criminal law especially the protection of society. Disastrous though the consequences of the sentence of penal servitude for life are for Veen, it cannot be said that the balance was wrongly struck.

17. Although the way in which the learned trial judge considered Veen's antecedent criminal history does not correspond with the way in which we have expressed the principle, it appears that his Honour did no more than regard the relevant antecedent history as a factor which he was entitled to take into account in determining the sentence. Accordingly, there was no error of principle affecting the sentence nor was it manifestly excessive.

18. We would therefore grant special leave to appeal and dismiss the appeal.

WILSON J. The applicant was presented for trial in the Supreme Court of New South Wales on a charge of murder. He pleaded not guilty to murder but guilty to manslaughter. The plea of guilty to manslaughter was accepted by the Crown. It was made expressly by the applicant and accepted by the Crown upon the basis of diminished responsibility (see Crimes Act 1900 (N.S.W.), s.23A). The learned trial judge, Hunt J., sentenced the applicant to penal servitude for life and this sentence was upheld by the Court of Criminal Appeal (Street C.J., Lee and Brownie JJ.). Special leave to appeal from the decision of the Court of Criminal Appeal is sought on the ground that the Court erred by adopting a principle of preventive detention to support the sentence of life imprisonment in preference to a term of years tailored to the gravity of the particular offence of which the applicant was convicted. The question is clearly of sufficient importance to warrant the grant of special leave.

2. The circumstances of the killing were described by Hunt J. as follows:

"The prisoner had casually known the victim

Paul Edmund Hoson previously. The victim was a homosexual and the prisoner himself had some years earlier been a male prostitute in the Kings Cross area. They met near the Kings Cross Rex Hotel in Macleay Street, Potts Point, and drank some beer together at that hotel. The victim propositioned the prisoner to have sex with him in his nearby apartment. The prisoner told the victim that he would think about it. He had some more beer to drink and ultimately accepted the victim's proposition, returning with the victim to his apartment in Elizabeth Bay.

... When they arrived at the apartment, the

victim apparently proposed certain sado-masochistic acts, to which the prisoner demurred. The prisoner went to the kitchen of the apartment and started to make some coffee. Whilst he was at the sink, the prisoner says in his record of interview, his mind 'sort of went' and he started 'thinking about the past'. He saw a bread knife in the sink and he grabbed it in one hand and a cup of coffee in the other. He then saw the victim standing naked at the doorway of the kitchen and he threw the coffee at him. As the victim jumped back, the prisoner moved in and stabbed him a number of times in the stomach and the heart. The victim managed to hit the prisoner over the head with a glass vase, but the prisoner continued to stab him. He told the police that he intended to kill the victim - indeed, that he had decided to kill him when they first entered the apartment - but he could offer no reason why he did so. There had been no dispute or fight between them before he stabbed the victim. He left the knife in the bathroom, where he had a shower, and he gathered up some of the victim's clothes and his wallet and left the building by climbing down some scaffolding. He left the wallet in a hotel lavatory and travelled north to Queensland. He was arrested in Brisbane some days later.

According to the medical evidence, the victim

received two stab wounds through the same chest opening which went right through the heart and into the upper lobe of the left lung, and two further stab wounds through the same chest opening downwards, causing lacerations to the liver. The deepest of these four wounds was nineteen centimetres. All four wounds were apparently inflicted in rapid succession. There were also two stab wounds through the abdomen which went right through the liver and into the stomach, one five centimetres and the other six centimetres deep. There was as well a stab wound which went from the right side of the victim's neck through into the left side, puncturing the membrane at the top of the lung on the way. This was fifteen centimetres deep. Finally, there were some small lacerations to the victim's hand which were caused by him attempting to defend himself. Death was caused rapidly by the stab wounds to the heart and stomach."

3. His Honour described the nature of the offence in the following terms:

"Apart from any abnormal mental condition on

the part of the prisoner, the killing of Mr Hoson can fairly be described as a vicious act; it was a killing unmitigated by any extenuating circumstances. There is no suggestion of provocation or self-defence, or any other justification for that act. All that appears from the prisoner's own account of this terrifying crime is his statement that immediately before he committed it his mind 'sort of went' and he started thinking 'about the past'."

4. The applicant's past included convictions for two offences of a violent nature. In 1971, when sixteen years of age, he attacked his landlady with a knife, inflicting three stab wounds in her back and one in her chest. He was convicted of malicious wounding. In 1975, when twenty years of age, the applicant was working as a homosexual prostitute in Sydney when he stabbed a client to death. The attack was one of extreme violence, involving more than fifty stab wounds. He was tried for murder, but the jury found him guilty of manslaughter, apparently on the basis of diminished responsibility. For the purposes of sentencing the applicant on that occasion the learned trial judge accepted the evidence of a clinical psychologist that the applicant had a form of brain damage which would cause him to act in an uncontrollably aggressive manner when he was severely provoked or had an intake of alcohol. His Honour found that the applicant was well aware of what he was doing and of his intention to kill. Although he did not think that life imprisonment was otherwise appropriate for the crime, his Honour concluded that a life sentence had to be imposed for the protection of the community because of the probability that no matter when the applicant was released he would again commit a crime of serious violence. An application to the Court of Criminal Appeal for leave to appeal was dismissed but an appeal to this Court succeeded and the sentence was reduced to twelve years imprisonment: Veen v. The Queen (1979) 143 CLR 458. The applicant was released on licence on 20 January 1983. The killing the subject of the present proceedings occurred on 27 October 1983.

5. A considerable amount of expert evidence was adduced before Hunt J. On the basis of that evidence, his Honour found that the applicant suffered from brain damage due to alcohol abuse and that when under the influence of alcohol he is likely to lose control of his aggressions and to react violently, thus remaining a potential danger to the community. His Honour then proceeded to make an initial assessment of the punishment that was appropriate to the crime, without regard to the applicant's abnormal mental condition. However, in assessing the appropriate punishment, Hunt J. took into account by way of aggravation of the instant offence the fact that the applicant had previously committed a vicious killing unmitigated by any extenuating circumstances and had previously maliciously wounded another person. In taking this course, his Honour rejected the submission, advanced for the applicant and conceded by the Crown, that an offender's previous record became relevant only by way of cancelling out any claim he may have to leniency for other reasons personal to the offender. The learned judge emphasized the distinction between the commission of serious crimes in the past and the potential danger to the community in the future: the former may be taken into account as aggravating the objective features of the crime and as warranting a more severe sentence than would otherwise have been imposed; the latter may not. The appropriate penalty, disregarding the applicant's abnormal mental condition, was held to be penal servitude for life. His Honour was also of the view that since the applicant would be a continuing danger to society if released into it, there should be no mitigation of the sentence so assessed as there might otherwise have been for an offender whose mental condition was some merely temporary episode.

6. The question of sentence was approached differently in the Court of Criminal Appeal. The Court found it preferable to consider whether the sentence of life imprisonment could be supported by reference to the principles touching an indeterminate life sentence enunciated by the Court of Criminal Appeal in England in Reg. v. Hodgson (1967) 52 Cr App R 113. In that case, the Court (Lord Denning M.R., Widgery and MacKenna JJ.) said (at p 114):

"When the following conditions are satisfied,

a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence.... The Home Secretary has of course the power to release the appellant on licence when it is thought safe to release him, if that time comes."

Street C.J., with whom Lee J. and Brownie J. agreed, found in the dissenting judgments in this Court in Veen "an authoritative enunciation of general principle" based on Hodgson. Their Honours ruled that it was the law to be applied henceforth in New South Wales. They concluded that in the light of these principles there was no legitimate basis upon which the sentence imposed by Hunt J. could be varied. Having come to this conclusion, it was unnecessary for the Court to consider whether the sentence could be supported by reference to the reasoning which Hunt J. followed.

7. The issue before this Court in the earlier case of Veen was precisely the same as it is now, the complaint being that the Court of Criminal Appeal had embarked on a policy of preventive detention without legislative warrant (see report of argument in Veen, at p 460). The headnote, in my view correctly, records the decision of the majority as follows:

"The protection of the community, though an important factor in determining sentences in New South Wales, is not of itself a justification for a sentence of preventive detention."

It is necessary to examine the judgments in that case. The leading judgment for the majority was delivered by Jacobs J. His Honour, after referring to Hodgson, explained (at pp 477-478) that there were two bases to the development in England of the principle that an indeterminate sentence of life imprisonment may be desirable notwithstanding that the circumstances of the offence do not on general principles warrant such a sentence. The first was that the offender's mental condition could be kept under constant review and treatment so that, if it sufficiently improved, he could be released from custody on licence. At the time of the development of the principle in England, this course was not open to the Home Secretary in the case of an offender sentenced to a fixed term of imprisonment. But despite an extension of the Home Secretary's powers in respect of fixed term prisoners by the Criminal Justice Act 1967 (U.K.), s.60, the principle had continued to be applied; for example, in Reg. v. Ashdown (1974) CrimLR 130, which led one commentator Mr D.A. Thomas (at p 133) to suggest that the judicially evolved principles governing the use of sentence might not have properly adjusted to the legislative developments. The second basis for the English development was that the offender had been proved to be a continuing danger to the community and the longer sentence was requisite for the protection of the community. Jacobs J. then continued (at p 478):

"Both these bases - constant review and treatment of the prisoner's mental condition with a view to his release if and when he responds, and meanwhile the protection of the community - inter-relate with one another. It appears to me that the second, without the first, would offend against the fundamental principle that a man must be given the sentence appropriate to his crime and no more. It is only by regarding the life sentence for a mentally disturbed offender as no more than appropriate because of the potential advantages which it offers to the offender - proper treatment and possibly earlier release than would otherwise be open - that the course has been able to be developed in England. It needs to be emphasized that the protection of the public does not alone justify an increase in the length of sentence."

His Honour, in explaining that it was an error to regard the two bases separately, proceeded to say:

"It is true that the English practice has survived the introduction of the power to release on licence a fixed-term prisoner but, as I have stated, the justification has been criticized, and, it appears to me with respect, rightly so. As a result, indefinite protection of the public is made to appear a sufficient justification in itself."

His Honour then proceeded to contrast the facilities available in England for the treatment of prisoners suffering from mental illness with the medical services available in prisons in New South Wales as described by Nagle J. in his Report of the Royal Commission into New South Wales Prisons (1978). Jacobs J. concluded his citations from the Report with the comment (at p 482) that if and when the reform recommended by Nagle J. should be effected "it would be time to consider the adoption of the English development".

8. In the present case, the Court of Criminal Appeal, in the light of evidence led by the Crown, accepted that there had been such a fundamental change in the factual matters reported on by Nagle J. in 1978 as to place the whole question at large and to render the majority decision in Veen inapplicable to the present case. With all respect, I do not think the majority decision in Veen can be put aside in this way. The thrust of the judgment of Jacobs J. has been misunderstood by their Honours. The absence of medical services in New South Wales prisons was not the basis of his conclusion nor was it the ground for rejecting the English approach. That fact was not of "decisive significance" to the majority, as Street C.J. thought. Before coming to the question of the services available to prisoners, Jacobs J. emphasized the fundamental principle that the protection of the public does not alone justify an increase in the length of a sentence. As I read his Honour's judgment, it restores to a position of authority the decision of the Court of Criminal Appeal in Reg. v. Nell (1969) 2 NSWR 563 which rejected the proposition that a sentence of imprisonment can be used to punish an offender for crimes he had not committed but was considered likely to commit by reason of some propensity arising out of mental illness. In my opinion, his Honour's comment that if and when reforms are effected in New South Wales it would be time to consider the adoption of the English development cannot in the context of the whole judgment be read as supporting its introduction. Nor, in my opinion, can the absence of facilities for treatment in 1978 be taken as the decisive reason for rejecting Hodgson as applicable to New South Wales.

9. Stephen J. commenced his judgment in Veen with the following statement (at p 460):

"Having had the opportunity of reading the

judgment of Jacobs J., I am in entire agreement with its review of authority, both in the English courts and in those in New South Wales, with the conclusions he expresses concerning those authorities and with his Honour's statement of principle based upon these conclusions."

His Honour then proceeded to a discussion of the sentence imposed and concluded that it required reconsideration because, inter alia, it sacrificed the important factor of proportionality in favour of the notion of protection of the community against future danger from the offender.

10. The third member of the Court to reject the notion of preventive detention in the absence of statutory authority was Murphy J. His Honour's emphatic judgment can be summed up in his citation (at p 494) of Cicero: "Take care that the punishment does not exceed the guilt" (De Officio, Bk 1, Ch.25, s.89).

11. Mason J., with whose judgment Aickin J. expressed his complete agreement, said (at p 468):

"The court must, in sentencing a person who has been convicted of a very serious offence involving violence, if his record and the expert evidence plainly demonstrate that there is a real likelihood of his committing that kind of offence again if he is restored to liberty, ensure by the order which it makes that he will not be released whilst that likelihood continues...

In saying this it is not my intention to deny,

or derogate from, the principle that the punishment to be inflicted must be proportionate to the crime."

After citing a passage from the judgment of Gibbs J. in Reg. v. Pedder (unreported, Queensland Court of Criminal Appeal, 29 May 1964) in which his Honour envisaged the necessity to impose a sentence of life imprisonment on a mentally deranged offender "if that is not otherwise inappropriate to the circumstances of the crime", Mason J. continued (at p 469):

"... in such a case there is no opposition between the imposition of a sentence of life imprisonment with the object of protecting the community and the proportionality principle. The court imposes a sentence of life imprisonment on taking account of the offender's record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted, imprisonment for life being a penalty appropriate to very serious manslaughter when it is attended by the additional factors to which I have referred."

The concluding phrase of this passage may suggest that his Honour considered that the protection of the community is a factor which may properly lead to a more serious sentence of imprisonment being imposed than the gravity of the offence itself would warrant. Later in his judgment, after noting the statutory framework in England, his Honour said (at p 471):

"But, notwithstanding the absence in New South Wales of a corresponding statutory provision and of the system for psychiatric treatment and assessment which obtains in England, I am of opinion that life imprisonment should be imposed when it is necessary to protect the community from an offender who has a disposition to commit violent crimes and that the conditions for the imposition of that sentence are as stated in Reg. v. Hodgson."

12. In my opinion, the majority judgments in Veen do not reveal any support for the principle of preventive detention or for its introduction into Australia. The decision in the case stands as authority for the proposition that a sentence should not exceed that which is appropriate to the gravity of the crime considered in the light of its objective circumstances. In other words, the punishment must fit the crime. Furthermore, with all respect, I do not think that the decision should be reviewed. On the contrary, I find myself fundamentally opposed to the notion that, in the absence of express statutory authority, courts should find in the common law of Australia a power to impose sentences of preventive detention.

13. It may have been possible in England prior to 1967 to reconcile indeterminate life sentences with the fundamental principle of proportionality because at that time a life sentence opened up the immediate possibility of release on licence and a system of periodic review and thereby allowed for a flexibility in the custody and treatment of offenders that was not open to offenders sentenced to a fixed term of imprisonment. From such a perspective a sentence of life imprisonment reflected greater sympathy and concern for a prisoner than a fixed term of imprisonment for a lengthy period; indeed, it was open to be regarded as a less serious sentence than a fixed term (see Reg. v. Kocan (1966) 84 WN (Pt.1) (N.S.W.) 588, at p 591, cited by Jacobs J. in Veen, at p 482). Any evaluation of the English practice since 1967 would have regard to the significant statutory changes since that time: Criminal Justice Act 1967 (U.K.), ss.60, 61. In Australia today, when systems of release on licence or parole are available in respect of the majority of prisoners whether they are sentenced to fixed terms or to life imprisonment, there is no justification for adopting the English practice. Of course, it is always open to a legislature to provide for preventive detention. The criminal laws of the States authorize such a sentence in the case of habitual criminals: see, for example, Habitual Criminals Act 1957 (N.S.W.); Criminal Code (W.A.), s.661. There are other examples: Criminal Code (W.A.), s.662; Criminal Law Consolidation Act 1935 (S.A.) s.77a (see South Australia v. O'Shea (1987) 61 ALJR 477; 73 ALR 1).

14. Reference should be made to the decision of the Full Court of the Federal Court of Australia (Brennan, Deane and Toohey JJ.) in Channon v. The Queen (1978) 20 ALR 1. The reasons for judgment in that case, in so far as they draw support from Hodgson and the decision of the Court of Criminal Appeal in Veen, must now be read in the light of the decision of this Court in Veen. Nevertheless, the case illustrates the ease with which obscurity of meaning can infect this area of discourse. Brennan J. (at pp 9-10) referred to Reg. v. Gascoigne (1964) Qd R 539 and suggested that the decision may have been misunderstood. His Honour approved the comment with respect to Gascoigne made by Gibbs J. in Pedder:

"... Gascoigne is no doubt authority for the proposition that any sentence imposed must be in respect of and appropriate to the crime committed but it does not, in my opinion, decide that the protection of the public is not a matter that should be considered in imposing sentence. Indeed the protection of the community is one of the most important results that the criminal law is designed to secure."

I have no difficulty with such a statement. I accept it as entirely correct. However, unlike Brennan J., I do not understand it as permitting the imposition of an indeterminate sentence of life imprisonment in a case in which life imprisonment is not an appropriate sentence by way of punishment for the offence charged. It is to be noted that Gibbs J. went on to say:

"Even in cases where it is hoped that mental treatment may so ameliorate the condition of the offender ... it may still be necessary ... for the Court to impose a sentence of life imprisonment, if that is not otherwise inappropriate to the circumstances of the crime, rather than let loose a man whose abnormality of mind may lead him to commit further killings" (my emphasis).

15. The difficulty arises in determining the effect that the element of protection of the community may properly have in arriving at a particular sentence. In my view, it should not have the effect of increasing a sentence beyond the longest sentence that the actual offence charged, when viewed objectively, would justify. In the case of a mentally deranged offender whose release would represent a potential danger to the community, the necessity to protect the community would be likely to outweigh any other considerations personal to the offender which may have led to a reduction in the sentence, with the consequence that the maximum sentence appropriate to the offence would be imposed. What is not permissible, in my opinion, is that the maximum appropriate sentence be increased to some longer sentence solely because of the imperative to protect the community. To do that is to punish the offender, not for the offence of which he has been convicted but for the potential offences which he may commit in the future. As I read the judgment of Deane J. in Channon, his Honour agreed with this approach. His Honour said (at p 18):

"In every case, there is but one ultimate

question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances."

A sentence cannot represent appropriate punishment for the particular offence if by reason of a concern to protect the community it exceeds that sentence which is the maximum the circumstances of the offence, viewed objectively, will bear. However, later in his judgment (at p 21) Deane J. cited Hodgson and Pedder and accepted that the protection of the public from an offender with a propensity to commit violent or serious crime may legitimately result in a heavier sentence being imposed than would be the case if such propensity had not been present. With all respect, I find an ambiguity in such a statement because if the propensity had not been present then it is probable that considerations personal to the offender would justify a measure of leniency and result in a sentence which was less than the maximum punishment which the facts of the offence, viewed objectively, would warrant. Toohey J. (at p 28) agreed with the comments made by Brennan J. with respect to Gascoigne, to which I have already referred.

16. It remains now to apply the principles which I have expressed to the present case. I cannot support the approach of the trial judge in so far as his Honour treated the applicant's previous convictions as matters of aggravation justifying a longer sentence than the maximum sentence which the circumstances of the offence, viewed objectively, would warrant. In my view the proper benchmark of an appropriate sentence is determined by reference to the objective features of the crime; matters personal to an offender, including any record of previous convictions and also the likelihood of any potential threat to the community, are relevant only to the question whether the case admits of any leniency being shown to the offender. Nor can I support the approach of the Court of Criminal Appeal in adopting the preventive detention principle to justify a sentence which, in their Honours' view, was longer than the hypothetical starting point would allow.

17. The factual circumstances of the offence of which the applicant stands convicted have already been described. It was a vicious killing, unmitigated by any extenuating circumstances. Hunt J. placed the offence in the most serious category of manslaughter but only because of it being the second killing of its kind for which the applicant had been found responsible. As I have explained, the repetitive nature of the offence should not have been taken into account in determining the maximum punishment that the particular offence could appropriately attract. Nevertheless, it may be that the gravity of the crime, viewed objectively, would place it in the most serious category of manslaughter. It is often said that the maximum punishment prescribed for an offence should be reserved for the worst case of its kind but in these days of increasing violence the "worst case" may comprehend a substantial category of cases. The imagination is not required to ascend to great heights to identify the case which is to head the category as the worst case. As I have said, the present offence was a vicious killing, unmitigated by any extenuating circumstances. There is no suggestion that provocation or self defence was a factor. If one were to conclude that life imprisonment would be a sentence proportionate to the gravity of the crime, the question then would be whether the brain damage suffered by the applicant leading to a diminished responsibility for the killing is a consideration which would justify the imposition of a lesser punishment than life imprisonment. In many cases, the mental condition of an offender may justify a degree of leniency. But the present case is one where the trial judge was satisfied, on the basis of adequate medical evidence, that the applicant is potentially a danger to society in that he is likely to kill again or to inflict serious injury upon his release by reason of his brain damage should he be under the influence of alcohol and find himself in any situation of stress. This could be a case which satisfies the description given by Jacobs J. in Veen (at p 489) -

"... there are no doubt very many cases where the success of a defence of diminished responsibility will lead to a sentence of life imprisonment, even though that is the same sentence as in the case of a verdict of murder"

- with the result that the protection of the community is an overriding imperative which denies any resort to leniency. An analogy might be found in the case of Kocan: see per Sugerman J.A., at pp 591-592.

18. However, I stress that these observations are not intended to be determinative of a conclusion as to what is the proper sentence which should be imposed upon the applicant. It is not appropriate for me to undertake that task and I decline to do so. In the light of the errors of principle by both the trial judge and the Court of Criminal Appeal to which I have referred earlier in this judgment, in my opinion the matter should be remitted to the Court of Criminal Appeal for reconsideration.

19. It was also argued for the applicant that the Court of Criminal Appeal erred in allowing the Crown to adduce fresh material on the hearing of the appeal. It is sufficient, in dismissing this ground of appeal, to say that the established principles governing the admission of fresh evidence do not apply so as to limit the materials to which an appellate court in its discretion may have regard when hearing and determining an appeal with respect to sentence.

20. Since preparing these reasons for judgment, I have had the opportunity of reading the reasons for judgment prepared by Gaudron J. With all respect, I have difficulty in accepting her Honour's view in relation to the amendment in 1982 to s.19 of the Crimes Act. The effect of the proviso which was then inserted in s.19 was to confer a discretion in relation to the sentence to be imposed upon a person convicted of murder in circumstances where the person's culpability for the crime is significantly diminished by mitigating circumstances. Although diminished responsibility due to abnormality of mind bears on the culpability of an offender, thereby giving rise to the existence of a discretion, the proviso does not compel the imposition of a sentence less than the maximum. The practical effect of the proviso in a case covered by its provisions is to bring the sentencing powers of the court when dealing with a person convicted of murder into line with its powers when dealing with a person charged with murder but convicted of manslaughter by reason of diminished responsibility. The sentence of penal servitude for life in such circumstances is no longer a mandatory sentence. In my opinion, the proviso carries no implications for the sentencing powers of the court in respect of a person convicted of manslaughter. It speaks only to the case of a person convicted of murder.

21. I would grant special leave to appeal, allow the appeal, quash the sentence imposed on the applicant and remit the matter to the Court of Criminal Appeal for imposition of a sentence according to law.

DEANE J. The facts and issues involved in this application for special leave to appeal are set out in other judgments. Subject to the comments made hereunder, I agree with Wilson J's discussion of the applicable principles. In what follows, I add some comments for myself in relation to those principles and express my own view in relation to their application to the facts of the present case.

2. The common law of this country makes no provision for any system of imprisonment by way of preventive detention. While the sentencing process must take account of many factors other than punishment, the basis and justification of the imposition of a sentence of imprisonment upon a convicted person lies in punishment in the sense that the outer limit of the appropriate sentence for a particular offence (in a case where a range of sentence is available) is that which is proportionate to the gravity of the actual crime when viewed in the context of relevant social standards and circumstances. Put differently, the power of a person in the exercise of judicial office to order the imprisonment of another person who has been convicted of a crime is limited to what is justified as punishment for the crime itself: it does not extend to imprisoning that other person beyond that proportionate punishment for the reason that the judge thinks that it is to the benefit either of the other person himself or of the community generally that he be further incarcerated. It is only within the outer limit of what represents proportionate punishment for the actual crime that the interplay of other relevant favourable and unfavourable factors - such as good character, previous offences, repentance, restitution, possible rehabilitation and intransigence - will point to what is the appropriate sentence in all the circumstances of the particular case. A propensity to commit serious offences in the future and the protection of the public are among those factors which might militate against factors favouring some more lenient sentence than the punishment which the crime itself would otherwise support. At worst from the convicted person's point of view, they may preclude any reduction of the full sentence which is proportionate to the facts of the actual crime. They cannot increase that sentence either to an unlimited (or life) sentence or to a heavier determinate sentence. Otherwise, the sentence imposed would conceal two elements: the sentence appropriate to the crime if unmitigated by other factors and a further sentence which, while worded in the language of punishment, is not justified by reference to the gravity of the actual offence but is in fact imposed to procure the protection of the public by the preventive detention of the offender.

3. The applicant in the present case was convicted of manslaughter after pleas of not guilty of murder but guilty of manslaughter. Those pleas were made and accepted on the basis that the applicant's culpability was reduced from guilt of murder by reason of diminished responsibility (Crimes Act 1900 (N.S.W.) s.23A). The effect of his conviction of manslaughter in those circumstances is that the actual crime for which he was liable to be sentenced was that of an intentional killing at a time when he was suffering from such abnormality of mind "as substantially impaired his mental responsibility" (ibid.). It would be quite contrary to principle to determine what represented proportionate punishment for that crime on the basis that the element of diminished responsibility, which in law reduced it from murder to manslaughter, should be effectively disregarded for some reason such as that, in the absence of an applicable statutory system of preventive detention, the applicant was likely to represent a threat to the safety of other persons.

4. The basis upon which the learned primary judge (Hunt J.) concluded that a life sentence should be imposed was that the starting point of the determination of sentence was to "assess what penalty is appropriate for the prisoner's crime, without regard to the prisoner's abnormal mental condition". As I understand his Honour's comments, that meant "without regard to" the diminished responsibility which reduced his crime from murder to manslaughter. That approach was, in my view, unacceptable in that it took, as the starting point of a determination of the appropriate sentence for the crime of manslaughter of which the applicant stands convicted, an assessment of the penalty which would have been appropriate for the crime of murder of which he is not guilty. The basis on which the New South Wales Court of Criminal Appeal concluded that a life sentence was the appropriate penalty was, in effect, that such a sentence was necessary to protect the community from the risk of further violence to which it would be exposed if the applicant were released while abnormality of mind continued to make him a threat to the safety of other people; that is to say, the basis upon which the Court of Criminal Appeal upheld the life sentence was the preventive detention of the applicant. For the reasons given by Wilson J. and in what is written above, that basis was, likewise, mistaken. That being so, the sentence imposed and upheld by the courts below can only be sustained if this Court itself effectively imposes a life sentence for the crime of manslaughter of which the applicant stands convicted.

5. The evidence established that the applicant had sustained brain damage by reason of past abuse of alcohol and was susceptible to loss of control and fits of violent conduct when subjected to the combined effect of alcohol and some form of stress. The evidence also supported Hunt J's finding to the effect that the violent acts constituting the offence had been committed while the applicant was suffering from loss of control. The applicant's explanation of the killing was that his mind "sort of went" and he started "thinking about the past". There is no reason to reject that explanation. In the particular circumstances of the case, that evidence inextricably links the applicant's diminished responsibility at the time of the crime with his past in that it is that past which provides both the context of his reduced responsibility and the content of his actual thought processes at the very time of the killing. Some aspects of the formative years of that past bear repetition (the quotations being from the evidence of the applicant's foster sister): an Aboriginal infant who was fostered, as "an extreme case of deprivation", to the care of a white couple at the age of 2 1/2 years; a child who could identify neither with his natural heritage nor with the white community into which he had been projected; a boy who was, for a period, committed to "a welfare institution" for what the "welfare people called ... natural instincts of going walkabout"; a school pupil who was sexually molested by a teacher at the age of 14; a young male prostitute in Kings Cross and Hyde Park in Sydney at the age of 15 who, when taken into police custody, stabbed himself while in the dock at Darlinghurst Police Station.

6. In Veen v. The Queen (1979) 143 CLR 458 ("Veen (No. 1)"), Jacobs J. (at p 489) expressed the view that there are "many cases of manslaughter" which warrant a sentence of life imprisonment. His Honour added the comment that there are "very many cases where the success of a defence of diminished responsibility will lead to a sentence of life imprisonment, even though that is the same sentence as in the case of a verdict for murder". Those remarks cannot, in my view, properly be seen as critical to the decision in Veen (No. 1) and I respectfully disagree with them. It may be that, notwithstanding that manslaughter is a less heinous crime than murder and that the maximum (and not the mandatory) sentence for murder in New South Wales is now life imprisonment, there are still conceivable circumstances in which a life sentence would be an appropriate sentence, measured by reference to the crime itself, for manslaughter in that State. Such circumstances are, however, properly to be seen as quite extraordinary in New South Wales at the present time. That was plainly recognized by Hunt J. who commented that a life sentence for manslaughter "is these days exceptionally rare and ... in recent years ... has been unknown".

7. The question arises whether the applicant's crime in the present case was so extraordinarily grave a crime of manslaughter that the sentence proportionate to the actual facts of that crime is life imprisonment notwithstanding that that represents the maximum sentence which could have been imposed if the plea of diminished responsibility had been rejected and the applicant had been convicted of murder. In my view, it obviously was not. True it is that the applicant's crime was one of unprovoked violence. It can, no doubt, be described as a vicious crime in that the applicant stabbed his victim numerous times. The ferocity of the attack is, however, also important in that it underlines the lack of control which flowed from the applicant's abnormality of mind. The applicant carried no knife or other weapon. He acted alone and not in concert with another or others. The crime was not premeditated. Nor does the Crown suggest that it was motivated by pecuniary gain. Plainly, the applicant's culpability in relation to it was greatly diminished by his mental condition. As a matter of law, his diminished responsibility must be accepted as critical to the gravity of the offence itself since it reduced it from murder to manslaughter. When the facts of the actual crime are examined in that context, it seems to me that the case does not even approach the rare case in which a sentence of life imprisonment for a single offence of manslaughter could conceivably be justified as a punishment at the present time in New South Wales. It is true that the applicant, who was described in the evidence of a prison official as "very quiet" and "never a problem", has previous convictions for two other crimes of violence which were committed during periods of loss of control. He has, however, been sentenced for those earlier offences and their relevance in relation to the sentence appropriate to the circumstances of the present case is restricted to their effect in militating against any mitigation of the sentence which the gravity of the present offence itself could support.

8. It follows from the above that I can see no justifiable basis upon which this Court could found a sentence of life imprisonment in the circumstances of the present case. Indeed, I have difficulty in seeing how this Court could, without comprehensive statistics about comparable sentences and detailed information about the practical consequences of not fixing a non-parole period, itself determine what the sentence proportionate to the gravity of this particular crime would be in the context of current standards in New South Wales and itself decide that no non-parole period should be fixed. In that regard, I would note that it seems to me to be unlikely, in the light of the reasons which they gave, that the learned primary judge would have imposed a sentence of life imprisonment or that the members of the Court of Criminal Appeal would have allowed such a sentence to stand in the absence of the underlying mistake of law in each case. It may be suggested that a person sentenced to life imprisonment can assume that he will not serve the full sentence and that, that being so, the sentence of life imprisonment is a "more lenient" one than a term of years. Such a suggestion is, however, plainly unacceptable in circumstances where the purpose behind the imposition of a life sentence (without any non-parole period being fixed) would be that the person sentenced would spend the rest of his life under the punishment of imprisonment in a gaol unless a Minister, who is apparently entitled to take any political considerations militating against release into account (cf. South Australia v. O'Shea (1987) 61 ALJR 477; 73 ALR 1), takes the step of ordering his release (see Probation and Parole Act 1983 (N.S.W.); Crimes Act 1900 (N.S.W.) s.463; Prisons Act 1952 (N.S.W.)).

9. There is one further matter which I would briefly mention. That is that the protection of the community obviously warrants the introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he were to be released as a matter of course at the end of what represents a proper punitive sentence. Such a statutory system could, one would hope, avoid the disadvantages of indeterminate prison sentences by being based on periodic orders for continuing detention in an institution other than a gaol and provide a guarantee of regular and thorough review by psychiatric and other experts. The courts will impede rather than assist the introduction of such an acceptable system if, by disregarding the limits of conventional notions of punishment, they assume a power to impose preventive indeterminate gaol sentences in a context which lacks the proper safeguards which an adequate statutory system must provide and in which, where no non-parole period is fixed, the remaining hope of future release ultimately lies not in the judgment of experts but in the exercise of a Ministerial discretion to which political considerations would seem to be relevant. I say "by disregarding the limits of conventional notions of punishment" for the reason that to increase a sentence of imprisonment by reason of a propensity, flowing from abnormality of mind, to commit further offences is to punish a person for that abnormality of mind and not for what he has done. Indeed, in the circumstances of the present case, it would be effectively to punish the applicant not for his offence against society but for an abnormality of mind which must realistically be seen as having been at least partly caused by the oppressive and deforming yoke of emotional deprivation and sexual abuse and exploitation which society laid upon his formative years.

10. Special leave to appeal should be granted. The appeal should be allowed. The sentence of life imprisonment imposed upon the applicant should be quashed and the matter should be remitted to the Court of Criminal Appeal for the imposition of a sentence, in accordance with law, proportionate to the crime of which the applicant stands convicted.

GAUDRON J. This is an application for special leave to appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales dismissing an appeal against sentence. The application raises for consideration once again the question of preventive detention and the related issue of community protection as factors to be taken into account in the sentencing process. These questions are raised in a context in which the applicant has twice been convicted of manslaughter. In both cases the applicant, a male prostitute, killed his homosexual client by stabbing him to death. In both cases the conviction for manslaughter was based upon the applicant's diminished responsibility as a result of abnormality of mind: see Crimes Act 1900 (N.S.W.) ("the Act"), s.23A.

2. I have read the judgment of Wilson J. and I agree, for the reasons given by his Honour, that there is no basis for the adoption in Australia of the English practice of imposing indeterminate sentences of preventive detention. Like his Honour, I am fundamentally opposed to the idea that a sentence of preventive detention may be imposed in the absence of express statutory authority.

3. I also agree with Wilson J. that neither considerations of community protection nor the repetitive nature of the offence should have the effect of increasing a sentence beyond that appropriate to the offence when the offence is viewed objectively. In practical terms this means that the fact that the prisoner has previously offended or that he is likely to re-offend in like manner should be considered by the sentencing judge only as a matter militating against leniency which might otherwise be afforded by reason of considerations personal to the prisoner.

4. For the reasons given by Wilson J. special leave to appeal should be granted. It thus falls to this Court to determine whether the manslaughter of which the applicant was last convicted, when viewed objectively, warranted a sentence of life imprisonment, being the maximum sentence which may be imposed for manslaughter. Having regard to both the applicant's prior conviction for manslaughter in similar circumstances, and the evidence of his mental abnormality which renders it possible that he will re-offend in like manner in like circumstances, it may be accepted that no question of leniency arises.

5. In Veen v. The Queen (1979) 143 CLR 458 this Court considered the sentence imposed upon the applicant in respect of his first conviction for manslaughter. In the result a sentence of 12 years was imposed. In that case Mason J. (p 471) (with whom Aickin J. agreed) and Jacobs J. (p 489) allowed that a conviction for manslaughter based on diminished responsibility might warrant a sentence of life imprisonment. However, the decision in Veen was given at a time when there was a sharp distinction between the sentence required upon conviction for murder and that required upon conviction for manslaughter. As the law then stood in New South Wales a sentence of life imprisonment was mandatory in the case of a conviction for murder, and was the maximum which might be imposed in the case of manslaughter.

6. At the time of the decision in Veen, it may have been permissible to approach the question of sentencing for manslaughter based on diminished responsibility in the manner adopted in the present case by the learned sentencing judge (Hunt J.). That approach involves as a first step the assessment of the penalty appropriate to the offence without regard to the prisoner's abnormality of mind. Thereafter, it is for the sentencing judge to determine whether the penalty should be mitigated having regard to matters personal to the prisoner, including his mental condition, if considered to justify leniency in the particular circumstances. On such an approach it is not difficult to envisage, as did Jacobs J. in Veen (p 489) that in "very many cases ... the success of a defence of diminished responsibility will lead to a sentence of life imprisonment, even though that is the same sentence as in the case of a verdict for murder."

7. In 1982 s.19 of the Act was amended by the insertion of a proviso which enables the imposition of a sentence pursuant to s.442 of less than penal servitude for life on conviction for murder, but only if "the person's culpability for the crime is significantly diminished by mitigating circumstances ...".

8. The approach adopted in sentencing for murder following the 1982 amendment is as enunciated by Samuels J.A. and Lee J. in R. v. Bell (1985) 2 NSWLR 466, at pp 478 and 480-481 respectively, their Honours citing with approval the statement of Miles J. in R. v. Burke (1983) 2 NSWLR 93, at pp 105-106. His Honour there said that the correct approach to sentencing under the amended section involves "a two-fold process, initially to determine whether the mandatory sentence may be avoided by a consideration of whether there has been a substantial diminution in the quality of blameworthiness attaching to the prisoner in respect of the commission of the crime, and further, but only when it has already been decided that the mandatory sentence need not apply and the quantum of any lesser sentence has still to be determined, to evaluate the usual range of considerations going to mitigation."

9. The proviso operates by reference to "culpability", a concept which, it seems to me, encompasses diminished responsibility in its conceptual ambit. However, diminished responsibility which is occasioned through abnormality of the mind, as defined in s.23A, has additional and particular statutory significance in that it serves as a point of distinction between murder and manslaughter.

10. To treat the question of abnormality of the mind as relevant only to the question of mitigation of the penalty assessed as appropriate in cases of manslaughter based on diminished responsibility, without having regard to that abnormality of the mind in determining the appropriate sentence, seems to me to put manslaughter on the same sentencing basis as is now adopted for murder when diminished culpability is raised pursuant to the proviso. That approach ignores the distinction (now made manifest by the proviso to s.19) between diminished responsibility caused by abnormality of mind as contemplated by s.23A, and diminished culpability referable to other causes which calls the proviso to s.19 into operation. In cases of homicide the former so derogates from the gravity of the offence to constitute it manslaughter and not murder. The latter merely operates to enable reduction of the otherwise mandatory life sentence for murder by reason of considerations which justify leniency in sentencing.

11. Although diminished culpability operates to permit leniency in sentencing for murder it does so in a statutory setting in which there continues to be clear distinction between homicide offences in which diminished responsibility arising through abnormality of mind is established (by virtue of s.23A) and homicide offences involving diminished culpability referable to other factors. In the light of that distinction, the Act must be taken to presuppose that a different approach is to be taken to sentencing for diminished responsibility manslaughter from that to be taken to sentencing for murder where diminished culpability is raised. In my view, that difference is only properly reflected if diminution of responsibility, and its causally related abnormality of mind, are taken into account in the objective assessment of the appropriate punishment for diminished responsibility manslaughter. In other words, the diminution of responsibility and its causally related abnormality of mind must be seen as factors which are intrinsic to the crime, and not merely matters relevant only to the sentencing process as considerations relevant to leniency.

12. It is accepted law that a maximum sentence is reserved for the worst possible case of its kind. Where a crime of general description is defined by, or may be constituted by, a number of different sets of facts, a defined or constituting set of facts may be such as to put an offence constituted by those facts outside the category of worst possible offence: Ibbs v. The Queen (1987) 61 ALJR 525, at p 527; 74 ALR 1, at p 5. Now that diminished culpability is the criterion which serves to signify that some crimes of murder may be less deserving of punishment than others and also may be deserving of less punishment than the maximum sentence which may be imposed for manslaughter, it seems to me that diminished responsibility caused by abnormality of mind must serve to distinguish diminished responsibility manslaughter from the worst possible case of manslaughter. If that distinction is not recognized, there is no way of ensuring that mental abnormality rendering a homicide offence manslaughter and not murder will be treated as intrinsic to the offence, rather than having significance merely as a matter of mitigation if that is appropriate in the circumstances. It follows that the appropriate sentence for diminished responsibility manslaughter, when viewed objectively, must be less than penal servitude for life. What it should be, when expressed as a fixed sentence, is not a matter to be determined by this Court, which rarely entertains questions relating to sentence. It is a question which is more appropriately answered by the Court of Criminal Appeal.

13. Special leave to appeal should be granted, and the appeal should be allowed. The matter should be referred back to the Court of Criminal Appeal for it to determine the proper sentence.

14. I should add that I agree with Wilson J. that the rules governing the admission of fresh evidence do not apply to limit the receipt of additional evidence relevant to the exercise by an appellate court of its discretion in relation to appeals as to sentence.

Orders

Application for special leave to appeal granted. Appeal dismissed.