Watts v The Queen

[1991] HCATrans 37

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B21 of 1990

B e t w e e n -

DONALD KEITH WATTS

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

McHUGH J

Watts 1 8/2/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 FEBRUARY 1991, AT 2.03 PM

Copyright in the High Court of Australia

MR W.T. McMILLAN:  May it please the Court, I appear with my

learned friend, MR P.J. ALCORN, for the applicant.

(instructed by The Public Defender)

MR M.J. BYRNE:  May the Court please, I appear with my

learned friend, MS L.K. WELLS, for the respondent.

(instructed by the Director of Public Prosecutions)

BRENNAN J:  Mr McMillan.

MR McMILLAN:  Thank you, Your Honours. Mr Watts was

fourteen and a half years at the time that he

committed the offence in respect of which he

pleaded guilty.	He was 15 years of age when he was
sentenced.	The offence was one of rape involving a
girl some year or so older than he was.	He came

before Mr Justice Williams for sentence and after

the Crown prosecutor had furnished the relevant

facts and tendered the record of interview in which

the applicant admitted his complicity, His Honour,

at page 5, evinced a concern as to the proper

penalty that should be imposed. At line 28:

Obviously care and control is just

simply - care and control until he is 17 is of

no consequence to him and really the only way

I can impose any penalty at all for one of the

most serious offences in our statute book is

by dealing with him under section 63.

That was said before defence counsel made her

submissions. Perhaps, I should take the Court to

the provision - - -

BRENNAN J:  Is that because he was already under care and

control until he was 17?

MR McMILLAN:  Yes, that dealt with a power under section 62

of the Children Services Act where he could be
placed under "care and control" for a maximum

period of two years initially which would have

taken him to age 17, but then the Director of

Children Services could apply to the supreme court

for a further order directing that he be detained

under care and control for a further two years.

BRENNAN J: 

But at the time that he was before the court for

sentence was he then already under care and
control?

Mr McMILLAN: 

Yes, he was under care and control.

MR McMILLAN: 

Yes, he was under care and control.

BRENNAN J: Until 17?

Watts	2	8/2/91
MR McMILLAN:	No, until March 1990.	The sentence was

imposed in November 1989.

TOOHEY J:  Does that appear in the antecedent report, or

somewhere else, Mr McMillan?

MR McMILLAN:  Yes, it does, Your Honour. The antecedent

report is at page 31 of the record. At line 25:

Mr Farr: Yes, that's so, Your Honour, and

also he has been in custody since the time of

the commission of this offence from

23 February at the John Oxley Centre. He was

transferred to Westbrook on 18 September and

his current release date is 8 March 1990.

TOOHEY J: But if you look further down, at about line 47,

it suggests that, in fact, he was under a care and

control order until he reached the age of 17.

MR McMILLAN:  Yes. Our earlier submission needs correction,

therefore. That:

18-month care and control order -

referred to in line 42 would take him through until

he turned 17.

TOOHEY J: Well, that would not be right, would it? He

would be 16, presumably. In any event, it may not

matter because it seems that he is under a care and

control order until he turns 17 by reason of the

sentence imposed on 6 September 1989.

MR McMILLAN:  Yes.

TOOHEY J: It is not clear whether the later sentence

imposed in October 1989 was cumulative or

concurrent, if that sort of language is appropriate

to those orders.

MR McMILLAN:  Yes. It is not normally used but certainly it

would not be able to go beyond 17 in this instance.

So, in any event, it appears that he, certainly

from 6 September 1989, was to be under the care and

control of the director until 17. Of course, that

means that it need not be under strict care and

control. It is interpreted liberally by the

director and he may not be in an institution.	He
may be allowed to stay outside and still be yet
under the care and control of the director.

BRENNAN J:  I see that on page 31 it says that he was at the

John Oxley Centre from 23 February and then:

transferred to Westbrook on 18 September and

his current release date is 8 March 1990.

Watts 8/2/91

What are the powers to confine within an

institution a child of this age? Are these powers

exercised in the discretion of the director?

MR McMILLAN:  The discretion of the director, yes,

Your Honour.

BRENNAN J:  And the current release date is the director's

discretion?

MR McMILLAN:  Release from an institution would be under the

discretion of the director, yes. That is when he

is - an order has been made under section 62 of the

Act.

BRENNAN J: Yes. Well, what that comes to is that there was

no judicial power to increase penalty on him, save

under section 63, is that right?

MR McMILLAN:  Save that he could have been put in prison

under section 62, that is pursuant to 62(l)(i):

may order the child to be imprisoned for a

period not exceeding two years if the court is

satisfied that the child is so unruly or his

character is otherwise such that he should be

detained in custody other than in a home or

institution under the control of the Director.

BRENNAN J: In practical terms, does that mean, Boggo Road

or Westbrook?

MR McMILLAN: That would mean Westbrook.

BRENNAN J: Is Westbrook - that is not a gaol, is it, it is

an institution, is it not?

MR McMILLAN:  I am instructed that that would be the John

Oxley Centre.

BRENNAN J:  What would be?

MR McMILLAN:  The John Oxley Centre at Wacol, Brisbane, is a

place which has been designated for the

incarceration of children who have been imprisoned.

TOOHEY J: Is a girl of 16 a child for the purposes of this

legislation? I ask you that because of

section 62(l)(j).

MR McMILLAN: Certainly, they are a child until they are 17,

pursuant to this Act.

TOOHEY J:  I am not thinking of the offender, I am thinking of the victim. It provides:

Watts 4 8/2/91

if the offence is of a sexual nature committed

upon or in relation to a child -

certain consequences follow. In particular, it

seems that the provisions of the magistrates or the

penalties available to a magistrate's court are

somehow incorporated or have I not read that

correctly?

MR McMILLAN:  The Criminal Law Amendment Act of 1945 is the

Act where a person who cannot control their sexual

instincts can be kept in preventive detention and a

child, there, would certainly be a female under 17.

BRENNAN J:  A child is defined in section 8 as a person

under or apparently under the age of 17 years.

TOOHEY J: Would the provisions of the Criminal Law

Amendment Act 1945 - I do not want you to take us

to them at this stage, necessarily - permit the

court to impose finite sentences?

MR McMILLAN:  I·do not believe so, no. The court imposes an

initial sentence and then if it considers that the person is incapable of exercising control over his sexual instincts then imposes that preventive

detention order.

TOOHEY J: Yes, but as you put it, the preventative

detention follows upon the completion of a finite

sentence.

MR McMILLAN: That is so.

TOOHEY J:	Was that remedy available to the judge in the present case?
MR McMILLAN:	It would have been, yes. The power is there

under (j).

TOOHEY J: Yes, thank you.

MR McMILLAN: Section 62 contains quite a basket of separate

orders which a court may impose and those orders

can be cumulative. So much appears from the

paragraph in subsection (1), except that in

relation to orders under paragraph (k), the court

can only impose one of those orders. In relation

to offences other than minor offences, the court

really is confronted with imposing a fine:

order that the child be committed to the care

and control of the Director for a period not

exceeding two years -

or imprisoning.

Watts 8/2/91

That, then, leads on to section 63 which

provides that if the child would be liable to imprisonment for life or convicted of certain

specified offences, which generally are life

imprisonment or sentences of 14 years imprisonment,

a court may order that he be detained during

Her Majesty's pleasure.

MR McMILLAN:  The child so detained is deemed to be

committed to the care and control of the director,

that is in subsection (2), and a place to which the

minister may, from time to time, direct that the
child be held, can include a prison or a hospital.

The practice would appear to be that if a child is

of such a disposition when it turns 18 and the

director considers that the person should be placed

in a prison, they are then transferred to a prison

until the Majesty's decision is known as to the

persons release.

BRENNAN J:  Mr McMillan, can I just take you back to the

answer you gave to Justice Toohey a short time ago

about the Criminal Law Amendment Act under

paragraph 62(l)(j). Can you tell me whether I am

right in reading the Criminal Law Amendment Act in

Carter, section 18 at page 9336, as applicable only

if the victim of the assault is under 16 and

whether section 18 is conditioned upon a report of

medical practitioners that the offender was

incapable of exercising proper control over his

sexual instincts?

MR BYRNE:  Yes, Your Honour. Well, certainly the court

would have to go through the procedure set out in

that Act of obtaining two medical inspector's

reports.

BRENNAN J:  Was the victim in this case a child under the

age of 16?

MR BYRNE:  Yes, was 16, so it was not under 16.

BRENNAN J:  Was 16. So this section does not apply?

MR BYRNE:	Yes, that would be so, Your Honour, you are quite correct there.
TOOHEY J:	Would it?
MR BYRNE:	Except that

TOOHEY J: It depends how you read paragraph (j), does it

not, whether it incorporates the provisions of the

Criminal Law Amendment Act, whatever those

provisions may say as to the age of the child, it

incorporates the various penalty provisions of that

Act.

Watts 6 8/2/91

MR BYRNE: It is certainly a difficult point for

interpretation. Whether the draftsperson

considered that "child", as used in the

Children's Services Act, paragraph (j), would pick

up the whole of the intendment of the 1945 Act,

without looking at the specific provision of

section 18 of the 1945 Act which relates to a child

specifically under the age of 16 years.

BRENNAN J: Leaving aside paragraph (j) as containing that

difficuilty, are these the options which faced the
sentencing judge either to affirm yet once more
that the offender should be under the care and
control of the director until the age of 17, or to

order imprisonment under 62(l)(i) for a period not

exceeding two years, or to act under section 63?

MR McMILLAN:  Or, Your Honour, the court could turn to

62(4), and it has been done in Queensland, make a

recommendation that the director apply to the court

to extend that period of two years care and

control. That has been done and the practice is

that the director would follow that recommendation.

In essence, it could result in a period of four

years' custody being imposed upon the child.

DEANE J: Custody where?

MR McMILLAN:  It could be custody in an institution or

elsewhere as the director would think fit, but if
the director has asked for an extension of the

period there are obviously grave reasons why he

considers there should be further care and control.

DEANE J: But after 18 that would still have to be in an

institution other than a prison if it was an

extension?

MR McMILLAN:  He could still be kept in the John OxLey

Centre which is, as it were, a half-way

institution. In this case the sentencing judge

after intimating what was reads out to the Court on

page 5 of the record heard short submissions from
defence counsel and on page 6 at approximately line

48, the defence counsel sought:

a pre-sentence report.

There was no reports, medical reports or otherwise,

before the court, and His Honour indicated that all

that such a report would indicate is:

that he has got no respect for the law at all,
that having been placed under care and control

on a number of occasions it has not deterred

him from his criminal ways and it is

just ludicrous -

Watts 7 8/2/91

to place -

him under care and control until he is 17 for

this offence given the whole history.

Then the option of 63, or section 62(i) that is

sending him to prison is canvassed by His Honour at

page 7, line 12. His Honour considered he did not

want to deal with the lad under 62(i):

and send him to gaol. for two years because

then there is no question but that he serve

the two years in gaol.

Then, went on to point out that:

under section 63, the Minister acting on the

advice of the Director has the power to, in

effect, detain him in gaol -

or -

at institutions such as Westbrook.

At page 8 appears the sentencing remarks of

His Honour. His Honour has gone through the

background of the offences which were properly

related. This is the first offence relating to an

offence involving some violence. At line 40,

His Honour says:

I am told that the present indication is that you will be detained in Westbrook until

8 March 1990. Were I simply to place you

under care and control for a period of two

years, in effect there would be no additional

punishment imposed on you with respect to one

of the most serious crimes that can be

committed -

and then at line 50 -

It is obvious that your being under the care and control of the Director in the past

has not achieved anything. It therefore seems

that I have only two options. I could send

you to gaol for a period of two years -

under 62(l)(i) -

to do so I would have to find on the material

placed before me that your character is such

that you should be detained in custody.

and then the other option is to deal with him under

63.       He then refers to the reluctance of judges to

utilize that provision and comes:

Watts 8 8/2/91

to the conclusion that given your appalling

record and the very serious offence to which

you have pleaded guilty -

it -

calls for the operation of section 63.

And he was placed in detention under 63 for the

offence of rape.

The Court of Criminal Appeal gave its decision

through two judges. Mr Justice Kelly, the senior

puisne judge, gave reasons. So did

Mr Justice Carter. Mr Justice Derrington said that

he agreed and I will read out how the judgment was

delivered by the court. Mr Justice Kelly:

In my opinion the application for leave to

appeal against sentence should be refused.	I
publish my reasons.

Mr Justice Derrington:

I agree.

Mr Justice Carter:

I agree. I publish my reasons.

Then Mr Justice Kelly intimated:

The order of the court is the application for leave to appeal against sentence is refused.

Both judges who delivered reasons canvas the

rationale behind decisions and authorities in

Queensland relating to section 63 and they refer to

the tempering affect on section 63 detention by a

body known as "the Serious Offenders' Review

Panel". That administrative body's powers is set

out in a case of Harratt, referred to by both

judges. It is a decision of the Court of Criminal

Appeal reported at (1980) Qd R 132 and particularly

at page 140 - at the foot of page 140 over to the

top of page 141. In essence, it is a reviewing

body which reviews each detainee every three months

and the recommendations as to release are made

through the director and then through the minister

and then up to the Governor-in-Council. Of course

it has no statutory authority and is really only

there to assist the director when advising the

minister.

The problem of such an indeterminate sentence

was reviewed by Mr Justice Thomas in the decision

of McGrath. McGrath is an unreported decision and

Watts 9 8/2/91

copies are with the Court. It is decision handed

down on 20 November 1986. At page 8 of the reasons

of this unreported decision - page 8 of the reasons

of Mr Justice Thomas - half-way down that page, he

says:

A consideration tending to support the

making of an indeterminate detention order

under s. 63 is that release can be achieved at

any time once the person demonstrates that he

is ready for release. On the other hand the

actual operation of s. 63 may be thought to

militate against rehabilitative goals.

Experience in sentencing procedures, including

the assistance the courts receive from

officers of the Children's Services

Department, suggests that offenders under such

a sentence tend to live in a kind of limbo,

with poor motivation for co-operation or

treatment because no firm date for release can

be given them. Preparation for release is

hampered, because the release date is not known, and the existence of a goal or the making of specific plans for the future is

impossible.

In many of the decisions that have been handed

down concerning section 63, the courts have

complained about the position that they are placed

in in that they are placed somewhere between a rock

and a hard place. As Mr Justice Stable said years

ago, in Queensland, the contrast is between a tap

with a feather and placing the person into
preventive detention.

Turning back to the judgment of this court,

the Court of Criminal Appeal, the question of
whether a pre-sentence report should have been

obtained is addressed by Mr Justice Kelly at

page 36 at line 20. His view is that:

Whilst no doubt there are a number of

occasions on which such a report would be of

assistance, it is certainly not the case that

such a report should be sought as a matter of

course when consideration is being given to

the making of an order under section 63.

DEANE J: Mr McMillan, was nothing at all called on behalf

of your client?

MR McMILLAN: Nothing at all, no, Your Honour.

DEANE J: Well, we know from the record of interview that he

has a mother.

MR McMILLAN:  Yes.

Watts 10 8/2/91

DEANE J:	Does it appear whether he has a father?
MR McMILLAN:	We cannot say as to that.
DEANE J:	I am asking you about the record, about the

material before the judge on sentencing.	Did it
indicate whether he had a father?

MR McMILLAN:  The only material before the judge on

sentencing was the antecedents.

DEANE J: That is that page on page 31?

MR McMILLAN: That is so. That is all the judge had before

him.

DEANE J: Is there anything that indicates what he stole?

MR McMILLAN:	The stealing?
DEANE J: Yes.
MR McMILLAN:	No, Your Honour.  Stole in relation to this

particular offence?

DEANE J:  No, in relation to the page 31 offence. I mean,

were they matters of $1 from some other school

student's handbag, or was it - - -

MR McMILLAN:  No, we cannot assist you there, Your Honour.

Certainly, it was an unimpressive record as far as

offences of dishonesty were concerned, but as to

the actual particulars - - -

DEANE J: Well, when you are dealing with a fourteen and a

half year old, I would have thought you would need

to know what had been stolen and the circumstances

of the stealing.

MR McMILLAN: Yes. Certainly, one can see the relevance.

DEANE J: Well, was anything said by the representative of

your client to explain why no material was put

before the sentencing judge?

MR McMILLAN: Inquiries were made. In fact, I spoke to the

defence counsel. It seems that there was in the

back of the court the Department of Childrens

Services representatives and that is always the

procedure where a child is before the court. Often

the sentencing judge will call upon the officers of
the department to say anything that is relative to

sentencing. This was not done in this case. The

defence counsel certainly pitched their argument

towards a pre-sentence report.

Watts 11 8/2/91

DEANE J:  But counsel could have asked that further details

be obtained from those people.

MR McMILLAN:	Yes.
BRENNAN J:	Or could have put forward herself whatever

information she had from him.

TOOHEY J: In fact, the record of interview might suggest

that some psychiatric evidence would not have gone

amiss.

MR McMILLAN:	I would not argue with that, Your Honour.
DEANE J:	But counsel did not seek to lead any?
MR McMILLAN:	No, counsel did not. All that can be said in

defence of counsel's attitude is that it is

certainly not unusual to have a pre-sentence report

directed - a preparation directed when a child of

this age is before the court on a serious offence.

We cannot take that any further but certainly it

would explain why counsel did not have material

before the court.

DEANE J:  And no adjournment was sought on behalf of your

client?

MR McMILLAN:	No specific adjournment except -
DEANE J:	I know what was said about it - - -
MR McMILLAN:	Yes, she asked for it and asked for the

adjournment to obtain that report, but not

specifically could the matter be adjourned to put

material from her side before the court.

DEANE J:	Where is that in the transcript?
MR McMILLAN:	At page 6, line 44.
DEANE J: Thank you.
MR McMILLAN:	In my submission, she have referred to the case of Harratt where a psychiatric report had been
obtained.  She says:

In my submission, that is the sort of

situation where section 63 is used. If

Your Honour is considering section 63, I would

ask for a pre-sentence report to be obtained

before any sentence was passed down.

BRENNAN J:  Mr McMillan, is a pre-sentence report something

which is provided for under the statutes?

Watts 12 8/2/91

MR McMILLAN:	Under the Corrective Services Act, 1988, which would have been in force at the time, there is
provision - section 263 - it is in volume 2 of
Carter at page 15,969.
BRENNAN J:	What is the section?

MR McMILLAN: Section 263.

BRENNAN J:  And so it has to be required by a court, does

it?

MR McMILLAN: That is so. Yes, certainly a defence counsel

cannot seek it privately.

BRENNAN J: Now, one other question: this review panel, or

whatever it is called, it is not a statutory body?

MR McMILLAN: It is not a statutory body.

BRENNAN J:  And so there is no judicial control of its

activities?

MR McMILLAN:	None at all, Your Honour.
BRENNAN J:	So that at this time this was the last occasion

when the judicial control of this prisoner would be

lost?

MR McMILLAN:  That is so. From that point onwards it was in

the hands of the administrators.	My learned junior
has directed my attention to page	7 of the record
where defence counsel says, about	two-thirds of the
way down:

I cannot defend the history at all,

Your Honour. All I am submitting is that if you are considering section 63 then there

should be a pre-sentence report and there is a

lady from Children's Services here who has

asked for the same, Miss Jackie Phipps-Ellis.

Now that invitation to hear from a representative	of the department was not taken up by His Honour.
In a nutshell, our complaint is that with such a
Draconian order as an option, His Honour proceeded
without any material at all of any significance
which dealt with the background to this offender,
whether he was capable of rehabilitation and
explanations for the series of offences which he
had already committed and been dealt with.
To return to the reasons for judgment of the court, at page 37 Mr Justice Kelly at line 35,
accepts that:

Watts 13 8/2/91

The making of an order under section 63

providing as it does for an indeterminate

period of detention obviously requires the

most careful consideration and as the learned

judge rightly observed the court has been

reluctant to act under that section.

At page 38 His Honour appears to indicate that a

section 63 order can be supported by reason of the:

applicant's appalling record.

That is at line 40.

TOOHEY J:  Mr McMillan, I am not clear what argument is

being put to us. Is it being said that under no

circumstances in this particular case should an

order have been made under section 63, or that at

least before making an order under section 63 or

deciding whether to make such an order, the judge

should have called for a pre-sentence report, or is

it something else?

MR McMILLAN:  It is something else, Your Honour. We would

not seek to limit the sentencing judge's discretion

to particularly a pre-sentence report, but to

sufficient material to guide him or her in arriving

at a proper decision. The elements which should

concern the judge are the circumstances surrounding

the offence, and also whether the offender is a

danger to the community, and we seek support in

making that submission in relation to the decisions

of this Court in Veen, both (No 1) and (No 2), and

Chester. Chester, of course, dealt with

indeterminate imprisonment in Western Australia,

and the Court there dealt with the rationale before

a court should proceed to imprison a person

pursuant to preventive detention.

TOOHEY J: Could I just put the question perhaps a little

more precisely. Are you saying that none of the

circumstances applicable in this case could have justified an order under section 63?

McMILLAN: Yes, Your Honour, as the circumstances were

before the sentencing judge.

TOOHEY J: That is not the question I put to you. I said

are you saying that none of the circumstances
applicable in this case could have warranted an

order under section 63?

McMILLAN:  I cannot answer that with a definite yes or no,

Your Honour, because the answer is pitched as to

the amount of material. There was insufficient

material for the sentencing judge to make such an

order.

Watts 14 8/2/91

TOOHEY J: Yes, I understand that.

McMILLAN:  Mr Justice Carter takes a similar view to

Mr Justice Kelly, but seeks to distance section 63

from the preventive detention provisions of Acts

such as the statute being looked at in Chester.	At
page 43 he says at line 32:

In my view the rationale for the

legislative provision contained in s.63 of the

Children's Services Act is different from that

which is manifest in the statutory provisions

which are concerned with the detention of

habitual criminals.

He then goes on at line 49:

The provisions of s.63 of the Children's Services Act however, whilst cast in language not dissimilar from the habitual criminal

provisions, reflect a different legislative

intent.

On the following page he goes on to look at how it

is rather pitched in a way to assist in the

rehabilitation of a young offender, and finalizes
his review of section 63 with the operation of the

Serious Offenders Review Panel.

Our submission on that point is that there is

nothing in section 63 which refers particularly to

the rehabilitation of the offender. He could be

placed in a prison at age 18 and stay there until

the minister makes a recommendation to the Governor

in Council.

TOOHEY J: That is not right, is it? Is there not a

provision that precludes anyone being detained in

prison after reaching the age of 19?

MR McMILLAN:  Not in relation to section 63, Your Honour.

That was in relation to orders under section 62,

certainly not under section 63. That is

section 62(4), and the final paragraph of that

subsection reads:

A court shall not order a person to be so

committed for a period which would extend
beyond the date such person attains the age of

nineteen years.

TOOHEY J: Yes, thank you.

DAWSON J:  And it is provided expressly in section 63 that -

A child so ordered to be detained shall

continue to be detained ..... notwithstanding

Watts 15 8/2/91

that in the meantime such child has attained

the age of eighteen years.

MR McMILLAN:  The particular vice of section 63 is that it

places the welfare, rehabilitation in particular,

in the hands of the administrators and takes away

from the court the role of deciding when the person

should be released from incarceration. That is

more felicitously expressed by Chief Justice Street
in Page, (1977) 2 NSWLR 173, at page 174.

Certainly we do not have to remind the Court

as to the seriousness of incarceration pursuant to
sections such as section 63. Chester certainly

addressed that.

BRENNAN J: That is self-evident and familiar, I think, is

it not?

MR McMILLAN:  Yes, Your Honour. We do not need to take that

any further. In Veen (No 1), His Honour

Justice Mason and Justice Aickin were in the

minority and the reason for their being in the

minority was that both Justices considered that

there was insufficient material on which an order

could be made.

At page 472 of Veen (No 1), 143 CLR 458, approximately point 5, Justice Mason said:

In my opinion, the trial judge should

have called for further expert evidence with a

view to obtaining a more satisfactory picture

of the applicant's condition and of his alleged dangerous propensities. As the evidence stands, I do not think that it justifies the imposition of life sentence on

the footing that the applicant will be a

danger to the community if he is released at

the end of a fixed prison term.

Similar remarks are made at page 498 by

Justice Aickin.

BRENNAN J:  Nobody suggests that this is a case like Veen,

is it?

MR McMILLAN:	No, no one suggests that at all but principles similar to what are being enunciated there, in our
submission, equally apply here, that there was just
insufficient material before the sentencing court
when the sentencer came to the point of making an
actual order under section 63.

DAWSON J: It depends how you view the indeterminate

sentence, if I might put it that way. The natural

reaction is to say it is a bad thing and should

Watts 16 8/2/91

only be reserved for extreme cases and that is

said - and that is any lawyer's reaction anyway.

But obviously the legislature did not view it that

way. They viewed it as a salutary measure; gave a

degree of flexibility that was in the interests of
the child and a degree of flexibility which was not
otherwise available, particularly with a gaol
sentence. Those are two quite different views.

Obviously the legislature did not view it as a repressive measure, which is the way the lawyer

tends to look at it. Now, who is right and who is

wrong is another question, but - - -

MR McMILLAN:  The legislature may not have viewed it that

way but, in practice, it does work out to the

detriment of the child.

DAWSON J:  I do not know that it does but there is the

potentiality that it may.

MR McMILLAN: Potentiality, yes, Your Honour, we take your

point.

TOOHEY J:  You see, it might be useful to know, for

instance, how this has worked in practice, how long

juveniles have been detained by reason of these
orders. It does not strike at the principle but if

you are complaining about the operation of the

section then it might be useful to have that sort

of information.

MR McMILLAN:  We sought to make inquiries to meet such a

point but were unable to obtain them.

TOOHEY J:  As I understand your case, Mr McMillan, it is a

fairly simple one. It seems to be that section 63

was available to the judge but, given the

implications of that section, he needed to be

satisfied in the light of all the relevant material

that there was no other form of punishment

appropriate in this case.	Is that the way you are
putting it?

MR McMILLAN: That is our case, Your Honour, it is a simple

point.

BRENNAN J:  I think we have seized of that point now,

Mr McMillan.	Is there anything which you wish to
add to it?

MR McMILLAN:  Having acceded to what one of your Justices

has put to me as being our point, there is nothing

further can be said.

MR BYRNE:  If the Court please, we have an outline.

BRENNAN J: Yes, Mr Byrne.

Watts	17	8/2/91
MR BYRNE:	May the Court please.	My learned friend makes

the point that the particular vice of section 63 is

that it takes control of the welfare and placement

of the child out of the province of the courts.	It
is submitted, firstly, that the nature of the
legislation, that is, the Children's Services
legislation has that effect in any event.	Wide

discretions are given to the Director of Children's

Services whether an order is made pursuant to

section 63 or under section 62. The director has

discretions as to placement, whether that placement

should be in custody or whether it should be in

another place.	So that argument does not advance
it.

The Court of Criminal Appeal, as my learned

friend has said, has been seized of the

difficulties inherent in the limited sentencing

options for some time. As long ago as it is now,

in 1977, in the unreported decision of Kirk, of

which I have provided copies, it is Court of Appeal

No 197 of 1977, the court had to consider an order

made under this provision. His Honour

Mr Justice Stable, on page 4 of the unreported

judgment, dealt with what he described as the

"feather bed treatment" under section 62 and he

called for, at about point 5 of the page:

urgent investigation and for reform.

Now, between the time that the judgment in

Kirk was handed down and the time the matter was considered in East - that is an unreported decision

in 1979, Court of Appeal No 82 of 1979 - there had

been what we submit was regarded as reform, that

reform being not legislative but in the

establishment of the Serious Offenders Review

Panel. It is noted that Kirk was considered in the

judgment in East and His Honour Mr Justice Dunn,

who was on the court in Kirk, noted specifically in

East that the section 63 order made there was:

not manifestly excessive ..... firstly -

because -

the Minister may ensure that -

he is -

not transferred to prison -

and -

secondly, there exists the Serious Offenders

Review Panel ..... and, thirdly, the Court is,

in my view, entitled to reply on

Watts 18 8/2/91

ad.ministration of the legislation which is

fair both to the offender and to the

community.

That is on page 4 of His Honour's judgment.

That approach has been consistently followed

in the sentencing patterns which are demonstrated

by the later reported and unreported decisions

which I have set out in the written submissions.	I
will not take the Court to all of those.

DEANE J:  Have you provided us with copies of all the

unreported ones?

MR BYRNE: Yes, I have, Your Honour. In particular, if I

can take Your Honours to one more, that is a

decision of Dawson. That is a decision in 1986,

332 of that year; judgment actually delivered in

1987. Dawson may be of some assistance. In that

case it was a rape; the applicant was 16 years of

age. The court noted on page 2 at about line 15

that there was a surprising paucity of detail

presented to the court regarding the applicant's
background. All it seems to have been placed
before the sentencing judge was that he was an

Aboriginal who spent his early years at Cherbourg

and the other particulars which are there set out.

The judgment there of His Honour

Mr Justice Thomas with whom the Chief Justice

agreed, at about line 50 on page 2, said this:

It may be observed that the sentencing

option which the learned sentencing judge
chose does allow more effective monitoring of

the applicant and a determination of when he

may be more effectively released into the

community and the circumstances in which this

can be effected, than would be achieved by a

short period of care and control.

That also is a consistent matter taken into account

by sentencing tribunals in Queensland and,

certainly, by the Court of Criminal Appeal.	It is
expressed clearly, in our submission, by the

judgment of His Honour Mr Justice Carter, in the

present case where His Honour looks at the

legislative framework. This is not an Act which

deals with preventive detention in any shape,

manner or form as was the case in Chester or Veen

for that matter. This is an Act dealing with the

welfare, primarily, of children and section 63 is

one of the provisions allowing the court to deal

with children who have offended.

Watts 19 8/2/91

The material placed before the learned

sentencing judge in the present matter, it is

conceded, consisted principally of his prior

criminal history. It also consisted of such
material as counsel appearing for him wished to
place before the learned sentencing judge. Counsel

there did give some details, on page 6 of the

record. She told the court that the applicant had

six sisters and two brothers aged between three and

17 currently living at Goodna with the applicant's

parents; the applicant's mother was in court for

the sentencing process; he was the second eldest

of the family; he was educated half-way through

grade 9; he had had some employment; he was in a

good state of health; he drank heavily but did not

have a drinking problem and that seems to be the

extent of the material placed before the learned

sentencing judge.

We make the submission that it was not a

requirement for the sentencing judge to exercise

his discretion to order a pre-sentence report in

this case. He had before him certain background

material and defence, particularly, were at liberty

to place before him such material as they wished.

As has been noted in argument, an adjournment could

have been asked for or material could have been

brought to court in anticipation.

The powers to obtain such an order are in the

Corrective Services Act, as my learned friend has pointed out. There is also specific provision to

obtain orders under section 62 of the Children's

Services Act itself. Under subsection (1) the

court is given jurisdiction that it - - -

DEANE J:  What significance do you say we should place on a

failure by the defence to produce material and the

like when the accused is a child?

MR BYRNE:  When the accused is represented by counsel I

believe it is a factor.	It must be given some
weight.

DEANE J: It is obviously a factor, but I am just asking you

what significance does one place on the fact that

those representing a child have not, to quote you,
taken advantage of the liberty to obtain and

furnish to the court reports and the like?

MR BYRNE:  The significance, we submit, is it makes it more

difficult for an applicant to challenge a decision

on the basis of the absense or the paucity of

material placed before the sentencing court.

DAWSON J: Well, you cannot assume that the material would

have been in favour of the accused.

Watts 20 8/2/91

MR BYRNE: Certainly the learned sentencing judge considered

that, Your Honour, yes. He considered, given the

criminal history or the background of this

applicant, it may not have been in his favour.

DEANE J:  Though counsel did ask that a pre-sentencing

report be obtained and informed His Honour that the

representative of the department took the view that

such a report should be obtained.

MR BYRNE: Quite so, Your Honour. That was said. It was

not taken a step further, and these are all

peripheral matters really, but it was not taken

that step further to call that person to see what

assistance she could give to the court.

DEANE J: Well it was not suggested by anybody that

counsel's statement of the departmental officer's

view was other than completely accurate?

MR BYRNE:	No, certainly not, Your Honour.
DEANE J:	And it would have been for the Crown to make that

suggestion, I would have thought.

MR BYRNE:  The Crown said very little in relation to

obtaining a report.

TOOHEY J:  I think it is of some importance, Mr Byrne, to

note that counsel was not asking for a pre-sentence

report at large. What counsel was saying is, if

you are going to make an order under section 63, or

are considering such an order, then a pre-sentence

report should be obtained. If the judge was minded

to make some other order, then it is conceivable

that a pre-sentence report would have not been of

any assistance whatsoever, so I do not think it is

appropriate, as it were, to fasten upon the failure

to ask for a pre-sentence report or the failure to

obtain one. It is a question of whether the judge

ought to have had all relevant material before him

before making an order under section 63.

MR BYRNE:  Yes, we accept that. Our submission, of course,

is that His Honour had sufficient material before

him to make that determination.

DAWSON J:  I was going to ask that, I mean, was could a pre-

sentence of the court possibly contain which would

have been of assistance to His Honour, with the

limited choice which he had?

MR BYRNE:	It would, in our submission, at least have demonstrated, which was apparent to His Honour,
that the applicant here had demonstrated certain anti-social behavioural patterns in that he
continued to commit offences.

Watts 21 8/2/91

DAWSON J:  I mean, even if His Honour assumed that the

accused was one of the best candidates possible for

rehabilitation - well that is about what it would

amount to, would it not? Would that have weighed

on His Honour's mind.

MR BYRNE:  Even assuming it was that favourable - - -

DAWSON J: Or, alternatively, if there is an explanation for

the accused's behaviour which meant that it just

was not simply a criminal disposition on the

accused's part with no explanation, would that have

assisted His Honour?

MR BYRNE: It still comes back, in our submission,

Your Honour, even with that information,

His Honour's options were quite limited.

His Honour could have effectively imposed no

additional punishment.

DAWSON J: 

Why?

MR BYRNE: 

He c9uld have sent him to prison, which I do not

believe my learned friend is submitting, was an
appropriate course, or he could have made the order

under section 63, which allows the experts to
monitor his progress and make determinations as to

his progess.  So whatever the material contained in

such a report was, the option taken by His Honour,

we submit, the only practical one in the
circumstances.

TOOHEY J: 

When a judge makes an order under section 63, is

it customary or does it happen at all that the

judge makes some sort of recommendations to the

minister as to where the juveniles should be held

or what length of time might be appropriate,

anything that might bear upon the decision by the

panel?

MR BYRNE:  Dealing with the first part of Your Honour's

question, no, I have not seen it done in relation

to where he is to be kept because that is, we would

submit, a matter primarily within the province of

the director. As for the second part, the length

of detention, yes, that has been done and was done in the matter of Hutton v Reg, again an unreported decision of the Queensland Court of Criminal

Appeal, No 380 of 1987. The court there consisting

of Justices Kelly, Macrossan and Derrington,

considered a charge of attempted rape on which a

section 63 order had been made. The judgment of

His Honour Mr Justice Kelly, with whom the other

members of the court agreed, said this at page 3 of

outline 35:

Watts 22 8/2/91

I would only add this for the guidance of
those who may be ultimately concerned with the
period for which the applicant should be

detained; that in my view that period should

not be more than three years, although I would

also add that that is not to be taken as an

indication that the applicant should

necessarily be detained for that period.

TOOHEY J: Yes, thank you.

MR BYRNE:  So, the court has been known to do that but it

still remains, of course, within the discretion of the director and that is the framework of the Act.

BRENNAN J: 

What it came to in this case is that the judge

decided first that he was not going to give him
simply care and control at 17 because he was

already subject to that.

MR BYRNE: 

Yes, Your Honour.

BRENNAN J: Then, he had to face the prospect of giving him

two years in jail and he did not want to send this

lad to jail.

MR BYRNE: That is so.

BRENNAN J:  And, all that was left was section 63.

MR BYRNE:  Yes. And, in the circumstances, it could not be

said, we submit, that (a), it was manifestly

excessive to do so, or (b), that there was an error

of principle.

DEANE J:  Would you agree that the sentence in this case had

to be determined on the basis that before any

sexual attack by the applicant, the girl had taken

his penis in her hand?

MR BYRNE:	That was certainly put up on behalf of the applicant and - - -
DEANE J: Did the Crown lead any evidence contrary to that

effect?

MR BYRNE:  No, it certainly did not, Your Honour, and I do

not believe that is inconsistent with what is in

the record of interview either.

DEANE J:  I do not think that was ever subsequently

qualified in the record of interview.

MR BYRNE:  I believe that is correct, Your Honour, so, yes,

I would have to accept that.

Watts 23 8/2/91

DEANE J:  Which means the sentence had to be imposed on that

basis?

MR BYRNE: Quite so. Unless there is something further,

those are our submissions, Your Honour.

BRENNAN J:  Thank you, Mr Byrne. Mr McMillan?

MR McMILLAN:  Your Honour, it was mentioned in our

submissions earlier, but there is one other option

available to the sentencing judge apart from the
three that Your Honour the presiding Judge directed
to our learned friend, and that is under 62(4), the

judge could have made a recommendation that the director apply for an extension of the two year

period, and that has been done.	Thank you,
Your Honours.

BRENNAN J:  The Court will adjourn briefly.

AT 3.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.23PM:

BRENNAN J: Having regard to the sentencing options open to

the trial judge, the majority of this Court

consisting of Justice Dawson, Justice McHugh and

myself, are satisfied that there was no error of

sentencing principle. It follows that special

leave will be refused.

All members of this Court are agreed that the

views of the Supreme Court of Queensland, with

reference to the limits of the sentencing options

open under the Children's Services Act 1965-1980,

deserve urgent consideration by the legislature.

At 3.24 PM THE MATTER WAS ADJOURNED SINE DIE

Watts 24 8/2/91