Yarran v The Queen
[2003] WASCA 130
•18 JUNE 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: YARRAN -v- THE QUEEN [2003] WASCA 130
CORAM: MALCOLM CJ
ANDERSON J
MCKECHNIE J
HEARD: 2 MAY 2003
DELIVERED : 18 JUNE 2003
FILE NO/S: CCA 194 of 2000
BETWEEN: MALCOLM ROBERT YARRAN
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Indeterminate sentence - Principles to be applied - Sexual offences - Evidence - Role of presentence report and psychological and psychiatric reports
Legislation:
Sentence Administration Act 1995 (WA), s 14
Sentencing Act 1995 (WA), s 98
Result:
Application refused
Category: A
Representation:
Counsel:
Applicant: Mr B S Hanbury
Respondent: Mr P J Urquhart
Solicitors:
Applicant: Beau Hanbury
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Chester v The Queen (1988) 165 CLR 611
Garlett v The Queen [2000] WASCA 72; (2000) 111 A Crim R 336
Jones v The Queen, unreported; CCA SCt of WA; Library No 980246; 8 May 1998
Lowndes v The Queen (1999) 195 CLR 665
McGarry v The Queen (2001) 184 ALR 225
Pendleton v The Queen [2002] WASCA 4
R v Moffatt (1998) 2 VR 229 at 255
Thompson v The Queen (1999) 73 ALJR 1319
Yarran v The Queen [2001] WASCA 52
Case(s) also cited:
Clinch (1994) 72 A Crim R 301
Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993; (1993) 20 WAR 201
Mill v The Queen (1988) 166 CLR 59
Narrier v The Queen [2000] WASCA 86; (2000) 111 A Crim R 405
R v Dunstan, unreported; CCA SCt of WA; Library No 990074; 19 February 1999
R v Richards [1999] WASCA 105
R v Walsh, unreported; CCA SCt of WA; Library No 950385; 4 August 1995
Thompson v The Queen (1992) 8 WAR 387
Thompson v The Queen [2000] WASCA 186; (2000) 113 A Crim R 295
Wayman v The Queen [2001] WASCA 326; (2001) 126 A Crim R 203
Wongawol (1998) 101 A Crim R 350
MALCOLM CJ: In my opinion, there was an arguable case on an appeal so that leave should be granted. I consider, however, that the appeal should be dismissed for the reasons to be published by McKechnie J.
ANDERSON J: I agree that leave to appeal should be refused for the reasons given by McKechnie J. There is nothing I can usefully add to those reasons.
MCKECHNIE J:
Introduction
The single ground of appeal is that, in all of the circumstances, the learned sentencing Judge erred in making an order that the applicant be imprisoned indefinitely.
The applicant, either by plea of guilty or consequent upon trial, was convicted of 53 offences. Counts 1 to 16 related to events occurring on 16 April 1993 at Northam. Counts 17 to 34 related to events occurring on 10 July 1993 at Northam. Counts 35 to 52 related to events which occurred on 13 March 1994 at Midland. The applicant pleaded not guilty to this group of offences but was convicted after trial.
The facts were briefly summarised by Judge H H Jackson as follows:
"Counts 1 to 16 consisted of one count of burglary; eight of aggravated and indecent assault and seven of aggravated sexual penetration.
Counts 17 to 34 consisted of one count of burglary, three of indecent assault and 13 of sexual penetration, as well as one count of threat to prevent a lawful act. Counts 35 to 52 were separated off to a new indictment for the purposes of trial and consisted of one count of burglary, one of unlawful detention, three of aggravated indecent assault, 11 of aggravated sexual penetration, one of attempted aggravated sexual penetration and one of making a threat to kill. The facts of these various matters are chillingly similar. In 1993 the offender was living in Northam and in 1994 in Midland. On the nights in question he broke into houses in which a young woman was living, in the night‑time.
It seems he had walked the streets and watched out to deliberately find such situations. In the first case the woman was alone. In the other two there were children in the house. In the first case he was either armed with a knife or pretended to be and in the third case he was in fact armed and he threatened to kill each of the two women involved. Over significant periods of time in each case he repeatedly degraded and humiliated the woman by indecently dealing with them, sometimes inserting either his fingers or tongue or some object into their vaginas or mouths, as well as penilely penetrating them. In the first case, for example, he also inserted his fingers into the victim's anus, compelled her to masturbate him and penilely penetrated both her vagina and her mouth.
In the second case he turned a hockey stick, with which the victim had tried to defend herself, into an object with which he penetrated her vagina and her mouth and he also put a spoon into her vagina, in addition to which he inserted his finger into her anus as well as penilely penetrating her vagina, anus and mouth. In the third case he used a cricket bat with which the victim had tried to defend herself, as well as a knife handle, to penetrate her vagina and he inserted the knife handle into her mouth and he attempted penile penetration of her anus and made him masturbate her - made her masturbate him as well. During this night's events the woman's children were awake in the house and calling out to their mother. He made threats to kill both the first and third of the victims should they tell police.
In each case, in each of the three cases, he apparently left the house in a calm mood and after an extended period of time. …"
The Judge correctly described the offences as "horrendous".
This summary discloses predatory offences of sustained and deviant sexual violence on three different women. It is accepted by counsel for the applicant that they were offences of exceptional seriousness.
The Judge imposed an effective sentence of 17 years after applying some discount from an indicative sentence by reference to the pleas of guilty in some cases and also by application of the totality principle. The trial Judge considered, but declined to make, a parole eligibility order pursuant to the Sentencing Act s 89.
The principles relating to indefinite imprisonment
(a) The legislation: The Sentencing Act 1995
The discretion to impose an indefinite sentence of imprisonment was enlivened because the Judge imposed a term of imprisonment for an indictable offence and did not suspend that imprisonment or make a parole eligibility order: s 98(1).
To make an indefinite imprisonment order the Judge had to be satisfied about further matters:
"s 98.…
(2)Indefinite imprisonment must not be ordered unless the court is satisfied on the balance of probabilities that when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society, or a part of it, because of one or more of these factors:
(a)the exceptional seriousness of the offence;
(b)the risk that the offender will commit other indictable offences;
(c)the character of the offender and in particular -
(i)any psychological, psychiatric or medical condition affecting the offender;
(ii)the number and seriousness of other offences of which the offender has been convicted;
(d)any other exceptional circumstances.
(3)In deciding whether an offender is a danger to society, or a part of it, the court -
(a)is not bound by section 6 but is bound by any guidelines on the imposition of indefinite imprisonment in a guideline judgment given under section 143; and
(b)may have regard to such evidence as it thinks fit."
(b) The authorities
The provisions of the Sentencing Act s 98 and equivalent provisions have been the subject of considerable recent judicial consideration. There are a number of principles relevant to the disposition of this appeal which may be extracted from the cases:
•The fundamental proposition is that the power is to be sparingly used and then only in clear cases.
•The extraordinary nature of punishment by way of indeterminate detention requires that before the sentencing Judge imposes it, he or she should be clearly satisfied by cogent evidence that the convicted person is likely to be a constant danger to the community.
•The concept of danger to society, or a part of, it may also involve difficult questions of judgment.
•A Judge should act with much care and caution before making a finding adverse to the offender.
•Neither s 98(1) nor s 98(2) of the Sentencing Act obliges a sentencing Judge to make an order for indefinite imprisonment in every case in which the conditions specified are met.
•A sentencing Judge has a discretion in deciding whether or not to make an order for indefinite imprisonment.
•There may be a substantial degree of commonality between the facts which were relevant to the discretionary considerations which arise under s 89 and the facts which are relevant to the discretionary considerations which arise under s 98.
•The effect of s 98(2) is that the condition of the exercise of the power is that the court is satisfied, on the balance of probabilities, that at a future time when the offender would otherwise be released, he or she would be a danger to society or a part of society because of one or more factors. Thus, what is involved is a decision about a state of affairs that will exist at a time which may be several, perhaps many, years ahead. The relevant state of affairs is the form of danger. That will usually involve an evaluation of risk and perhaps of steps which may be taken to avoid or reduce the risk.
•More than the probability of a further offending must be shown. Read as a whole, and giving due weight to the repeated reference to "exceptional", s 98(2) requires attention to whether, were the offender to be released at the end of the nominal sentence, the offender would engage in serious criminal conduct, consequences of the commission of which could properly be called grave or serious for society as a whole, or a part of it, then and only then could it be concluded that the offender would be a danger to society or a part of it.
•Questions of proportionality do not fall to be considered in deciding whether to make an order for indefinite imprisonment although imposition of a relatively short nominal sentence may well suggest that the offender's conduct on that occasion was not such as to warrant the description of the offender as "a danger to society, or a part of it".
•The indefinite imprisonment operating cumulatively upon the service of the nominal sentence is to be imposed expressly as a form of preventative detention against the risk of the commission of serious offences in the future.
•The sentencing court may have regard to the fact that an offender sentenced to indefinite imprisonment may be released at any time after the sentence of indefinite imprisonment begins by means of a parole order made under the Sentence Administration Act.
•Where there is any possibility that an order for indefinite imprisonment might be made, it is essential that procedures observed should be regular and scrupulously thorough and that the materials, including the pre‑sentence report, should be as adequate and complete as fairness to the offender requires.
•When required to make a determination whether an offender is a danger to society in the future, ordinary principles of reasoning would lead to the view that one of the factors to take into account is what the offender has done in the past.
•The probability of danger needs to be demonstrated by clear evidence of the risk that the offender will commit further indictable offences on release which may be offences against the person or against property or both.
•Because sentencing Judges who are asked to make an order for indefinite imprisonment are required to make a prediction about future behaviour, there will usually be a very large amount of material which is relevant to that question.
•Although a pre‑sentence report obtained at the request of the court may provide some material which is relevant, it is not to be expected that a report of that kind will ordinarily suffice to found such an application.
•It is expected that the prosecution would place all available and relevant material at its disposal before the court.
•If it is contended that the offender has some psychiatric condition which predisposes him or her to reoffending, it is expected that the prosecution would lead expert evidence about that matter.
•If reliance is placed upon the offender's past conduct, full details of that conduct, including all of the evidence related to it, should be available to the sentencing Judge.
•The possible outcome of an offender's participation in the Sex Offenders' Treatment Program and additional therapeutic input should be taken into account.
•It will be normally expected that a psychiatric, as well as a psychological report, will be provided and that those reports will focus on the likely condition of the offender at the time when he or she would otherwise be released from custody in respect of the nominal sentence. It will be normally undesirable to sentence an offender to an indefinite term of imprisonment upon the report of one person alone.
•In the majority of cases, oral evidence will be appropriate so that expert opinions may be tested in court.
These principles are distilled from the following cases: R v Moffatt (1998) 2 VR 229 at 255; Chester v The Queen (1988) 165 CLR 611; Briginshaw v Briginshaw (1938) 60 CLR 336 at 347; Lowndes v The Queen (1999) 195 CLR 665 at 671 at [12]; McGarry v The Queen (2001) 184 ALR 225 at [23]; Thompson v The Queen (1999) 73 ALJR 1319 at [18]; Garlett v The Queen [2000] WASCA 72; (2000) 111 A Crim R 336; Jones v The Queen, unreported; CCA SCt of WA; Library No 980246; 8 May 1998 at 14 and Pendleton v The Queen [2002] WASCA 4 at [40].
A summary of the evidence relevant to indeterminate imprisonment order
With those principles in mind, I turn to an analysis of the Judge's decision to impose intermediate imprisonment in this case, commencing with a summary of the evidence before him.
The trial Judge had the advantage of taking the pleas of guilty and presiding over the trial and was therefore familiar with the circumstances. After conviction following trial, the Crown indicated, on 23 June 2000, that it would seek an order under the Sentencing Act s 98 and that it would, as it subsequently did, file written submissions and provide other material. On the day of sentence the trial Judge indicated that he had received the following documents:
"… not only the antecedent report in the usual form but a pre‑sentence report dated 20 July to which is attached a psychological report from the prison services sex offender treatment unit dated 19 July; a psychiatric report signed by Dr Pullela from the health services of the prison services and I have received submissions from the crown which include victim impact statements from each of the three women and a summary of prior relevant offences and I have received from Mr Bayly an outline of sentencing submissions and in each case a list of authorities which to some significant extent overlap. If I didn't mention it, also the crown's outline of sentencing submissions, so I have received and read all of those materials prior to this morning."
I will set out in some detail the various matters which were before the Judge.
The antecedent report
The antecedent report disclosed that the applicant was born on 13 January 1965 and was therefore 35 years old at the time of sentence. He was the middle child in a family of nine and his mother was still alive. His education commenced at the age of six years and was completed at the age of 16 years. He married in 1983 and has five children with whom he lived and was maintaining. He was employed as a seasonal farm worker for 16 years.
The criminal record disclosed in the antecedent report and amplified in the Crown's submissions to the Judge
The applicant's offending as an adult commenced with a conviction for unlawful damage on 23 May 1983. From, and including that offence, until the convictions the subject of this order, the applicant had committed many separate offences. Following the commission of the first two groups of offences the subject of this order, the applicant committed further offences.
Included within the number of offences are some which have a particular relevance to the issue of an indeterminate sentence.
On 8 December 1983 the applicant was convicted of two charges of aggravated assault on females. The facts were that at about 12.30 am on 8 July 1983, at Cloverdale, the applicant approached the complainant who was unknown to him, exposed himself to her and began masturbating his erect penis. When the complainant became alarmed, he grabbed her by the arms preventing her from leaving. She was eventually able to break free and run away.
At 7.15 pm on 19 August 1983, at Cloverdale, the applicant again approached another female who was unknown to him. On this occasion, he exposed himself and began masturbating his erect penis. When the complainant attempted to leave, he grabbed her by the arms and prevented her from doing so. She was eventually able to break free and run away.
On 1 May 1984, the applicant he was convicted of an aggravated assault on a female. The facts were that at 5.45 pm on 31 December 1983 the female complainant was walking in William Street, Perth. She was unknown to the applicant. He approached her and grabbed her on the left breast and then continued to walk down the street.
On 22 November 1988 the applicant was convicted of being on curtilage without lawful excuse, that offence occurring at 9.20 pm on 30 August 1988. The facts were that the female complainant observed the applicant peering through the front window of her flat located at Lockridge.
On 2 December 1988, the applicant was convicted in the District Court on indictment of one count of assault occasioning bodily harm. The facts were that at 11.30 pm on 28 November 1987 the complainant ceased her duties as a bar attendant at the Commercial Hotel in Northam, she went upstairs to her room and when she was near the room, the applicant grabbed her by the throat with both hands. At the time his trousers were open. When she screamed he dragged her into a nearby store‑room where he pushed her to the floor and attempted to remove her pantyhose. He warned her not to struggle. However, she began to scream and struggle further. The applicant then slapped and punched her about the face and told her that he wanted to go to her room. She feigned willingness and indicated her room was down the hall. When she was released she was able to open the store‑room door and made an attempt to run away. The applicant, however, grabbed her and pushed her to the floor. He then dragged her to her room. When the police attended he was standing over the complainant in the doorway to her room.
For this assault the applicant was sentenced to a term of 18 months imprisonment with parole eligibility. When imposing sentence the Judge commented:
"I take into account that you have been in no trouble since this incident nor have you had any sort of treatment and the reality is that when you are drunk this is very likely to happen again … it does appear to me that you need help and it seems clear from the papers that I now have and I can only express on the transcript the hope that you will seek out that help and have that help while you are in prison."
On 19 December 1988 in the Court of Petty Sessions at Northam, the applicant was convicted of wilful exposure, the offence having occurred on 28 November 1987 as a precursor to the assault for which the applicant was sentenced in District Court. The facts were that the applicant went to the Northam public swimming pool and stood outside the perimeter fence. When the applicant got the female complainant's attention, he unzipped his trouser fly and exposed his penis, making obscene gestures with his hands.
Offences subsequent to the first two groups of offences
On 13 August 1993, in the Court of Petty Sessions at Northam, the applicant was convicted of one charge of being unlawfully on premises. The facts were that at 2.50 am on 7 August 1993 just four weeks after the group of offences committed upon the second complainant, the applicant was observed by police walking alone in Duke Street, Northam. When seen, he ran and hid behind a bush in the front yard of a nearby house.
On 5 June 1997, the applicant was convicted on indictment in the District Court of one count of indecent assault. The facts were that at about 8.50 pm on Tuesday 30 January 1996, the applicant was in the upper level car park at the Princess Margaret Hospital for Children in Subiaco. The complainant, who was a nurse at the hospital, had just parked her car in the undercover section of the car park and was walking up the car park stairs. As she neared the top of the stairs the applicant was descending on her left. As he drew level with her he reached over and grabbed her left breast in one hand and squeezed it hard, causing her pain. The sentencing Judge imposed an 18 month intensive supervision order with a special direction that the applicant attend appropriate treatment or counselling for his deviant sexual behaviour.
On 19 February 1998, the applicant was convicted on indictment in the District Court of one count of threat to kill. The facts were that at about 8 pm on 1 December 1995, the applicant was in the main street of Northam after attending a funeral of a relative. Members of the applicant's branch of the family were requested not to attend the funeral. The applicant approached the complainant and removed a meat cleaver from his back pocket, held it underneath the chin of the complainant so that the blade of the meat cleaver came into contact with his skin. He threatened to cut the complainant's throat and chop his head off. The applicant was in an extremely aggressive frame of mind. The complainant did not react and eventually the applicant removed the blade from the complainant's neck, brought it down on the roof of a parked car that was immediately behind the right shoulder of the complainant and was then disarmed. The applicant was sentenced to a term of 18 months imprisonment with eligibility for parole.
On 1 May 1998, the applicant admitted breaching the intensive supervision order by failing to attend the Sex Offender Treatment Program. A term of 18 months imprisonment with a parole eligibility order was imposed.
The pre‑sentence report
A comprehensive pre‑sentence report was prepared by a Community Corrections officer on 20 July 2000. The author noted:
"In regards to the 18 offences for which Mr Yarran was found guilty of by the jury's verdict, Mr Yarran continues to plead his innocence and advised he would be seeking to appeal the decision. As such, Mr Yarran's discussion of that event centred on how he had perceived wrongful conviction."
I interpose to note that the subsequent appeal was dismissed: Yarran v The Queen [2001] WASCA 52, and an application for special leave to appeal to the High Court was refused by that Court on 31 May 2002.
The author of the Pre-Sentence Report noted that the applicant acknowledged his guilt in relation to the other charges but was not able to discuss details of the offences, instead suggesting that he could not recollect any details as a result of his poor memory. He justified that he "… became 'a rapist' because he was continually told he was one." The author noted:
"Mr Yarran seemed to indicate remorse for his offending in regard to the two victims in Northam. However, he continually brought the discussion back to the impact these offences have had on him and his family."
The previous response to supervision was detailed in the report. On 2 May 1984 the applicant was placed on a 12 month probation order for the offence of aggravated assault, the offence involving the grabbing and squeezing the breasts of a female who was unknown to him. He completed that order successfully. In respect of the sentence of imprisonment for assault occasioning bodily harm of the barmaid in the hotel, parole was deferred on two occasions by the Parole Board due to the applicant's presenting a danger to the community, not having addressed his offending behaviour. In relation to the ISO imposed on 5 June 1997, the order was breached because of non‑compliance. The termination report written by a facilitator in the Sex Offender Treatment Program stated that:
"Mr Yarran clearly demonstrated his reluctance to engage in the treatment program in the few occasions that he attended."
This comment was explained by the applicant's counsel to the trial Judge:
"… Firstly, in relation to his participation and failing to attend at groups, your Honour may be aware of course that he lives in Northam and lived in Northam during most of that period of time and as your Honour is aware from his occasional lateness in coming to court he has had considerable difficulties and continues to have considerable difficulties in getting to places at the right time and at the appointed time. The treatment program was in Perth and he was obliged to travel from Northam to Perth in order to undertake the treatment program. I don't think one can say that it is out of any desire by Mr Yarran not to attend the treatment program that he failed on occasions to attend. I am sure that it arose out of his inability to organise his life in such a way as to get into a position where he could attend that program.
In relation to the 1998 situation I am instructed that it is somewhat different than what is contained in the report in this sense, that he was imprisoned I think in February of 1998 and he would have been due and able to go on the program towards the end of 1998. He had to go on a waiting list. There was then the riot at the end of 1998 and he was not released until May of 1999. My instructions are that all of the programs then ceased in the prison during that period of time, at least at the prison where he was, Casuarina, and it wasn't out of any desire not to attend the program and eventually his term came to an end and he was released without having undertaken the program."
It was further indicated in the pre‑sentence report that Mr Yarran was considered to be an extremely high risk of re‑offending in a sexual manner due to the opinion that:
"… he displayed no empathy, remorse, guilt or shame for the impact his behaviour had on the victims."
The author summarised his conclusions:
"… Mr Yarran portrays himself as a victim of past abuse and that continued harassment by feuding families was a factor behind his eventual offences."
Report from the Sex Offender Treatment Unit
This report was prepared by a Clinical Psychologist. No discussion of the applicant's actual offending behaviour was achieved during a clinical interview because the applicant reported he had memory problems due to a head injury sustained in a family feuding incident. The report noted particular concerns including the fact that the applicant was able to sexually assault two victims while their children were in the house:
"The last victim had a small baby in the room where she was assaulted and the offences on the occasion were interrupted by her children's crying. This did not stop him continuing to offend against her, which suggests that he was able to completely dissociate from the victim and her children from the beginning to the end of offending."
Psychometric testing suggested that the applicant disclosed the expected range of sexual obsessions and that he is highly motivated for treatment.
"Conversely, results suggest that he is presenting himself in an asexual manner, he was somewhat dishonest about his interest in sexual deviance; he is currently justifying this deviance; he is exhibiting some distortions to his thinking and that he requires specific information about sexuality. His test results are not unusual for an offender who has not received treatment to address sexual deviancy."
Importantly, the psychologist noted:
"During the interview Mr Yarran expressed a great desire to undertake treatment In his letter to me he wrote at the end 'All I ask for now is help me please give me help counselling courses (sic). Any kind I will do to help me. My wife and children stand by me with sad sorrow. My mother supports my not being this person I proved to all what caused it now let me put it behind me forever. Please do not single me out as this kind of person'."
The author noted that as well as demonstrating the offender's request for treatment, her opinion was that it also clearly reflected one of the primary issues to be addressed in treatment. During the interview, the applicant frequently took the stance of the victim. She concluded:
"Mr Yarran's treatment needs are great and he is considered to be suitable for treatment, despite his previous ambivalence, his partial denial of current offences and reluctance to discuss offending during the current interview process. He is likely to require ongoing individual therapeutic intervention in addition to inclusion in group treatment, to address issues of early abuse and poor psychological functioning."
The conclusion reached was:
"This man is considered to be at high risk of re‑offence without treatment and is considered to be suitable for such psychological intervention. He may need further individually based counselling to address his issues of childhood sexual abuse in addition to inclusion in the sex offender treatment programme. It is my opinion that Mr Yarran should participate in treatment before being released to the community."
This report, helpful though it is, did not specifically address the important question of the prospect of re‑offending at the time of release from the notional sentence.
Forensic psychiatric assessment
A forensic report of 22 July 2000 was provided by Dr Ananth Pullela, Senior Consultant Forensic Psychiatrist for the Ministry of Justice and Health Department, a psychiatrist with well over 20 years of experience in psychiatry including "a Fellowship thesis on Clinical prediction of dangerousness in forensic psychiatric populations". His opinion is as follows (complete with Dr Pullela's own emphasis):
"From a psychiatric point of view, there is no evidence of any treatable psychopathology nor any functional psychiatric disorder. From a personality point of view Mr Yarran has a significant anti-social personality with long criminal record with probable alcohol dependence over the years. He clearly lacks insight into his past offending behaviour and shows no remorse, guilt or shame. He has denial and tends to rationalise his offending behaviour. He attributes sexual abuse as one of the possible contributing factors for his recidivism! Mr Yarran is currently charged with serious offences of sexual nature with threat to kill and deprivation of liberty. His acts of offending behaviour involved aggression and violence by way of intimidation and force. He seems to totally lack understanding of the psychological impact of his actions on victims involved.
It is my professional opinion that Mr Yarran is likely to reoffend in future. His risk of reoffending could be categorised as 'high' and clearly poses a risk to the community. I would like to respectfully recommend to the court that this man requires to be in a custodial setting and must address issues of his offending behaviour such as Anger Management, Sex Offender Treatment Program and Alcohol and Drug Assessment/Rehabilitation Program. I would strongly recommend an appraisal and an assessment for his suitability and participation in the prison based Sex Offender Treatment Program along and VOTP (Violent Offender Treatment Program). I would not recommend his release into the community, as his chances of reoffending in a similar fashion are likely to be high. I would strongly recommend a reappraisal and a reassessment from a psychiatric point of view as regard to prediction of dangerousness/sex offending after he successfully completes the various therapeutic programs as recommended above. I would like to respectfully suggest to the court to obtain a pre‑sentence SOTP (Sex Offender Treatment Program) Assessment."
This opinion was amplified before the Judge by defence counsel who had a lengthy discussion with Dr Pullela and told the Judge:
"… Mr Pullela advised me that I could tell your Honour that in his view - his view was that if Yarran successfully completed the sex offenders treatment program and if, as is clear from the other reports, he was seen as a fit person to undertake the sex offenders treatment program, then there was a very high likelihood that he would not reoffend in this way again. Mr Pullela said those that complete the sex offenders treatment program successfully - there is a high rate of success. He was of the view that if Yarran could complete that program within the gaol system and complete it successfully obviously, that would be an indicator that he would not reoffend in the way that he has in the past."
The evidence before the Judge was comprehensive and met the requirements of the principles I have set out. Although the evidence was not presented orally, in the particular circumstances this was no disadvantage. Clearly defence counsel had been able to discuss aspects of the reports with the relevant report writers and without objection amplified or clarified matters which were relevant.
The trial Judge's reasons for making an indeterminate imprisonment order
The Judge noted that there may be a substantial degree of commonality between the facts which were relevant to the discretionary considerations which arise under the provisions of the Sentencing Act s 89 and the facts relevant to the discretionary provision considerations which arise under the Sentencing Act s 98.
The Judge summarised submissions made by defence counsel before concluding:
"Not only has the accused been convicted of two serious offences, one of them sexual in nature since these current offences were committed, but in my view the reports of Dr Pullela and that of the sex offender treatment unit officers in respect of his past and present needs are quite pessimistic of both his understanding of and his desire to resolve the problems which he has and which make him a risk to the community.
In my view there are no factors suggestive of the appropriateness of parole. He is not young, his offending is extremely serious and entrenched and his wish and capacity for change is, it seems to me, very limited, notwithstanding his recent expressions of desire so to do. I am well aware of the length of the finite sentences I have today imposed and of the principle that indefinite imprisonment is to be reserved for the most exceptional cases. I turn to that."
The Judge then considered separately, the criteria under s 98, concluding the conditions under the Sentencing Act s 98(2) were met, given the exceptional seriousness of the offences and the risk that the applicant would commit other indictable offences. The Judge found that "each of (a), (b), (c)(i) and (c)(ii) of s 98 are separately clearly satisfied". He continued:
"… I can see nothing pointing positively either towards parole eligibility or away from a term of indefinite imprisonment in light of the seriousness of the offences, the time over which they occurred, the whole history on the one hand of the accused's escalating sexual offending, his age, his intractability, his ongoing high risk of very serious sexual and violent offending and accordingly I refuse him eligibility for parole and I order that he serve an indefinite imprisonment sentence under section 98 at the completion of the sentences of a finite nature which I have today imposed."
The contentions of the applicant
The applicants contentions in summary are as follows:
•The offences were serious. They were not exceptional of their type. They were not especially peculiar.
•It was not an inappropriate case to consider the making of an order for indefinite imprisonment.
•The learned Judge did not condescend to particulars as to the matters which he found satisfied the relevant criteria to make such an order as he did.
•The learned Judge referred to the reports and then stated conclusions without referring to those aspects of the report to support his conclusions.
•There were indications that the applicant was remorseful by his plea as to the first two sets of charges.
•The applicant was a family man in the sense that he has a wife and children and is devoted to them and they to him.
•Without hope being extended to the applicant there is little or no incentive to seek treatment as the applicant has no way of telling whether he will ever be released.
•The applicant accepts punishment and is willing to undergo treatment. In terms of having him accept the gravity of the conduct (if that was doubted) and preparing himself for re‑entry into society it seems logical that if he has a certain timeframe, that is more conducive to his rehabilitation.
•His recent pattern of behaviour suggests that he is able to not offend in the way reflected by the relevant charges.
Application of the principles to the Judge's decision
In my opinion the applicant has failed to make good any of these submissions. The Judge appears to have made his decision in general accord with the principles I have previously set out. His sentencing remarks demonstrate his understanding of the exceptional nature of the power to impose indeterminate imprisonment. The prosecution "clearly" established its burden. He took account of the possibility of therapeutic intervention in the Sex Offender Treatment Program prior to release and also the applicant's expressed desire to change. Counsel points to the pleas of guilty as indications of remorse. Any such indication is very slight. The applicant remained undetected until advances in DNA profiling enabled him to be apprehended and also provided an overwhelming prosecution case. He pleaded not guilty to the counts relating to the third complainant. In those latter counts there was no DNA evidence and the Crown case was less strong. It is of course his right to so plead. However, it is relevant in considering the submission on the question of remorse. Set against other material, the remorse shown does not indicate error by the trial Judge in making an order for indefinite imprisonment.
It is true that there was an expression of willingness to have treatment. Set against that is his performance in the past. Notwithstanding the explanation advanced by counsel as to his lack of attendance at treatment, it was open for the Judge to reach the view he expressed, "… that Dr Pullela's report and the Sex Offender Treatment officer's report are nevertheless quite pessimistic about his understanding of, and his desire to resolve, the problems which he has".
Counsel conceded that an indefinite sentence was capable of coming to an end and indeed such a possibility is provided by the Sentence Administration Act s 14. This itself provides incentive to the applicant to seek treatment and so convince the authorities that he should be released on parole.
The applicant's offending in respect of these groups of offences occurred in 1993 and 1994. He re‑offended in a significant way in the six years between the commission of the last offence and his trial and the convictions for assault occasioning bodily harm and threats to kill. It was open for the Judge to conclude that the past offending did provide an accurate predictor of future offending. Furthermore, the Judge was entitled to look at the behaviour exhibited by the applicant in each of the three groups of offences in reaching his conclusion. That behaviour, repeated three times, itself indicates a high level of danger to society from the applicant. Of course, there are other factors. The time to be spent in custody on the fixed term, the possibility of a positive result from treatment and the lack of directly similar offending since 1994. These are matters of judgment, perhaps difficult matters, entrusted to the Judge. I am not persuaded the judgment he made was flawed.
In my opinion, the applicant has failed to establish that the Judge erred in making an order for indeterminate imprisonment. I have set out extensively the material which was available to the Judge to demonstrate that not only was the Judge's decision open upon all the evidence but, in my respectful opinion, was compelled by the evidence.
I grant leave to appeal but dismiss the appeal.
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