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[1996] QCA 404
Court of Appeal (Qld)
1996-10-18
Before Macrossan CJ, Pincus JA, Shepherdson J
Original judgment source is linked above.
The applicant there had a serious criminal record including offences of violence, theft and rape; his last conviction was for the rape of a 55 year old invalid crippled woman during which a knife was used and resulted in a 15 year sentence in 1971. He was released from gaol in 1982 and committed no offence until the attempted murder at the end of 1988. There was psychiatric evidence showing that the applicant had been diagnosed as an "aggressive psychopath based on brain damage". The psychiatric evidence showed the psychiatrist considered the applicant to be a person with a psychopathic personality disorder but that psychiatric illness was absent. The psychiatrist's report included the following:-
"It is obvious that he is continuing to behave in the same antisocial manner as he did when he was younger. On this occasion he went further and attempted to kill the victim. There is a lack of genuine remorse for his actions which is in keeping with the reaction of a psychopathic personality. It is typical of this disorder. He had considerable potential for violent behaviour both with respect to sexual and aggressive impulses ... His behaviour on this occasion and in the past has been such that I can only conclude that he is a dangerous man. If past behaviour is the best guide to future behaviour and when we are dealing with behaviour of this type I believe it is then he is a high risk for continuing to reoffend in the same manner in the foreseeable future. The is no psychiatric treatment that is likely to change this man for the better it is a case where society has to be protected from him."
I do not suggest that the respondent is a person for whom a sentence of life imprisonment should be seriously considered and I say that in the light of the opinion expressed by Dr Alroe as to maturation being likely to occur within 10 years. Nevertheless, there are degrees of similarity between the behaviour of Day and the behaviour of the respondent; the evidence in each case shows that both are impulsive, both have a psychopathic personality, both are dangerous, both have considerable potential for violent behaviour and there is a high risk of reoffending. In Day's case no psychiatric treatment was available but in the present respondent's case the passage of time may well, in Dr Alroe's opinion, bring an improvement in behaviour. Whether that forecast will prove accurate only time will tell. Day's prior criminal history, at least from the point of view of violence is worse than the respondents. Day was 37 years old when sentenced. I have referred to the decision in Day because in my view it is helpful to consider the case in conjunction with R v. Chivers (1993) 1 QdR 432 - judgments in both these cases were delivered on the same day. In the result, one is left with the option of a finite sentence only for this respondent. There are as I have said the differing opinions of Dr Alroe and Mr Acutt, the latter suggesting an indefinite period of time which might be shortened for the reasons stated in the above quoted extracts from his report. If the appeal is dismissed, the respondent is eligible to apply for parole after serving half of the 8 year term. If he does not receive any parole but serves the full term, he will be released into the community before the 10 year period referred to by Dr Alroe has expired. On Dr Alroe's view he will still then be a very dangerous recidivist offender. In my view, the sentence for count 3 should be such that it reflects the need to protect society. The sentence should be structured so that the respondent's eligibility for parole is not impaired and at the same time permit the parole granting body opportunity to consider that application and take account of Dr Alroe's opinion if it wishes to do so. It will no doubt have more up to date opinions.
I have concluded that sentences should be imposed which reflect this Court giving great weight to the need to protect society at least for 10 years and also take into account the respondent's criminal history. I would allow the appeal by the Attorney-General and set aside the sentence of 8 years imprisonment on each of count 3 and counts 7 and 8.
I would in lieu sentence the respondent on count 3 to imprisonment for 12 years and on each of counts 7 and 8 to imprisonment for 10 years and declare that all periods of imprisonment began on 2 April 1995.
Pincus JA has set out the matters which are relevant for consideration on the Attorney-General's appeal. Putting to one side the question of the application of principles discussed in Veen [No. 2] [1988] HCA 14; (1988) 164 C.L.R. 465 and doing this with a view to making some brief observations of my own upon this aspect, I am able to express my agreement with the approach adopted and the conclusion reached by Pincus JA.
Notwithstanding the invitation extended by Counsel on behalf of the Attorney-General to increase the sentence of eight years to some twelve years, I think that the interference of this Court would not be justified. This is so after fully allowing for the very serious anti-social motivation of Jackway and his apparent inability or unwillingness to control his criminal instincts. The eight year sentence was very understandably unaccompanied by any recommendation for consideration for parole. Jackway's youth and his plea of guilty are part of the relevant circumstances more fully outlined by Pincus JA and under the approach followed by this Court on appeals by the Attorney-General (see R v.Melano; ex parte Attorney-General [1994] QCA 523; [1995] 2 Qd.R. 186) we should not interfere. The eight year term imposed is within the available range.
Jackway, the respondent to the Attorney-General's appeal, also himself appealed against the sentence of eight years which was imposed upon him. The principal matter of complaint was that he had spent 259 days in pre-sentence custody and the order made by the sentencing judge did not deal with that aspect or follow the procedure required by s.161 of the Penalties and Sentences Act 1992 as explained in R v. Wishart and Jenkins [1993] QCA 379; [1994] 2 Qd.R. 321. In the course of argument in this Court it came to be accepted by counsel for both parties that the sentencing judge had not "otherwise" ordered within the meaning of subs. (1) and had not followed the requirements of subs. (3). Notwithstanding this omission, it was accepted that the result was that the undisputed period of presentence custody had to be "taken to be imprisonment already served under the sentence" under subs. (1), so that the eight year term which was announced commenced, for the purposes of calculation, 259 days before the date on which the order was made. Once this point was accepted by counsel for the Crown, counsel for Jackway advanced no further substantial arguments against the sentence imposed. Recording then that the effect of the order below was as indicated, and notwithstanding the formal deficiency in its terms, it is appropriate to refuse Jackway's application for leave to appeal against sentence.
Care must be taken to ensure that when considering the aspect of the respondent's danger to society, any sentence imposed must not be more severe than would have been imposed if the respondent had not been suffering from being a biological psychopath or the condition described by Mr Acutt. On count 3, which in my view was the most serious of the offences, the maximum sentence to which the respondent was exposed was life imprisonment. There can be no tariff for cases where life imprisonment is the maximum penalty imposed. Such cases can have "too big a range of seriousness" for a tariff. (cf. Pight v. The Queen [1995] SASC 5046; (1995) 64 SASR 215 at p.218).
(1988) 164 CLR 465
(1995) 64 SASR 215
(1993) 1 QdR 432