Court of Appeal (WA)|2000-03-21|Before: Anderson J, Burt J, Pidgeon J, Wallwork J

Garlett v The Queen [2000] WASCA 72 (21 March 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GARLETT -v- THE QUEEN [2000] WASCA 72

Criminal law and procedure - Sexual offences - Sentencing - Appeal - Multiple offences - Multiple complainants

Parole eligibility - Principles - Nature and purpose of parole - Protection of community - Capacity to benefit from parole

Indefinite sentence - Principles - Exceptional circumstances - Serial rapist - Mental illness - Relevance of antecedent criminal history

Appeal against refusal to make parole eligibility order dismissed

Leave to appeal against order for indefinite detention granted

Australian Coal & Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Brown v The Queen, unreported; CCA SCt of WA; Library No 960445; 6 August 1996

Colbung v The Queen [1999] WASCA 138

Jones v The Queen, unreported; CCA SCt of WA; Library No 980246; 8 May 1998

Klavins v The Queen [1999] WASCA 37

R v Dunstan, unreported; CCA SCt of WA; Library No 990074; 19 February 1999

Rogers & Murray (1989) 44 A Crim R 301

Stewart v The Queen [1999] WASCA 7

Thompson v The Queen, unreported; CCA SCt of WA; Library No 980600; 19 October 1998

Weng Keong Chan (1989) 38 A Crim R 337

1 PIDGEON J: I agree with the reasons to be published by Anderson J.

2 I would add the following reasons on the extent to which a sentencing Judge may look to past conduct for the purpose of determining whether the offender will be a danger to society at a future time. Section 98(2) of the Sentencing Act provides that 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, he or she would be a danger to society because of one or more of the factors which are specified in the section. The sentencing Judge is required to determine a future possibility. Courts when assessing damages for personal injury have referred to the different process which must be used when the court is asked to determine whether a past fact in issue has been proved to exist and when the court is required to determine a possibility which might occur in the future. Burt J, as he then was, said in Plenty v Argus [1975] WAR 155:

"What would have been the position had the chance been taken is not a past fact and hence cannot be proved in the same way as a past fact can be proved 'all that you can do is to evaluate the chance': Davies v Taylor [1972] 3 WLR 801 at 804; [1972] 3 All ER 836 at 838 per Lord Reid."

3 The High Court made similar observations in the context of assessing damages in Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

4 A court under s 98(2) is required to determine whether a future possibility is more probable than not. The future chance being assessed is whether the offender at the time he or she is released from custody would be a danger to society or a part of it by reason of one or more of the specified factors.

5 If one is required to make a determination whether such a person 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. This process is specifically authorised by the section as the factor which it states must be taken into account is the exceptional seriousness of the offence for which the offender is being sentenced and the number and seriousness of other offences of which the offender has been convicted. In the present case the Chief Judge (His Honour Judge Hammond) handed to the offender written reasons as to why he reached his conclusions His Honour summarised these reasons when addressing the offender. His Honour made extensive references both to the past behaviour and to the reports which were before him. He said when considering the question of parole: (AB411)

6 His Honour, when considering the question of indefinite imprisonment, said that he made the finding that upon his release from custody the offender would be a danger to society or a part of it, namely female members of society, because of the exceptional seriousness of the offences committed and particularly their nature, particularly their common characteristics with respect to the sexual offending. His Honour then said on the principle that the experience of the past may dictate what is likely to happen in the future, "There is, I believe, at this point a strong risk that the offender will commit other indictable offences at the time he would be expected to be released from prison." What has occurred in the past is no more than one factor to take into account and it is clear that his Honour was treating it as no more than one of the factors by reason of his saying "may". The past offending, because of its very nature, was seen to be of significance by his Honour and the very nature of the offending would make this understandable. His Honour made extensive reference to the psychiatric reports before him, and having done this reached the view that the offender would be a danger. I do not consider it has been shown that his Honour was in any way in error, or that his discretion miscarried.

7 WALLWORK J: On 5 August 1999 in the District Court, the applicant was sentenced to an aggregate effective sentence of 18 years' imprisonment for 34 offences which had been committed between 27 June 1994 and on or about 24 January 1998. Additionally he was ordered to be imprisoned indefinitely pursuant to s 98 of the Sentencing Act 1995 (WA). He applies for leave to appeal against sentence primarily on two grounds. The first is that he was not made eligible for parole when he says he should have been. The second is that he says that he wrongly received the indefinite sentence.

8 In his sentencing remarks the learned Judge summarised the applicant's offences as being 10 counts of sexual penetration whilst armed; eight counts of burglary; two counts of indecent assault whilst armed; four counts of unlawful detention; two counts of stealing with violence; one count of stealing a motor vehicle; two counts of aggravated burglary whilst armed; two counts of attempted sexual penetration whilst armed; one count of stealing with bodily harm; one count of stealing; and one count of assault occasioning bodily harm.

9 The effective total term of 18 years imprisonment was achieved by making two 9 year sentences of imprisonment for sexual penetration without consent whilst armed, cumulative upon one another. His Honour ordered that all the other sentences be served concurrently with those two cumulative 9 year sentences. His Honour said that in reaching the total term of 18 years, he had allowed credit to the applicant for his pleas of guilty.

10 The learned Judge said that it was difficult to overstate the seriousness of the sexual attacks. All of the violent sexual offences had contained elements of the infliction of terror, violence and brutality. The victim impact statements from a number of the victims were entirely credible and clearly showed severe and on-going affects of the degrading and violent sexual attacks committed upon those persons.

11 At the time he was sentenced, the applicant was nearly 35 years of age. He is of Aboriginal descent. He was described by one psychologist as intelligent and well educated with a capacity to express himself. He had quite sophisticated language skills and comprehension.

12 The sexual offences, which were the most serious of the offences, involved home invasions and sexual assaults on women. Those offences included vaginal penile penetration, anal penetration, indecent assaults and unlawful detention. There were also offences of stealing with violence and burglary.

13 His Honour properly described some of the conduct as being horrendous and carried out with evidence of sadism and a hatred of women. He came to the conclusion that:

"I am in no way able to reach a conclusion at this time that there are any circumstances that would be favourably relevant to the offender at the time when he would be eligible for release on parole if an eligibility order [for parole] were made. One of the best predictors of the future must always be the conduct and actions of the past and the conduct and actions of this offender are so horrendous, carried out over such a period of time with evidence of such sadism and hatred of women, that I cannot reach a conclusion or be in any way persuaded at this time that circumstances relevant to the offender will be different in a decade. I therefore decline to make any order for eligibility and perhaps by way of an aside state that the seriousness and nature of the offences, the circumstances of their commission and the offender's antecedents combined, in my view completely swamp any other factor which might be considered relevant under Section 89(2)(d)."

14 At the hearing of this application, it was said by counsel for the applicant that there was no complaint about the head sentence of 18 years, or his Honour's assessment of the seriousness and nature of the offences. However, it was submitted that his Honour had not taken sufficient account of the applicant's antecedents and the prognostication for the future. It was submitted that that was required by s 89(2)(c) and s 89(2)(d) of the Sentencing Act 1994 (WA).

"In determining whether it is appropriate to make a parole eligibility order, a court may have regard to all or any of the following:

(b) the circumstances of the commission of the offence;

(d) circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;

(e) any other reason the court decides is relevant."

16 With respect to the offender's antecedents, the complaint, in essence, was that his Honour had referred to only some of the antecedents of the applicant, including his record of previous convictions. Those convictions up to that time did not contain offences of a sexual nature, although there were some offences of violence from 1995.

"I therefore decline to make any order for eligibility and perhaps by way of an aside state that the seriousness and nature of the offences, the circumstances of their commission and the offender's antecedents combined, in my view completely swamp any other factor which might be considered relevant under s 89(2)(d)."

18 Counsel complained that the learned Judge had not referred to the fact that the applicant had worked for three years and had set about obtaining a qualification. One of the doctors had said that, taking into account the applicant's background and social problems, he was the only Aboriginal man coming from that background who had achieved what he had achieved. It was submitted that these were important achievements. It was said that his Honour had taken the view that he could not give the applicant any benefit in relation to those issues. The learned Judge not "gone through that exercise".

19 It appears from the pre-sentence report that the applicant was the third oldest of seven children. His father had died when he was 9 years old. His mother had had an alcohol problem. Because of those circumstances, the applicant had been made a ward of the State. He had spent the majority of his childhood in children's homes or with foster families.

20 The pre-sentence report stated that the applicant had a fairly good record of employment. He had passed the Public Service entrance examination and had obtained clerical employment at the Department of Social Security. He had also been employed as a builder's labourer and in various casual labouring positions. He had obtained employment as a night filler at Coles. He had been appointed an acting caretaker of a hostel. He had also been employed in the metropolitan area in administrative and general duties.

21 A psychologist had advised that the applicant had been raised in Northam on the Aboriginal reserve. During that time he had been exposed to considerable violence and emotional turmoil amongst adult members of the community. He had been in seven foster homes as a child. He had been admitted to Graylands Hospital and had been treated for a depressive disorder.

22 The psychologist thought that the applicant would benefit from intensive therapy to help him understand and resolve the issues which had contributed to his multiple offending. This process would necessarily involve addressing the long term effects of chronic childhood trauma, primarily the results of his experience of repeated abandonment and loss, through rejection or death, of a number of parental figures and of this repeated experience with intimate relationships through adolescence and adulthood.

23 The psychologist said there was no overt evidence to suggest an enduring presence of anger towards women, apart from the nature of his offending. However the applicant's reaction to a history of persistent loss or rejection by women was very likely a significant issue to be pursued in treatment.

24 It was said that the applicant had demonstrated a strong interest in participating in the Sex Offender Treatment Program as facilitated by the Ministry of Justice. He had sought extensive information about this and other programs available to him in prison. He had been assessed as suitable for participation and treatment. However, given the possible presence of a major depressive disorder with psychotic features, and an inevitably lengthy period of incarceration "before entering into treatment could eventuate", the applicant's continued suitability for treatment should be monitored.

25 It was said by the psychologist that without the benefit of any formal therapeutic intervention, the applicant was assessed as representing a high risk of re-offending. However, his very responsible attitude towards his offending behaviour, reflected not only by his admission of culpability in that regard, but also by his significant insight into the effect his behaviour would have had upon his victims, and his strong interest in participating in treatment, suggested that this risk could be significantly reduced through intensive therapeutic intervention.

"Without intensive therapeutic intervention Mr Garlett is assessed as presenting a high risk of re-offence. He has indicated a strong interest in participating in the Sex Offender and Alternatives to Violence Treatment programs while imprisoned. He is currently assessed as suitable for inclusion in these programs, however a stable mental state is necessary to ensure these interventions are effective. There is some evidence to suggest Mr Garlett suffers from a major depressive disorder with psychotic features, however it is likely that this condition is currently in remission. Formal psychiatric assessment is more likely to provide a clearer diagnostic determination in this regard. There is no evidence to suggest the presence of alcohol or illicit drugs to have had a disinhibitory effect upon Mr Garlett's decision to offend. Should Mr Garlett engage effectively in these interventions, his risk to the community is likely to be considerably reduced. Following sentencing he will again be interviewed by staff from the Sex Offender Treatment Unit to ascertain whether his interest in and suitability for inclusion in this program has been maintained. There is no indication currently to suggest that Mr Garlett will experience a reversal in his attitude toward treatment."

27 With respect to s 89(2)(d) of the Act which refers to circumstances which might be relevant at the time when the applicant would be eligible for release on parole, if such an order were made as stated, his Honour said:

"I am in no way able to reach a conclusion at this time that there are any circumstances that would be favourably relevant to the offender at the time when he would be eligible for release on parole if an eligibility order were made. One of the best predictors of the future must always be the conduct and actions of the past and the conduct and actions of this offender are so horrendous, carried out over such a period of time with evidence of such sadism and hatred of women, that I cannot reach a conclusion or be in any way persuaded at this time that circumstances relevant to the offender will be different in a decade. I therefore decline to make any order for eligibility and perhaps by way of an aside state that the seriousness and nature of the offences, the circumstances of their commission and the offender's antecedents combined in my view completely swamp any other factor which might be considered relevant under s 89(2)(d)."

28 It was submitted that those remarks had to be wrong because there were a large number of circumstances which his Honour had not considered and which he was obliged to consider in accord with the authorities.

29 In Thompson v The Queen (1993) 8 WAR 387 at 396, the court said that the matters raised by the equivalent subsection to s 89(2)(d) (set out above) required the sentencing Judge to prognosticate circumstances which might be relevant to the offender at the time when he or she would be eligible for release, thus recognising a relationship between punishment of the offender on the one hand and the need to consider factors leading to the offender's rehabilitation on the other - Archibald v R (1989) 40 A Crim R 228 at 233-234 per Wallace J.

30 It was also said that the purpose of the prognosis required by that subsection was to enable some preliminary consideration of the question whether in terms of rehabilitation of the offender he or she was likely to benefit from serving the relevant portion of the sentence under supervision in the community: Archibald (supra) per Malcolm CJ at 230. In Thompson, the court at 397 referred to matters which "point positively to the appropriateness of parole" and which showed "a glimmer of hope."

"A great deal of work remains to be done before it could be asserted confidently that the applicant has left his criminal past behind. One real advantage of parole will be to permit the authorities to monitor the applicant's progress when he is first released back into the community and to ensure that he continues programs which are relevant to his circumstances."

32 In that case the court came to the view that the prospects of rehabilitation justified the making of an order for eligibility for parole and that the learned sentencing Judge's decision not to do so was in error.

33 It was submitted for the applicant that as in the case of Thompson, in this case there were those pointers and an order for parole eligibility might provide the necessary incentive.

34 Counsel emphasised that the applicant had been brought up in bad conditions. He had been sent to six foster homes and had ended up at Sister Kate's. His elder brothers had been incarcerated. Alcohol had been prevalent. It was said that all of those factors had been outside the applicant's control. It was submitted that the learned sentencing Judge had not considered all of those factors. It was submitted that they should have been examined carefully to determine whether or not there was "a glimmer of hope". It was submitted that because the offences were horrendous, that did not displace the duty under s 89 to consider relevant matters. It was not sufficient to say "if we look at the past this is going to happen again." That was not a proper exercise of discretion.

35 It was further emphasised that the applicant had had no previous offences similar to the relevant offences involving sexual penetrations. That what the psychological reports had indicated was that at the time he committed the offences the applicant had been extremely distressed and paranoid. He had organised with the police to have himself admitted to Graylands. He had also on another occasion gone to the hospital seeking help but he had not been admitted on that occasion and so he had left.

36 It appears from the report of Dr Watts dated 14 May 1999 that in May 1994 the applicant was admitted to Graylands suffering "paranoid thought disorder, auditory hallucinations, agitation, aggressive behaviour." He had appeared to be "disorganised, with flattened effect, paranoid and hallucinatory features and evidence of thought disorder." The diagnosis on that occasion had been drug induced psychosis. It appears that it was about that time that the relevant offending commenced. Mr Garlett told Dr Watts that he had continued the offending on an opportunistic basis, often in a state of anger after fighting with a girlfriend. That had occurred until he had met his current partner.

37 After administering tests, Dr Watts was of the opinion that the applicant's overall psychological structure was quite tentative. There was evidence that he would decompensate (go to pieces) at times when he lacked support. Dr Watts was of the opinion that there was a psychotic underlay which surfaced at times of lack of support.

38 Dr Watts thought that the most significant features were the generations of lost parenting and the damaging experiences over the applicant's life. The combination of his psychological - psychiatric make-up, the early emotional deprivation, his lack of stable relationships with adult women and bad life experiences, had resulted in him acting out his anger in a sexual fashion. Dr Watts said he would describe the applicant as disturbed but not mad and while having a high risk of re-offending, he had certain redeemable qualities which might be channelled through a treatment program.

39 Dr Achimovich in a report dated 13 July 1999 said that the applicant exhibited many of the features of an individual who has been severely traumatised in childhood. Superficially he presented as an articulate and intelligent man expressing regret for his crimes. He showed no psychotic phenomena. Dr Achimovich thought that the appellant's transient psychotic and paranoid symptoms, as well as self-harming impulses, were the result of the breakdown of ego defences against the fear and anger which had been present since childhood. He had not dealt with the residual psychological trauma from his childhood and was in need of intensive psychological assistance. He had had no psychotherapeutic help to that stage of his life. It was possible that such help, for example, through SARC, could resolve the impulsivity which the applicant at that time could not understand. Dr Achimovich said that the applicant was willing to undertake a perpetrator's program.

40 Dr Achimovich said that the psychotic phenomena which the applicant exhibited from time to time were of concern and would need careful monitoring in prison. Importantly, Dr Achimovich said that with appropriate psychotherapeutic care, the applicant was capable of maturation and the resolution of his violent impulses. Much would depend on what therapeutic help Mr Garlett might be able to access in prison. Regular psychiatric and psychological assessments, together with monitoring by prison staff, would give the best indications of progress.

41 It is apparent from the learned sentencing Judge's remarks on sentence which were produced in written form prior to the sentencing in court, that the learned Judge had access to all the relevant psychological information and that his Honour fully appreciated the background from which the applicant had come from.

42 In my view it cannot be said that his Honour overlooked any of the relevant criteria in s 89(2) of the Sentencing Act. His Honour made a discretionary decision. In my view it has not been established that he erred in any regard in coming to that decision.

43 The question to be decided on this aspect of the case is not whether a member or members of this Court may have exercised the sentencing discretion differently, but whether the learned sentencing Judge erred in the exercise of his discretion - Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007. In my opinion it has not been demonstrated that there was any error on his Honour's part in declining to order eligibility for parole.

44 The next matter to be considered is the ground of appeal which contends that the learned trial Judge was wrong in making an order that the applicant be detained indefinitely after the finite terms of imprisonment had expired.

45 An order for indefinite imprisonment cannot be made except in accord with s 98(2) of the Sentencing Act which provides as follows:

"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:

(b) the risk that the offender will commit other indictable offences;

(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, and

46 It can be seen that the s 98(2) prevents an order for indefinite imprisonment being made unless the court is satisfied on the balance of probabilities of one or more of the factors set out in the sub section.

47 In this case the learned Judge made a finding that upon his release from custody the applicant would be a danger to society or a part of it, because of the exceptional seriousness of the offences committed, "and particularly their nature, particularly their common characteristics with respect to the sexual offending".

"On the principle that the experience of the past may dictate what is likely to happen in the future there is, I believe, at this point a strong risk that the offender will commit other indictable offences at the time he would expect to be released from prison."

49 In coming to that finding the learned Judge did not discuss in any detail whether the treatment which the applicant hopefully will receive in prison will affect "what is likely to happen in the future".

50 On such an important matter, in my view, the learned Judge should have referred to the contents of the pre-sentence report and the other medical reports relevant to that question.

51 In Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611 at 618, five Justices of the High Court including Mason CJ said:

"The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender: ... In the light of this background of settled fundamental legal principle the power to direct or sentence to detention contained in s 662 should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm. ... The exercise of the power should be reserved for those very exceptional cases which do not attract the operation of s 661 of the Code or for which s 29(1) of the Mental Health Act is unlikely to be appropriate and in which the sentencing Judge is satisfied by acceptable evidence that the convicted person is, by reason of his antecedents, character, age, health or mental condition, the nature of the offence or any special circumstances, so likely to commit further crimes of violence (including sexual offences) that he constitutes a constant danger to the community. The stark and extraordinary nature of punishment by way of indeterminate detention, the term of which is terminable by executive, not by judicial, decision, requires that the sentencing Judge be clearly satisfied by cogent evidence that the convicted person is a constant danger to the community in the sense already explained."

52 Section 98 of the Western Australian Sentencing Act was considered in Thompson v The Queen [1999] HCA 43. At [18], Kirby J observed:

"Where there was any possibility that an order of indefinite imprisonment might be made, it was essential that the procedures observed should be regular and scrupulously thorough and that the materials, including the pre-sentence reports, should be adequate and complete as fairness to the prisoner required."

"As Hayne JA pointed out in Moffatt [1998] 2 VR 229 at 255, it is fundamental that the power to order indefinite imprisonment should be sparingly exercised and then only in clear cases. I would add that it is fundamental that it should only be exercised following the most careful hearing at which all relevant material is before the judge or judges responsible for making such an order."

54 In this case his Honour made the finding that upon his release the applicant would be a danger to society primarily on the basis that the experience of the past "may dictate what is likely to happen in the future" and that there was in his Honour's view "at this point a strong risk that the offender will commit other indictable offences at the time he would expect to be released from prison."

55 In my view there was error in his Honour's reasoning at this point.

56 In Moffatt (1997) 91 A Crim R 557 Hayne JA (as he then was) said at 584:

"Before parting with the matter I would wish to add one further observation. The power to impose an indefinite sentence is one that will fall to be exercised in few (perhaps very few) cases. It is a sentence that goes beyond punishing the offender to the extent that is proportionate to his or her crime ... the fundamental proposition that such powers are to be sparingly exercised, and then only in clear cases, applies to the Victorian provisions as much as it did to the Western Australian."

57 Charles JA in the same decision said on the same page of the report:

"I also agree specifically with the observations made by Hayne JA to the applicability in Victoria of what was said by the High Court in Chester."

58 One of the reasons why the power to impose an indefinite sentence is to be sparingly exercised is that it removes the decision as to how long an offender will spend in prison from the judiciary to the executive. Under our system of law it is generally the judiciary who exercise the power to sentence persons to imprisonment except in exceptional cases.

59 Following the finding which has been discussed above, the learned trial Judge considered the "character of the offender and his condition." His Honour did this against the background of s 98(2)(c) which is set out above. In the course of his reasons on this question, his Honour referred to Dr Watts' opinion that "although the offender is at high risk of re-offending there are factors which offer the possibility of both rehabilitation and change." His Honour came to the conclusion that:

"There is no certainty at this time that there would be any change in the offender's attitude or that he would in any way seek to avail himself of any professional assistance."

He then imposed the order for indefinite imprisonment.

60 In my view because of the way in which his Honour came to his decision on this question and because he apparently did not take into account the matters referred to in Chester, Moffatt and Thompson, there was error in the process. This Court should therefore consider the matter for itself - s 689(3) of the Code.

61 Because of the obvious remorse of the applicant; his intentions to seek the necessary treatment whilst he is serving his term of imprisonment; the contents of the medical reports which have been referred to above; the fact that there were not previous sexual offences recorded against the applicant prior to this series of offences; his medical condition at the time, and the considerations which were referred to in Chester, Moffatt and Thompson I would set aside the order for indefinite imprisonment, but otherwise leave the sentences as they stand. That would mean that the applicant would have to serve the sentence of 18 years imprisonment without eligibility for parole before he could be released from prison. In that time it is to be hoped and expected that he will take advantage of any assistance which might alleviate his condition.

62 ANDERSON J: The applicant was presented in the District Court on an indictment containing 34 counts. These were counts of aggravated sexual penetration, burglary, aggravated indecent assault, kidnapping, robbery, stealing, motor vehicle theft and aggravated attempted sexual penetration. The 34 offences involved 11 different victims. The sexual offences were committed against six different female complainants, aged between 15 and 48 years. The first of the offences was committed on 27 June 1994 and the last on 24 January 1998, so that the offending spanned a period of about three and a half years. All of the offences were committed in the metropolitan area of Perth in the suburbs of Hillarys, Kinross, Swan View, Kingsley, Kalamunda, Carlisle, East Victoria Park and Midvale.

63 The applicant pleaded guilty to each of the counts. The facts stated to the learned sentencing Judge were as follows:

Counts 1 to 5 (Aggravated sexual penetration without consent, aggravated indecent assault, robbery, deprivation of liberty and burglary)

64 In the early hours of 27 June 1994, the complainant, J, who was then aged 18 years, was in her home alone at Hillarys, studying. She heard a noise outside, investigated, checked the security of the house and continued to study for an hour or so before going to bed. She was woken by the sound of her bedroom door being pushed open by the applicant, who was standing in the doorway armed with a knife about 20 centimetres in length. He was wearing black woollen gloves and a black balaclava pulled down over his face with holes cut out for his eyes and mouth. When the complainant screamed, the applicant approached her and told her to shut up and threatened her with the knife. The complainant begged not to be hurt and began to cry. The applicant pulled the bed covers from the complainant, told her that he knew she was alone because he had been watching the house for some time and, after placing the knife on the bed beside her, he then engaged in prolonged sexual intercourse until ejaculation. He then tied the complainant's ankles together tightly and tied her hands behind her back. The applicant then asked the complainant where her purse was and he left, taking the purse with him. It contained about $100. He discarded the purse in the driveway.

65 During the night of 26 December 1994, the applicant got into the complainant's house at Kinross and hid in her bedroom. The complainant, then aged 24, was at home alone, except for her two children. When the complainant went into her bedroom at about 11.15 pm, the applicant placed a hand over her mouth and an arm around her body, whereupon she commenced to struggle and scream. The applicant was wearing long white socks over his hands and his face was covered by white bandages. The complainant managed to break free of the applicant's grip and commenced to crawl towards the front door, whereupon the applicant ran off with her handbag and a small amount of cash.

Counts 7 to 9 (Burglary, aggravated indecent assault and aggravated sexual penetration without consent)

66 During the night of 27 December 1994, the complainant, G, who was then aged 15 years and a virgin was in her bed at her parents' home in Kinross. Both her parents were at work. The house was secured, except that the complainant's bedroom window was slightly open. The applicant entered the house through the bedroom window and the complainant was woken by the sound. The applicant told her to be quiet and placed a black head band over her eyes and a pillow case over her head and placed a pointed object against the left side of her neck. He then commenced to sexually assault the complainant, pulled down her underpants and penetrated her vagina with his penis. The complainant told the applicant that she was a virgin, to which the applicant replied, "I don't fucking care". The complainant begged the applicant not to hurt her sisters and told the applicant that he was hurting her. He told her that he had only come for her and he continued to engage in intercourse until he ejaculated. He then climbed out the bedroom window and left.

Counts 10 to 13 (Burglary, aggravated sexual penetration without consent, deprivation of liberty and robbery)

67 During the evening of 12 February 1995, the complainant, R, was at home alone with her daughter in her house in Swan View. She was unpacking some boxes, which caused her to go outside to a rubbish bin twice, leaving her back sliding door open. On one of these occasions, the applicant entered the house and hid in the bathroom. At about 1.30 am, the complainant locked the back door and prepared to go to bed. When she went into the bathroom, she saw the applicant in the shower recess and screamed and tried to get away. He grabbed her, placing his right hand over her mouth and his left arm around her waist. He was armed with a long screwdriver, the blade of which scratched her nose. He told her to shut up or he would put the screwdriver through her brain. He pushed her into the bedroom and threatened her with the screwdriver until she submitted. He engaged in prolonged sexual intercourse with her to ejaculation and then tied her feet together and tied her hands behind her back with a necktie. Throughout he repeatedly told the complainant that "all women are bastards" and that although he had never hurt anyone "there's always the first". His face was covered and he told her that if she saw his face, she was "dead". He tried to persuade her to give him the numbers of her bank accounts, then stole approximately $200 in cash from a piggybank and left.

68 Some time during the evening of 19 March 1995, or the early hours of the following day, the applicant entered the house of the complainant, B, in Kingsley by removing a flyscreen on a front window. He stole a set of car keys and an electronic game and used the car keys to steal the vehicle from the driveway. The vehicle was later damaged in a traffic accident in Greenmount. Repair costs were approximately $7,000.

Counts 16 to 22 (Burglary, deprivation of liberty, aggravated sexual penetration without consent times five)

69 On 20 March 1995, the complainant, W, then aged 48 years was at home alone in Kalamunda. At about 6 am, she investigated a noise on her front verandah and then returned inside. She heard another noise and again went outside to investigate. When she came back into the house on this occasion, the applicant was in the house. He had placed scarfs belonging to the complainant around his head, so that only his eyes were visible. He had only socks on his feet and was wearing gloves and carrying a large knife, about 20 centimetres in length. He dragged the complainant into the bedroom, grabbed her by the hair and shoulders and tied her hands behind her back. He then took her lower clothing off and penetrated first her vagina on several occasions and her anus on several occasions until he ejaculated into her anus. He then commenced to search the room, demanding to know where her wallet was. He was interrupted by the arrival of a tradesman at the property and made off.

Counts 23 to 26 (Aggravated burglary, aggravated attempted sexual penetration, aggravated sexual penetration and stealing)

70 On 21 February 1997, the complainant, D, then aged 47 years, was at home alone in her house in Carlisle, asleep on a couch in front of television. She was woken by the applicant pulling her hair and hitting her in the face with his clenched fist and yelling at her to get on the floor. The television had been switched off and the house was in darkness. The applicant punched the complainant several times to her right eye and cheek and dragged her by her hair to the bedroom and told her to take off her clothing and lie down on the bed. He forced her to position herself in various ways, attempted to penetrate her vagina with his penis and eventually succeeded in doing so. He continued intercourse for a prolonged period until ejaculation and then made off with a handbag containing about $500 in cash. As he left, he told her "In future keep the windows shut, you silly bitch".

Counts 27 to 31 (Aggravated burglary, aggravated attempted sexual penetration, aggravated sexual penetration, deprivation of liberty and stealing)

71 At about 10.30 pm on 5 April 1997, the complainant, W, then aged 24 years and a virgin, was at home alone in her house in East Victoria Park. From the bathroom, she heard her bedroom door close and when she looked she saw the applicant wearing dark clothing, including material covering his head and what appeared to be a scarf covering his mouth. He was armed with a knife. The light then went off and the complainant screamed and the applicant told her to shut up, that he was not the "serial killer" and that he was "only after one thing". He pushed the complainant to the floor, dragged her to the bed and told her to lie on her stomach, then took off her lower clothing. She told him she was a virgin, which did not stop him. He attempted to penetrate her anus with his penis, then forced her into another position and penetrated her vagina with his penis, causing her pain. The applicant continued intercourse until ejaculation and then tied the complainant's feet together and tied her arms behind her back and left with her wallet and a small amount of money.

72 During the evening of 29 July 1997, the applicant broke into unoccupied premises in East Victoria Park belonging to the complainant, K. This he did by smashing a rear glass door. He stole $2,000 in cash from a filing cabinet in the study, none of which was recovered.

Count 33 (Assault occasioning bodily harm and burglary)

73 At about 10.45 pm on 23 January 1998, the complainant, then aged 47 years, was at home in her house in Midvale with her 22-year-old son. After watching television, she went out to the carport. The applicant was in the carport and immediately grabbed her head with his hands and forced her to the ground and then attempted to force her towards the front door. The complainant screamed and attempted to fight him off. In the struggle, she fell heavily and sustained injury, but continued to resist the applicant until he ran off.

74 At some time between 23 January and 25 January 1998, the applicant broke into the home of the complainant in Swan View by smashing a rear kitchen window. He searched the house, but found nothing of value and left. The damage occasioned by his entry cost about $150 to repair.

75 The applicant's activities were the subject of an intensive police investigation, which resulted in the arrest of the applicant in January 1999. In all but one count on the indictment, he was connected to the offence by the DNA method. He readily admitted the offences and provided police with detailed confessional material.

76 The learned sentencing Judge saw victim impact statements from the female complainants who had been sexually penetrated. It is obvious that all complainants are very gravely traumatised by the applicant's attacks on them. The statements speak eloquently of the devastating consequences to these women of his conduct. The victim impact statement by the youngest complainant, G, concludes with the request: "Please accept this letter as proof of the life ruined for [G] at a minor age of 15 years old".

77 The applicant has a substantial history of offending. Before he was charged with these offences, he had a total of 66 convictions commencing in January 1993 when he was 13 or 14 years of age. He is now aged 30 years. The first of his convictions was for breaking and entering with intent and his record contains some 30 convictions for that offence over the years. There are several convictions for other serious offences, including attempts to defeat or pervert the course of justice, threats to kill and assaulting a public officer. There are convictions for railway offences, for violent behaviour, for crimes of dishonesty such as receiving and scattered throughout his record are convictions for driving offences, cannabis offences, giving a false name and address, being on a curtilage without lawful excuse, breach of bail and so on. He has received custodial sentences on previous occasions. In 1988, he was sent to prison for 2 years and 3 months for some 12 offences of breaking and entering with intent, stealing and two offences of breach of probation. In 1991, he was sent to prison for 6 months for what seems to have been his fifth, or perhaps his sixth, offence of driving whilst under suspension. Later that year, he was sentenced to a total of 3 years and 6 months' imprisonment for attempting to defeat the course of justice, receiving and several offences of breaking and entering. In December 1995, he was given one sentence of 12 months' imprisonment for assaulting a public officer and two sentences each of 12 months' imprisonment for making threats to kill and one sentence of 1 month's imprisonment for doing damage. It would appear that these sentences were ordered to be served concurrently. In 1997, he received a suspended sentence of 4 months for driving whilst under suspension, which seems to have been his ninth or tenth conviction for that offence.

78 It is notable that the series of offences now under consideration started before he would have commenced to serve the sentences he received in December 1995 for the offences of assaulting a public officer and threatening to kill and resumed after his release from prison in respect of those offences.

79 After the applicant had been arraigned on 4 June 1999, the learned sentencing Judge remanded him in custody for the purpose of the preparation of psychological and psychiatric reports. A psychological report was prepared by a forensic psychologist attached to the Sex Offender Treatment Unit and a psychiatric report was prepared by a senior consultant forensic psychiatrist in the Health Department. These reports were attached to a pre-sentence report prepared by the Acting Senior Community Corrections Officer in the Ministry of Justice. These three documents are a very comprehensive assessment of the applicant and his prospects for rehabilitation.

80 On 15 July 1999, his Honour heard submissions in mitigation in the light of the above material and he heard further submissions from the Crown as to the seriousness of the offending and as to the appropriate disposition of the matter. On behalf of the Crown, it was submitted that eligibility for parole should be refused and an indefinite sentence ought to be imposed, pursuant to s 98 of the Sentencing Act 1995.

81 The learned sentencing Judge imposed sentences ranging from 9 years' imprisonment down to 2 years' imprisonment. These were moderate sentences, by and large, for the crimes. To accommodate the totality principle and because some of the offences arose from the one episode of criminal activity, many of the sentences were allowed to run concurrently. What his Honour said was:

"The principle of totality intervenes and, in my judgment, dictates that the head sentence herein should be determined by declaring that the terms imposed on the first numbered counts of actual penetration whilst armed, namely counts 2 and 9 should be served cumulatively but concurrently with all other terms imposed today."

82 The aggregate term was, therefore, 18 years. His Honour said that in arriving at that sentence he had given credit for the applicant's pleas of guilty.

83 There is no challenge to any of the individual sentences, nor to the way in which his Honour structured the sentences to produce the aggregate of 18 years.

84 His Honour then turned to the question of parole eligibility and to the Crown's application for indefinite imprisonment. After referring to the matters which the court was required by s 89(2) of the Sentencing Act to take into account in determining whether it is appropriate to make a parole eligibility order, his Honour said:

"It is difficult to overstate the seriousness of the sexual attacks. All of the violent sexual offences contain elements of the infliction of terror of violence and of brutality.

The victim impact statements filed in the Court from a number of the victims of the sexual attacks are entirely credible and clearly show the severe and ongoing effects of the degrading and violent sexual attacks committed upon these several persons."

85 His Honour then dealt with the applicant's antecedents and said:

"The offender's antecedents give him no comfort or assistance. They clearly show that the offender has at all times since childhood shown little regard for the property or rights of the others."

86 On the question whether there might be circumstances relevant to the applicant at the time when he would be eligible for release on parole if a parole eligibility order were made his Honour said:

"One of the best predictors of the future must always be the conduct and actions of the past and the conduct and actions of this offender are so horrendous, carried out over such a period of time with evidence of such sadism and hatred of women, that I cannot reach a conclusion or be in any way persuaded at this time that circumstances relevant to the offender will be different in a decade. I therefore decline to make any order for eligibility and perhaps by way of aside state that the seriousness and nature of the offences, the circumstances of their commission and the offender's antecedents combined in my view completely swamp any other factor which might be considered relevant under section 89(2)(d)."

87 The notice of appeal filed on behalf of the applicant seeks leave to appeal against the refusal to make a parole eligibility order on a number of grounds. In the first place, it is said that his Honour "failed to start from a presumption in favour of the grant of parole". I do not think this is a proper ground of appeal. The question is whether the sentencing court gave consideration to the matters it was required to consider, not whether the sentencing court did or did not start from one presumption or another. The statement in Thompson v The Queen (1993) 8 WAR 387 that the "philosophy of the Act [Sentencing Act] suggests a bias towards eligibility" does not mean that sentencing Judges must "start from a presumption in favour of the grant of parole". As I understand that case, it stands for the proposition that provided there is material before the sentencing Judge which points positively towards the appropriateness of parole, the discretion to grant parole will be exercised in favour of the prisoner unless there is sufficient reason not to exercise that discretion in his or her favour. I am not persuaded that the trial Judge in this case approached the question otherwise than in accordance with the principles stated in Thompson.

88 Next it is said that his Honour erroneously "considered the applicant's intelligence and educational achievement not to be a factor favourable to the applicant". I am unable to find anything in his Honour's sentencing remarks which are to this effect. What the learned sentencing Judge did say was that the applicant was reported to be "intelligent and well educated" and that his "capacity to express himself was notable at times reflecting quite sophisticated language skills and comprehension". His Honour made that remark in that part of his sentencing remarks in which he gave general consideration to the applicant's character and antecedents.

89 Next it is said that his Honour "gave undue weight to the applicant's past convictions and particularly those offences committed while the applicant was a juvenile". I am not persuaded that his Honour did so. Past convictions and the applicant's recidivist behaviour was highly relevant to the question whether he ought to be given the opportunity of parole. It would have been wrong not to give considerable weight to those matters. Where the criminal record of an applicant shows numerous convictions, extending back to childhood involving several prison sentences, the genuine prospects of rehabilitation through the grant of parole eligibility will properly be considered to be fast disappearing, if they have not completely disappeared. In my opinion, his Honour did no more than take the applicant's bad antecedents into proper account.

90 Next it is complained that the learned sentencing Judge "found that there were no circumstances that would be favourably relevant to the applicant at the time when he would be eligible for release if a parole order was made". This complaint is without foundation. After reviewing the circumstances of the offences and analysing the applicant's criminal record and referring to the prison sentences that had been imposed upon the applicant in the past, none of which had deterred him in the slightest or rehabilitated him at all, the learned sentencing Judge said:

91 That, of course, is a direct application of s 89(2)(d) of the Sentencing Act. I am not persuaded that in reaching that conclusion the learned sentencing Judge misdirected himself in any way. On the contrary, it is the only conclusion that was open.

92 Next, complaint is made about his Honour's statement to the effect that "the best predictors of the future must always be the conduct of actions of the past". I do not see how any exception can be taken to that statement. It is self-evidently true. Obviously, the criminal disposition of the person who is being sentenced is to be assessed by reference to his antecedent history, amongst other things, and all that his Honour meant was that if you have a man of 30 years of age or thereabouts with a criminal record extending back to his early teens, comprising 66 convictions and multiple gaol sentences who is presently before the court on 34 charges of offences committed over about three and a half years, most of which are very serious offences, then you probably have a man whose criminality is entrenched.

93 It is then said that his Honour failed to have regard for certain particular circumstances, including "the potential rehabilitative consequences of 10 years' imprisonment"; "the potential positive consequences of the Sex Offender Treatment Programme ... "; "the complete absence of any expert evidence as to the probability of the applicant reoffending after 10 years' imprisonment ... " and the like. I can find nothing in his Honour's sentencing remarks which indicates that he put these matters to one side. The learned Judge adjourned sentencing so that a pre-sentence report could be obtained and he specifically requested psychiatric and psychological assessment. It is quite apparent from his sentencing remarks as a whole that he studied the reports which he then received. He invited further submissions in the light of the reports and received comprehensive submissions from counsel for the applicant as well as from the prosecutor. There is no basis for the suggestion that his Honour did not give careful consideration to all that was in the reports bearing upon eligibility for parole, both the good and the bad.

94 In Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, which was a Western Australian case, the High Court said that the intention of the legislature in providing for the fixing of minimum terms is to provide for the mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom. That was said at a time before parliament removed the power of the courts in Western Australia to fix minimum terms. It is no longer for the court to determine the minimum time that justice requires the prisoner to serve, having regard to all the circumstances of the case. If the court makes a parole eligibility order, the earliest date on which a prisoner may be released to parole depends not on judicial discretion, but on the application of the statutory formula in s 93 of the Sentencing Act 1995. However, the Sentencing Act does not require some different view to be taken of the purpose of parole. It is still directed primarily towards rehabilitation. If anything, s 89(2) of the Sentencing Act, which enumerates the matters to which a court may have regard in considering whether to make a parole eligibility order, confirms that this is so. All the specific matters which are enumerated in the subsection go to the question whether the proper sentence which has been imposed should be mitigated in favour of rehabilitation. The matters enumerated in the subsection are the very matters that had to be considered under the old regime when the court was deciding whether or not to fix a minimum term. One of the most important and difficult tasks for the sentencing Judge has always been to estimate the capacity of the prisoner for reformation: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 629. In one sense, it is impossible to foretell the effect of a long prison term on a prisoner, but merely because successful rehabilitation cannot be ruled out does not mean that parole eligibility must be granted. The nature of the offences and the antecedent character of the prisoner who committed them are obviously very important matters and must weigh heavily with the sentencing court in deciding whether the sentence must be served without the benefit of parole. They are the matters which usually will be the best indicators as to the likelihood that a parole period will serve its purpose and they are the very matters which the Judge in this case believed outweighed other considerations. I do not accept the submission that he gave them too much emphasis. In my opinion, the applicant had clearly forfeited any right to be considered eligible for parole. The pre-sentence report and the antecedent report record that the applicant was placed on probation for 6 months in July 1987 for two offences of stealing. He was then already on probation for other offences. It was whilst he was serving these periods of probation that he committed the 12 break and enter offences, for which he was sentenced in May 1988 to 2 years and 3 months' imprisonment. As has also been mentioned, in October 1991 the applicant was sentenced to a total of 3 years and 6 months' imprisonment for a string of offences, including several break and enter offences committed very soon after finishing parole in respect of the May 1988 sentence. In respect to the October 1991 sentence, he was released to parole in February 1993. The parole order was cancelled when he failed to report and changed addresses without notifying his parole officer. He was again released to parole in April 1994. This parole order was suspended in September 1995 and cancelled upon his conviction in December 1995 of the offences of assaulting a public officer and making threats to kill. As can be seen from the indictment with which we are presently concerned, it was while he was out on parole between April 1994 and September 1995 that the crimes charged in counts 1 to 22 were committed. The sentences which he received in December 1995 aggregated 12 months and he was released to parole on 5 April 1996 for a period due to expire on 30 April 1997. It was a condition of this order that he attend psychological counselling as directed. It is to be presumed from the fact that he is recorded as having successfully completed the parole period that he did in fact attend counselling, yet, as can be seen from the indictment with which we are presently concerned, it was in this period that he committed the very grave crimes charged in counts 23 to 31.

95 Thus, 31 of the 34 offences for which he had to be sentenced in this case were committed whilst the applicant was on parole and to all outward appearances complying with the conditions of parole, including counselling.

96 It was open to the learned sentencing Judge to take the view that the applicant has no capacity to benefit from parole and it was open to him to take the view that the protection of the community outweighed the considerations which usually lead to the making of a parole order when a lengthy sentence is imposed.

97 I would dismiss the appeal against the refusal to make a parole eligibility order.

98 The relevant parts of s 98 of the Sentencing Act have been set out in the judgment of Wallwork J.

99 It is clear that an indefinite sentence is only to be imposed in exceptional circumstances: Tunaj v R [1984] WAR 48 per Burt CJ at 51. In Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611, it was laid down by the High Court that such a sentence should be reserved for very exceptional cases. It was held that the "nature of the punishment, the term of which is terminable by executive, not by judicial, decision, requires that the sentencing Judge be clearly satisfied by cogent evidence that the convicted person is a constant danger to the community in the sense already explained; ie, in the sense that he presents a constant danger of doing violent harm".

100 Chester was decided in the context of s 662(a) of the Criminal Code which contained little by way of specific criteria to assist the sentencing court. That section was repealed in 1995 on the passing of the Sentencing Act and it is now to s 98 of the latter Act to which courts must look for guidance as to when the power may and may not be exercised. It is clear from s 98 that the exercise of the power is not now to be reserved for those cases in which the convicted person has a propensity to commit crimes of violence and presents a danger of doing violent harm. It is sufficient that the court be satisfied that the prisoner would be a danger to society inter alia because of the risk that he or she will commit "other indictable offences" (s 98(2)(b)). To the extent that Chester laid down that the exercise of the power must be restricted to those cases in which the danger to the community is of violence, it would not now seem to be necessary to go that far. Furthermore, s 98 provides that the level of satisfaction of danger to the community is satisfaction on the balance of probabilities. Nevertheless, as Kennedy J pointed out in McGarry v The Queen [1999] WASCA 276, it is still the case that a sentence of indefinite imprisonment is to be regarded as an exceptional sentence and is only to be imposed in exceptional circumstances. The basic sentencing principle is that punishment is to be proportionate to the crime and it must surely be in special circumstances only that it is proper to add an indefinite sentence to such a sentence.

101 However, in the end, it is a discretionary power and the question for this Court is whether it was fairly open to the court below to make the order in the particular case. In Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007, the High Court reiterated the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court is of a different opinion. At 1010, the High Court said:

"Sections 89 and 98 of the [Sentencing] Act ... involve the making of discretionary judgments.

The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well-established ... Of particular importance in the present case is the principle that a Court of Criminal Appeal may not substitute its own opinion for that of a sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. House v The King [1936] HCA 40; (1936) 55 CLR 499. The discretion which the law permits to sentencing judges is of vital importance in the administration of our system of criminal justice."

102 The question, therefore, is not whether we are of the same opinion as the learned sentencing Judge as to his disposition of the matter, but whether his Honour erred in the exercise of his discretion. In my opinion, it was open to the learned Judge to be satisfied on the balance of probabilities that this applicant is now a constant danger to society through his propensity to commit indictable offences, including crimes of violence and sexual crimes against women who are alone in their homes at night; and that the danger is of such a magnitude as to warrant the exceptional step of imposing an indefinite sentence. The main factors leading me to that view are as follows.

103 The applicant has a long record of persistent offending, strongly indicative of an entrenched criminality. There are four previous sentences of imprisonment. He has a record of persistent, serious offending whilst under conditional release, indicating that neither punishment nor the constraint of conditional release has been sufficient to curb his disposition to commit serious offences. There is a history of drug addiction and episodes of mental illness.

104 The offences of aggravated sexual penetration were committed against six separate women aged from 15 to 48 years, all in their own home at night or in the early hours of the morning over a period of about three and a half years. All of these sexual crimes were committed while he was on parole for other offending. Whilst his sexual offending did not begin until June 1994, a disturbing feature of the psychological report is that whilst his first decision to sexually offend appears to have been spontaneous, triggered by encountering a woman in her home whilst committing burglary, his subsequent sexual offences became more calculated. The following is an extract from the report of the forensic psychologist:

"From his description during interview of the pattern of his offending, and as described in the record of interview with the police, it is likely that in the earlier offences he encountered a woman in her home when his intention was to steal money. His decision to sexually offend appears to have then been spontaneous, however his later offences appear more calculated in this regard, and were likely stimulated by the positive reinforcement of the experience to him of the previous aggressive sexual assaults against his earlier victims."

105 The psychologist identified, in the applicant's make-up, an attitude which she described as "anger against women". The psychologist thought that the applicant suffers from a major depressive disorder with psychotic features and concluded that "without intensive therapeutic intervention, Mr Garlett is assessed as presenting a high risk of re-offence". I do not understand this to mean that "intensive therapeutic intervention" is likely to be successful.

106 The psychiatric report included with the pre-sentence report material requested by the learned sentencing Judge also assessed the applicant as "posing a serious risk of reoffending". He was diagnosed as having "a significant personality disorder of an antisocial/borderline cluster". The applicant's indications of remorse and "victim empathy" were obviously viewed with scepticism by the psychiatrist who concluded:

"In Mr Garlett's sexual offending it is my view that revenge was his motive and some of his acts of offending were indicative of sadistic nature. His remorse and victim empathy require to be further tested and challenged. He carries a high risk of reoffending."

107 The revenge spoken of was not revenge referable to the particular victims, but revenge against women in general. There are passages in the report which are to the effect that reoffending was likely to be triggered by any emotional setback or relationship breakdown. This is consistent with the comments made in the psychological report connecting the most extreme episodes of offending to relationship breakdowns. On page 3 of the psychological report, the following passage appears:

"During interview Mr Garlett described a lengthy history of broken relationships. He claimed to have struggled with serious depression when these relationships ended, always he said at his partner's instigation. He claimed to have typically offended immediately following the breakdown of these relationships when feeling abandoned and rejected and seriously depressed as a consequence."

108 In addition to the pre-sentence report and the psychiatric and psychological reports which the learned sentencing Judge had ordered to be prepared, he also had the benefit of other specialist reports tendered on behalf of the applicant. His Honour expressly referred to these reports in his sentencing remarks and it is clear that he gave full consideration to them. There is nothing in those reports which contradicts or which qualifies to any significant degree the opinions expressed in the pre-sentence material, to which reference has been made. If anything, the additional material confirms the opinions expressed in the pre-sentence material. There is a letter from the psychiatrist in charge of the Graylands Special Care Hospital, confirming that in May 1994 the applicant was referred by Katanning Hospital to the Graylands centre for treatment of a condition described as "paranoid thought disorder, auditory hallucinations and agitation/aggressive behaviour". He was discharged after a few days, when it was reported that he had "showed a complete resolution of his psychotic symptoms". The specific diagnosis was "drug induced psychosis".

109 There is a report by Dr Diane Faulkner-Hill dated 9 February 1999 giving a history of consultations from June 1990 until January 1999. Dr Faulkner-Hill is attached to Derbarl Yerrigan Health Service, which was formerly the Perth Aboriginal Medical Service, and in that capacity she saw the applicant on a number of occasions from about October 1997. On earlier occasions, he had been seen by other doctors. In October 1997, Dr Faulkner-Hill found the applicant to be mentally disturbed and prescribed antidepressants and antipsychotic drugs. She saw him again a week later when he described episodes of violent behaviour since the last consultation, including that he had smashed a car window with an iron bar. Dr Faulkner-Hill found the applicant to be "quite psychotic, reporting messages from his 7-year-old son, and from passages in the Bible, which apparently he read a lot".

110 There is a report from a clinical and forensic psychologist, Mr Watts, who attended upon the applicant at the Canning Vale Remand Centre on 13 May 1999 when he conducted a psychological assessment and interview lasting approximately two hours. Mr Watts found the applicant to have "substantial personality problems of a severe nature" and that "central to the offences he committed was an intense anger towards women", arising, in part, through a series of failed relationships. Mr Watts found his psychological make-up to be "bordering on psychiatrically disturbed". He concluded that the applicant is "a very disturbed man who presents quite well and has functioned fairly well in society. However, there is a psychotic underlay which surfaces at times of lack of support". It was his opinion that "the combination of his psychological/psychiatric make-up, the early emotional deprivation, his lack of stable relationships with adult women, and the bad life experiences have resulted in him acting out his anger in a sexual fashion". He considered that the applicant is a "very high suicide risk" and sadly he thought the most likely outcome for the applicant "will be his death by his own hand". He assessed him as having a high risk of reoffending, although the prospect of successful treatment was not out of the question.

111 There is a report from Dr Lois M Achimovich, a highly qualified consultant psychiatrist. Dr Achimovich concluded that the applicant "presents a difficult diagnostic problem". She confirmed that he had "undoubtedly been psychotic on at least three occasions", but was not actively psychotic when she saw him. She thought that his history and symptoms best fitted a diagnosis of "borderline personality disorder" most likely resulting from a severely deprived and abused childhood. She thought he exhibited "marked impulsivity, intense abandonment fears, self-destructive and self-mutilating behaviours, difficulty controlling anger, transient paranoid ideation, psychotic-like symptoms, substance abuse, affective liability". She thought that the repetitive acts of "non-consenting sex indicate the presence of sexual compulsivity, with the [applicant] gaining pleasure from the power he has over the victim". She thought that the increase in the coerciveness of his conduct over time indicated "the breaking through of sadistic impulses". She explained that the use of the word "sadism" in this context "refers to the pleasure in coercing and dominating the victim".

112 Dr Achimovich was not able to offer a firm prognosis. Her report concluded in the following terms:

"With appropriate psychotherapeutic care, Mr Garlett is capable of maturation and resolution of his violent impulses. Much will depend on what therapeutic help he may be able to access in prison. Regular psychiatric and psychological assessments, together with monitoring by prison staff, will give the best indications of progress."

113 Taken as a whole, these reports, including the pre-sentence material, do not support the submissions made on behalf of the applicant that an order for indefinite imprisonment was not justified in this case. At its best for the applicant, the material goes no further than to offer the bare possibility that if intensive treatment is administered to the applicant during his period of imprisonment, there may be a reduction in the risk of reoffending. All in all, however, the reports paint a portrait of a highly dangerous man, not the less dangerous because most of the time he is able to function fairly well in the community.

114 Whilst it is true that the learned sentencing Judge used some words tending to suggest that he had adopted the wrong test in assessing the risk that would be presented to society on the release of the applicant, looking at his sentencing remarks as a whole I am not persuaded that his Honour actually did apply the wrong test. Particular complaint is made about the following passage in his Honour's sentencing remarks:

"I am satisfied as I am required to be satisfied under section 98(2) that on the materials that lie before me the offender would be a danger to society at the time he would otherwise be released. There is no certainty at this time that there would be any change in the offender's attitude or that he would in any way seek to avail himself of any professional assistance." [I have supplied the Italics.]

115 I do not believe that by these words his Honour is to be taken as having sentenced on the basis that unless rehabilitation was a certainty, an indefinite sentence ought to be imposed. It is quite clear from his remarks as a whole that the learned Judge completely understood what it was that he had to decide as the prerequisite for the imposition of an indefinite sentence; namely, that on the balance of probabilities, the applicant would be a danger to society, or a part of it, when he would otherwise be released from custody because of one or more of the factors enumerated in s 98(2). It is clear, in my opinion, that his Honour used the phrase "there is no certainty" in a colloquial sense.

116 I would grant leave to appeal against the order of indefinite detention, but I would dismiss the appeal.

Garlett v The Queen [2000] WASCA 72

At a glance

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Judgment (177 paragraphs)

Garlett v The Queen [2000] WASCA 72 (21 March 2000)

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Cases Cited (10)