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[1999] HCA 29
appellant. Appeal allowed. Orders of the Court of Criminal Appeal in relation to the Crown appeal against sentence set aside and the Crown appeal dismissed. The sentencing judge's parole eligibility order...
A repeat sex offender received a six-year sentence with parole eligibility so he could receive supervised treatment on release. The appeal court thought he was too dangerous and changed it to indefinite jail. The High Court said the appeal judges were wrong to do this because they could not simply replace the trial judge's careful decision with their own view; they had to first find a clear legal mistake. Sentencing discretion is vital and appeal courts must respect it unless real error is shown. The original parole order was restored.
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The appellant, Mr Lowndes, was convicted by a jury in the District Court of Western Australia on 28 November 1996 of seven sexual offences committed against two 12-year-old boys between October and December 1995. Four counts involved procuring a child under 13 to do an indecent act contrary to s 320(5) of the Criminal Code (WA), and three involved indecent dealing with a child under 13 contrary to s 320(4). Each offence carried a maximum penalty of ten years' imprisonment. The offences were not, as the prosecutor conceded at sentencing, at the highest end of seriousness for their type; some fell at the lower end and others approached the middle of the range.
No linked legislation citations have been extracted yet.
At the time of sentence on 19 February 1997 the appellant was 44, unemployed, in receipt of an invalid pension, and had a documented history of sexual offending against pre-pubescent boys stretching back more than 20 years. That history, described by the sentencing judge as "spasmodic", included convictions for aggravated assault on a child (1973), further aggravated assaults and indecent dealings (1978–1980), and, most relevantly, 11 counts of unlawful and indecent assault on a child under 16 plus three counts of attempted sexual penetration, for which he received a custodial sentence in 1991. The index offences occurred shortly after the expiration of parole for those 1991 matters. The appellant's personal history was extremely deprived: his father killed his mother in his presence when he was nine, he was placed in boys' homes and foster care, suffered serious sexual abuse, and had never reconnected with his siblings.
Jackson DCJ imposed an effective head sentence of six years' imprisonment. He made a parole eligibility order under s 89 of the Sentencing Act 1995 (WA) in respect of one count only. The practical effect was that the appellant could become eligible for parole on 29 March 2000. In reaching that decision his Honour had before him a psychiatric letter from Dr Carter offering post-release libido-reduction treatment, a report from Dr Pullela diagnosing paraphilia with antisocial traits and high reoffending risk, and a detailed pre-sentence report from forensic psychologist Ms Cull. Ms Cull assessed the risk of reoffence as "extremely high", noted the appellant's unsuitability for standard prison sex-offender programmes, and observed that pharmacological intervention would be of limited value while he remained incarcerated. The judge expressly acknowledged the narrow nature of the decision, the danger the appellant posed, and the previous failure to complete treatment programmes, but concluded that the prospect of supervised treatment and counselling on parole tipped the balance in favour of eligibility.
The Director of Public Prosecutions appealed to the Court of Criminal Appeal under s 98, contending that indefinite imprisonment should be imposed and that the parole eligibility order should be set aside. On 8 August 1997 the Court of Criminal Appeal (Malcolm CJ, with whom the other members agreed) allowed the Crown appeal. It left the six-year finite term untouched but revoked the parole eligibility order and ordered that, upon completion of that term, the appellant be imprisoned indefinitely. Malcolm CJ placed particular weight on the failure to complete previous treatment, the pessimistic prognosis, and the view that any pharmacological attempt should be made inside the prison system. He concluded that on the balance of probabilities the appellant would constitute a danger to society at the expiry of the finite term.
The appellant appealed to the High Court. The Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ delivering a single judgment) allowed the appeal on 17 June 1999. It set aside the orders made by the Court of Criminal Appeal on the Crown appeal and dismissed that Crown appeal, thereby restoring the sentencing judge's parole eligibility order. The High Court held that the Court of Criminal Appeal had failed to identify any House v The King error in the sentencing judge's discretionary decision and had impermissibly substituted its own view.
The High Court began by locating the statutory framework. Section 98 permits a superior court that has imposed a non-suspended term of imprisonment without a parole eligibility order to add an order for indefinite imprisonment if satisfied on the balance of probabilities that the offender would be a danger to society (or part of it) at the time of otherwise lawful release. The factors include exceptional seriousness, risk of further indictable offences, the offender's character and any psychological or medical condition, and other exceptional circumstances. Section 89, by contrast, empowers the court to make a parole eligibility order after considering the seriousness and circumstances of the offence, the offender's antecedents, and any factors relevant at the future parole date. An order under s 98 cannot be made if a parole eligibility order has already been made, creating an obvious practical linkage although the legal questions remain distinct.
The Court emphasised at [11] that legislation of this kind is not novel and repeated the statement from Chester v The Queen that the power "should be confined to very exceptional cases where the exercise of the power is demonstrably necessary". Because indefinite imprisonment exceeds proportionate punishment it is exceptional both as to power and as to the cases that attract it. The decision required by s 98(2) is inherently predictive: the court must form a view about the offender's state several or many years into the future. That exercise involves evaluation of risk, possible mitigating steps such as treatment, and difficult questions of judgment. In the present case the Crown relied on the combination of paragraphs (b) and (c) of s 98(2)—risk of further offences and the offender's character and psychological condition.
Crucially, the High Court held that both the decision whether to make a parole eligibility order and the decision whether to order indefinite imprisonment are discretionary judgments. The principles governing appellate review of such judgments are those summarised in House v The King and, in the sentencing context, applied in cases such as R v Allpass and R v Clarke. An appeal court cannot intervene merely because it would have reached a different conclusion. At [15] the Court stated that this principle "is basic" and that the discretion committed to sentencing judges "is of vital importance in the administration of our system of criminal justice".
Applying those principles, the High Court found that the Court of Criminal Appeal had not identified any material error of fact or law in Jackson DCJ's reasoning. The sentencing judge had before him the same body of evidence now relied upon by the Crown. He had expressly adverted to the high risk of reoffending, the previous failure to complete a sex-offender programme, the appellant's psychological profile, and the uncertain availability of pharmacological treatment. He made a "very narrow decision" but concluded that the interests of both the appellant and the community would be better served by supervised release on parole. The only possible point of factual divergence concerned the availability of libido-reducing medication inside prison otherwise than immediately prior to release. The High Court held at [40] that the evidence on that issue was inconclusive and that it had been open to the sentencing judge to form the view he did. No failure to take account of a material consideration, taking account of an immaterial one, or other House v The King error was demonstrated.
The Court of Criminal Appeal's reasoning at [34] was criticised for inverting the appellate question. Instead of asking whether the sentencing judge had erred in granting parole eligibility, Malcolm CJ asked whether there was a sufficient reason not to grant it and whether indefinite imprisonment should be ordered. That approach, the High Court said at [38], failed to apply the required appellate restraint. Even though the two statutory questions were related in practice, the Court of Criminal Appeal was obliged to find error before substituting its own discretionary outcome. Because no such error was identified, the appeal had to be allowed and the original orders restored.
Prior to the Sentencing Act 1995 (WA) the precursor provision was s 661 of the Criminal Code, considered by the High Court in Chester v The Queen. That decision established that the power was to be used only in "very exceptional cases" where "demonstrably necessary". The High Court in Lowndes expressly repeated and applied that limitation at [11], confirming that the new statutory language in s 98 had not altered the exceptional character of the power.
The law on appellate review of sentencing discretion was already settled by House v The King and its application in criminal appeals (R v Clarke, R v Allpass). Lowndes did not change those principles but reinforced their application to the newly structured provisions of the Sentencing Act. In particular, it made clear that both the s 89 parole eligibility decision and the s 98 indefinite imprisonment decision attract the full House v The King standard. The Court also clarified at [10] and [13] that, while the factual matters relevant to each section may overlap substantially, the ultimate discretionary questions are legally separate and must be addressed on their own statutory terms. A decision to grant parole eligibility precludes an order under s 98, but refusal of parole eligibility does not automatically require indefinite imprisonment.
After Lowndes, sentencing courts in Western Australia must approach s 98 with the Chester/Lowndes restraint. Appeal courts, whether dealing with offender or Crown appeals, must identify specific error before interfering with either a refusal or a grant of parole eligibility when that decision is intertwined with s 98 considerations. The judgment underscores that the predictive and evaluative nature of the "danger to society" test does not lower the appellate threshold; if anything, the exceptional character of indefinite imprisonment heightens the need for demonstrable necessity and for appellate respect for the sentencing judge's assessment of the same evidence.
Paragraph [11] states: "the exercise of the power 'should be confined to very exceptional cases where the exercise of the power is demonstrably necessary'." In plain English the Court is saying that locking someone up forever is not ordinary sentencing; it is a drastic step that can be taken only when the materials before the judge make it obviously essential for public protection. The phrase "demonstrably necessary" sets a high bar that prevents indefinite detention becoming routine for high-risk offenders.
At [15] the Court said: "a court of criminal appeal may not substitute its own opinion for that of the 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." This is a direct reminder that appeal judges are not a second sentencing court. They cannot simply say "we would have given indefinite imprisonment" and do so. They must first find a legal or factual mistake or an outcome so unreasonable that it must have involved some misapplication of principle.
Paragraph [38] is critical: "The question for the Court of Criminal Appeal was not whether the sentencing judge had a sufficient reason not to make an order for parole. The question for the Court of Criminal Appeal was whether the making of an order for parole involved error of a kind warranting appellate interference with a discretionary judgment." In everyday language the High Court is pointing out that the appeal court asked itself the wrong question. It decided whether it agreed with the outcome rather than whether the original judge had made a reviewable mistake. That error of approach required the High Court to intervene.
Paragraph [40] concludes that "the reasoning of Malcolm CJ identified no failure on the part of the sentencing judge to advert to any material consideration, no taking into account of any immaterial consideration, and no error on the part of the sentencing judge which justified setting aside his exercise of discretionary judgment". Translation: the appeal court listed all the risk factors but never explained how the sentencing judge had gone legally wrong in balancing them. Without that explanation the intervention could not stand.
Lowndes is triggered whenever a sentencing court is asked both to decide parole eligibility under s 89 and to consider indefinite imprisonment under s 98 of the Sentencing Act 1995 (WA) (or analogous legislation elsewhere). The paradigm case is a repeat sexual offender against children where psychiatric and psychological reports speak of high or extreme risk, previous treatment failures, and personality or paraphilic disorders. The fact pattern need not involve the most serious examples of the offence type; the prosecutor in Lowndes conceded the offences were not exceptionally serious yet the risk assessment still engaged s 98.
The precedent applies with equal force to both offender appeals and Crown appeals. It is engaged whenever the appellate court is invited to overturn a discretionary choice that balanced community protection against the possibility of supervised rehabilitation. It is particularly relevant where the evidence on treatment—especially pharmacological or psychological interventions—is incomplete or contested as to availability inside or outside prison. The decision also applies to any discretionary sentencing judgment attended by predictive risk assessment; the House v The King overlay means that mere disagreement with the weight given to future danger is never enough.
Fact patterns that do not trigger the precedent include cases where the sentencing judge has made an obvious arithmetical error, overlooked a statutory precondition, or failed to advert to a mandatory consideration. In those situations specific error is present and Lowndes does not prevent appellate correction. Similarly, if the sentencing judge has made no parole eligibility order and the offender appeals that refusal, Lowndes requires the appeal court to find error rather than simply re-exercising the discretion.
Although the judgment itself does not cite subsequent authority, it carefully positions itself within the existing stream of authority. It follows Chester v The Queen without qualification, repeating the "very exceptional cases" and "demonstrably necessary" language at [11] and [12]. It applies House v The King directly to the new statutory regime, confirming that the introduction of the Sentencing Act did not alter the appellate standard. The distinction drawn at [14] from Mitchell v The Queen shows that the Court viewed ss 89 and 98 as conferring true discretions rather than powers conditioned on the satisfaction of jurisdictional facts alone.
The judgment treats the summary of parole principles in Thompson v The Queen as generally correct on the relevance of community protection but leaves open the precise meaning of the "bias towards eligibility" phrase because it was not fully argued. Later courts reading Lowndes are therefore directed to treat the Thompson propositions cautiously and to decide each case on the statutory text and the evidence actually before the sentencing judge. The emphasis at [10] and [13] on the legal separateness of the s 89 and s 98 inquiries, despite factual overlap, has guided courts to avoid automatic translation of a parole refusal into an indefinite sentence without separate statutory analysis.
The decision reinforces the continuing vitality of R v Moffatt's discussion of the history of preventive detention and the exceptional character of such orders. Courts applying Lowndes are reminded that the predictive exercise required by s 98(2) does not lower the appellate bar; the same strict House v The King discipline applies even when the materials point to a high risk of reoffending.
The judgment expressly leaves several matters unresolved. At [8] it notes that the meaning of the proposition in Thompson v The Queen that "the philosophy of the Act suggests a bias towards eligibility" is "somewhat elusive" and that the point "was not fully argued". That issue remains open for future litigation.
The precise boundaries of the evaluative exercise required by s 98(2) are not exhaustively mapped. The Court acknowledges at [12] that the concept of "danger to society, or a part of it" may involve difficult questions of judgment, but does not provide a checklist beyond the statutory factors. How a court should quantify or weigh the possibility that pharmacological or psychological treatment might reduce risk at a future date is left to case-by-case assessment, particularly where evidence about availability of treatment in prison remains "less than comprehensive", as it was here.
The interaction between s 98 and the parole board's ultimate decision is not fully explored. The sentencing judge in Lowndes made clear that participation in treatment would be a matter for the Parole Board; the High Court does not decide whether that is the correct approach or whether the sentencing court must itself reach a concluded view on likely success of treatment.
Finally, the judgment does not address how s 98 interacts with other provisions of the Sentencing Act or with Commonwealth legislation in federal cases. Nor does it resolve the evidentiary standard and procedural fairness requirements when fresh psychiatric evidence is sought to be adduced on appeal, although it notes at [33] that additional evidence such as Dr Kay's report would only be received if error were first established and the discretion fell to be exercised afresh. These issues await further appellate clarification.
High Court of Australia Gleeson CJ Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ Lowndes v The Queen [1999] HCA 29
The Court delivered the following written judgment: -
17 June 1999 Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
(a) sentences an offender for an indictable offence to a term of imprisonment;
(c) does not make a parole eligibility order under Part 13 in respect of that term,
it may in addition to imposing the term of imprisonment for the offence (the "nominal sentence"), order the offender to be imprisoned indefinitely.
(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:
(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 conViced;
(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.
(1) A court sentencing an offender to one or more fixed terms may, if it considers that it is appropriate to do so, order that the offender be eligible for parole by making a parole eligibility order.
(2) 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.
(3) A parole eligibility order must not be made if the fixed term or the aggregate of the fixed terms is less than 12 months, except where the offender, at the date of sentence, is serving or has yet to serve a parole term imposed previously.
(4) A parole eligibility order must not be made in respect of a prescribed term.
(5) If a court decides that an offender is to be eligible for parole in respect of 2 or more of the fixed terms it imposes, it is to make a single parole eligibility order in respect of those terms.
The appellant, at the time he stood for sentence, was a single man aged forty-four. He was unemployed, and living on an invalid pension.
In argument during the sentencing proceedings the prosecutor said of the offences of which the appellant was conViced:
These are not, of their type, exceptionally serious offences and that's conceded. Some of them are at the lower end of the range of indecent dealings and the Crown would say that some of them approach the middle range.
The offences occurred between October and December 1995 when the appellant was helping out in a second-hand store. He befriended the two twelve year old male complainants when they visited the store. He offered money to one of the complainants to put on a condom in a toilet and show him that he had done so. He then entered the toilet, took the condom from the boy's penis and replaced it. He gave the boy some money. He offered the boy more money to masturbate the appellant until ejaculation. Later he again offered money to the boy to put on a condom. In relation to the other complainant, the appellant offered him money to put on a condom in a toilet and show him that he had done so. He did the same thing again, and later removed the condom from the boy's penis.
It was common ground that the appellant was a person whose sole sexual interest was in pre-pubescent boys. He is a solitary person, who suffered a seriously deprived upbringing, who had been traumatised and sexually abused in childhood, and who had been in trouble with the law on a number of previous occasions.
The sentencing judge described the previous record of the appellant as revealing "a spasmodic history of offending".
The history was set out in the judgment of Malcolm CJ in the Court of Criminal Appeal in the following terms [15] :
In the present case, it was submitted on behalf of the Crown that the respondent's record showed that he was a paedophile with a history of offending since the age of twenty years over a twenty-three-year period. Reliance was placed upon the fact that on 3 April 1973 when aged twenty he was conViced of an aggravated assault on a child and placed upon probation for a period of twelve months. This offence was of a sexual nature perpetrated against a nine-year-old boy. Reliance was also placed upon the fact that he was conViced in the Children's Court on 10 January 1978 of an offence of aggravated assault and placed upon probation for a period of three years. This was also an offence of a sexual nature perpetrated on a nine-year-old boy.
On 25 March 1980 the respondent was conViced in the Children's Court on two counts of indecent dealing with a child under the age of fourteen years. The offences were perpetrated on two boys and were in breach of the probation order made on 10 January 1978. He was then sentenced to imprisonment for eighteen months on each charge to be served cumulatively with a minimum term of six months. On 7 November 1980 he was conViced in the Supreme Court of an aggravated assault in respect of which he was sentenced to imprisonment for six months with no minimum term. There is nothing in the materials to suggest that this offence was a sexual offence. On 12 January 1990 he was conViced in the Court of Petty Sessions of indecently dealing with a male and fined $500. The age of the Victim does not appear.
On 3 May 1991 he was sentenced in the Supreme Court by Owen J on his plea of guilty to eleven counts of having unlawfully and indecently assaulted a child under the age of sixteen years and three counts of having attempted to sexually penetrate a child under the age of sixteen years.
The offences for which the appellant was being sentenced in the present case were committed shortly after the expiration of his parole in respect of the last-mentioned offences.
The appellant had spent most of his childhood in boys' homes, and foster care. His father killed his mother, in the sight of the appellant, when the appellant was aged nine, and was acquitted of murder on the ground of insanity. The appellant and his siblings were then separated and he has never seen them since. He suffered serious sexual abuse in a boys' home and elsewhere.
Bearing in mind the seriousness of the course which the Crown was inviting the sentencing judge to take, the evidence directed to the issues raised by ss 89 and 98 was less than comprehensive. Some of it was directed, in a rather inconclusive fashion, towards the possibility of pharmacological intervention to assist to control the appellant's sexual impulses, and to the question of the availability of such treatment inside and outside the prison system. There was also some evidence concerning previous attempts to assist the appellant in that respect.
The sentencing judge had before him a brief letter from a psychiatrist, Dr Carter, which, after referring to the appellant's background, said:
Peter has asked for help in controlling his sexual impulses. If he is given a custodial sentence he should undertake the Sex Offenders Treatment Program in prison. When he is no longer in custody I am prepared to supervise libido reduction treatment by weekly injections which, together with appropriate counselling and group work, will reduce the likelihood of him re-offending in future.
A forensic psychiatrist, Dr Pullela, wrote a report which said:
From the psychiatric history and assessment, it appears that Mr Lowndes has a long history of sexual offending behaviour, ie paraphilia. Personality profile indicates probable antisocial traits with impulsivity and difficulties in coping with stress. There is no evidence of any major psychiatric disorder per se.
It is my considered opinion that Mr Lowndes does not reveal any evidence of any treatable psychiatric disorder per se. The history is suggestive of a paraphiliac disorder with egosyntonsic sexual fantasies and ideation. He has antisocial traits of impulsivity and probable difficulties in coping with stress.
I would like to respectfully recommend to the court that Mr Lowndes requires a sex offender treatment program, along with sexual counselling for a significant amount of sexual abuse as a child. I would also like to respectfully recommend to the court that he requires ongoing psychological counselling, supervision and guidance in order to address issues such as social/communication skills and coping strategies. It is my considered opinion that Mr Lowndes carries a high risk of reoffending in future. If a community option is chosen, the above recommended measures should be imposed as conditions of release. Otherwise, these measures would be organised through the Department of Psychological Services, Ministry of Justice, if a custodial sentence is given.
A pre-sentence report was prepared by a forensic psychologist contracted to the Ministry of Justice, Ms Cull. She also expressed the opinion that there was a high risk of reoffending. She summarised her views as follows:
Lowndes is a socially deficient individual having very few personal assets and interpersonal strengths. The effect upon his normal emotional and psychological development of early childhood trauma and chronic abuse thereafter have been substantial with an extremely fragile psyche and ego structure resulting as a consequence. His social, emotional, psychological and sexual needs have typically been met through his association with pre-pubescent males.
Lowndes' psycho/social needs are extreme however attempts to assist him in this regard have proven fruitless to date. Lowndes is assessed as presenting an extremely high risk of reoffence with his options to reduce this risk being minimal. The possible administration of an appropriate psychopharmacological intervention aimed at reducing the level and frequency of his sexual arousal is likely to be of some value however this would serve to address only one dimension of his therapeutic needs. Medication of this nature should be prescribed in the period immediately prior to release to the community, there being no point to its administration whilst Lowndes is incarcerated. There are few, if any, avenues as yet untested through which Lowndes might gain some assistance in developing appropriate social and interpersonal skills as well as gaining an understanding of and assistance with implementing the appropriate management and control of his deviant sexual interests. Other than through participation in the intensive Sex Offender Treatment Programme, for which Lowndes is assessed as unsuitable, the availability of options to assist him in these areas within the prison system is negligible. Of primary importance given any form of intervention is the desire and determination to no longer reoffend which has not yet been demonstrated by Lowndes.
Given the Court's request that this Report consider the issues relevant to Section 98(2) of the Sentencing Act (1995), the following comments are offered in relation to the specific points contained therein. Whilst the current offences are viewed as extremely serious by their sexual nature, they are perhaps less so than previous sexual offences perpetrated by Lowndes. Lowndes is however assessed as dangerous to pre-pubescent males and as such presents a highly significant risk of reoffence. His psychological and social needs are extremely high with few options available whereby these deficiencies might be appropriately remedied. He has a lengthy history of similar offences spanning over twenty three years. Previous periods of incarceration and treatment interventions have not proven beneficial in reducing his risk to the community.
The reference to the appellant's unsuitability for participating in the sex offender treatment program in prison is explained by an earlier passage in the report of Ms Cull in which she states that the appellant had attempted to participate appropriately in such a program, but it proved to be too difficult for him, and his presence was regarded as detrimental to the progress of other participants in the program. The report of Ms Cull appears to suggest that there was a question whether pharmacological intervention would be available to the appellant in prison, except immediately prior to his contemplated release from prison. This is an issue that was not clarified in the evidence.
The learned sentencing judge made it clear that he regarded the decision as to whether to make a parole eligibility order, under s 89, as a difficult discretionary decision, especially having regard to the material which was relied upon by the Crown, both in support of an argument that an order should be made under s 98, and an argument that no order should be made under s 89. In the course of the sentencing proceedings, in a passage quoted by the Court of Criminal Appeal, his Honour said:
It was a very narrow decision as to whether he should be eligible at all I very nearly came to the conclusion that he should not be eligible at all, but in view of the recommendation for post-imprisonment treatment I thought it appropriate to make one of the sentences an eligibility [sic] so that that would be included, but it was only for that reason otherwise in terms of his offending and his danger to the community I would have thought that the law would be well-satisfied if he was not made eligible for parole, but because of the treatment aspect it seemed to me that both his interest and the interest of the community were better served by making him eligible on one [sentence] only and that was why I did it on that basis.
In his formal remarks on sentence, addressing the appellant, the judge said:
I have given consideration to the question of whether you should be eligible for parole and I accept the opinion in the pre-sentence report that you need both treatment in prison and supervision upon release. I propose to make you eligible for parole on one of the sentences so that such supervision will be available to you. You have on a previous occasion failed to complete a sex offenders course in prison. Your counsel, as I have said, has given reasons for that. Such a course is likely to significantly assist you to avoid future offending and you must, notwithstanding the difficulties, persevere
You have also through your counsel indicated your willingness to engage in psychopharmacological treatment aimed at reducing your libido. It is suggested that such treatment commence before release. Although it is a matter for the Parole Board, I would suggest it should take your participation in the sexual offenders program and your commencement of this libido depressant treatment, which you have said you are willing to undergo, into account when deciding whether to release you on parole. A failure to participate in the course and the treatment may be viewed as a lack of genuineness on your part.
It is clear that, in deciding to make a parole eligibility order, the sentencing judge gave careful consideration to the question whether, on release, the appellant would be a danger to the community. His Honour addressed the somewhat unsatisfactory evidence on the question of the availability of medication to reduce the appellant's libido and made the judgment that such treatment was most likely to be effective if administered under parole supervision. He acknowledged the risk of reoffending, but made a discretionary judgment that, in the circumstances of the case, the appellant should be granted the opportunity for rehabilitation implicit in a grant of a parole eligibility order. He understood that it would be a matter for the parole authorities to determine whether in fact a grant of parole would be made.
The leading judgment of the Court of Criminal Appeal was that of Malcolm CJ, with whom the other two members of the court agreed.
After referring to the facts and the evidence before the sentencing judge, Malcolm CJ noted that, in the appellate court, the appellant had sought to rely upon a report of a psychiatrist, Dr Kay. That report referred in particular to the possibility of treatment of the appellant by medication. Malcolm CJ expressed the view that the report did not carry the matter any further, and considered it would be inappropriate to receive the report as additional evidence "unless it [was] first determined that the discretion of the learned judge had miscarried so that it became necessary for this court to exercise the discretion anew". [16] As will appear, that was what the Court of Criminal Appeal ultimately determined, but no further reference was made in his Honour's reasons to the report of Dr Kay, presumably because of the view that it carried the matter no further.
Malcolm CJ expressed his reasons as follows [17] :
As already mentioned, I consider the critical question was whether an order should be made that the respondent be eligible for parole. So far as [the relevant grounds of appeal] are concerned, it was submitted that in making a parole eligibility order the learned sentencing judge failed to adequately take into account or give sufficient weight to the likelihood of the respondent re-offending; the history of treatment of the respondent and the likelihood that further treatment would be ineffective; the respondent's history of repeatedly committing offences in the middle range of seriousness; and the material indicating that there was little or no prospect of change in his pattern of offending. It was also submitted that the history of treatment for any psychological, psychiatric or medical condition affecting the respondent and of the previous parole order should be taken into account in determining whether to impose indefinite imprisonment. Finally, it was submitted that the material available to the learned sentencing judge indicated an extreme likelihood of re-offending and a psychological makeup that showed that to be almost inevitable, because the psychological background of the respondent indicated that treatment was unlikely to be successful.
In my opinion, having regard to the failure of the respondent to complete the sex offender treatment program in prison, the extremely pessimistic prognosis of the possibilities of treatment, the possibility that the respondent's libido may be reduced by chemical means through the administration of drugs remains speculative. There is no reason, however, why that should not be attempted from within the prison system. This would clearly be in the interests of the community. Unless such treatment is successful the evidence indicates on a balance of probabilities a high risk that the respondent will commit similar offences in the future having regard to his psychological condition. In my opinion, having regard to the assessment of the respondent and the history, I consider that it was established on the balance of probabilities that the danger to society by virtue of the risk that the offender will commit other indictable offences at the time of his release unless treatment by drugs proves successful constituted a sufficient reason not to make an order for parole and to order that, upon completion of the service of the fixed terms of imprisonment imposed, an order should be made that the offender be imprisoned indefinitely.
For these reasons I would allow the appeal, set aside the order for eligibility for parole and substitute an order that the respondent be imprisoned indefinitely.
The primary submission advanced on behalf of the appellant in this Court is that the Court of Criminal Appeal failed to identify any material error of fact or law on the part of the sentencing judge, and dealt with the matter as though it were entitled to substitute its own discretion for that of the sentencing judge, regardless of whether error had been shown. The Court of Criminal Appeal, it was said, appeared, in effect, to have proceeded as though it was entitled to intervene on the ground that it would have exercised its discretion differently from the manner in which the trial judge had exercised his.
It was also submitted for the appellant that, although the Court of Criminal Appeal accurately identified the issue for consideration as to whether the trial judge was wrong to make a parole eligibility order under s 89, it answered that question by deciding that the case warranted the making of an order under s 98.
As to the second submission, it may be accepted that Malcolm CJ expressed his reasons somewhat elliptically. In the passage quoted above, he began by reciting the arguments advanced by the Crown as to why the trial judge had erred in his decision under s 89, but did not state expressly whether he agreed with all or any of those arguments. His Honour then went on to address the issues raised by s 98. It is clear, however, that he concluded that, in the circumstances of the particular case, the considerations which led him to form the view he expressed in relation to s 98 also led him to the view that a parole eligibility order should not have been made under s 89. In the circumstances of the present case, such a process of reasoning did not of itself involve error. This submission must be rejected.
However, the primary submission made on behalf of the appellant has force. The observation that the risk that the appellant would commit other offences at the time of his release, unless treatment by drugs proved successful, "constituted a sufficient reason not to make an order for parole", and to make an order for indefinite imprisonment, inverted the question that had to be decided. The question for the Court of Criminal Appeal was not whether the sentencing judge had a sufficient reason not to make an order for parole. The question for the Court of Criminal Appeal was whether the making of an order for parole involved error of a kind warranting appellate interference with a discretionary judgment. Unless some material error of fact or law could be discerned in the reasoning of the sentencing judge, then the question for the Court of Criminal Appeal to consider was whether the circumstances of the case were such that the making of a parole eligibility order involved an implied error, or whether, in other words, the circumstances were such as to require the judge not to make an order for parole.
If, in the present case, the sentencing judge had, like the Court of Criminal Appeal, come to the conclusion that the circumstances of the case warranted a refusal to make a parole eligibility order, and called for the serious and extraordinary step of making an order under s 98, the appellant would likewise have faced the difficulty of persuading the appellate court that it was entitled to interfere in respect of the exercise of that discretionary judgment. In the present case, however, after giving consideration to the evidence, and the competing discretionary arguments, the sentencing judge decided to make an order under s 89, and thereby produced the consequence that no order could be made under s 98.
As far as appears from the reasons of Malcolm CJ, the only point of possible factual disagreement between the Court of Criminal Appeal and the sentencing judge concerned the question whether medical treatment aimed at reducing the appellant's libido was available in prison, otherwise than immediately before a proposed release on parole. In so far as there was a difference on this point, the evidence, which has been set out above, was such that it was open to the sentencing judge to reach the conclusion he formed, and there was no occasion for appellate intervention on that ground. The reasoning of Malcolm CJ identified no failure on the part of the sentencing judge to advert to any material consideration, no taking into account of any immaterial consideration, and no error on the part of the sentencing judge which justified setting aside his exercise of discretionary judgment and exercising its own discretion.
The appeal should be allowed and the Crown appeal against sentence to the Court of Criminal Appeal should be dismissed. The orders made in relation to the Crown appeal should be set aside. For reasons that are presently immaterial the Court of Criminal Appeal, without opposition from the Crown, made an order, in favour of the appellant, on his cross-appeal to that Court, backdating his sentence. There is no challenge to that order, which should stand.
The appeal should be allowed. The orders made by the Court of Criminal Appeal in relation to the Crown appeal against sentence should be set aside. The Crown appeal to the Court of Criminal Appeal of Western Australia should be dismissed.
Lowndes
The Queen
(1992) 8 WAR 387
(1990) 169 CLR 525
(1988) 165 CLR 611
(1996) 184 CLR 333
(1936) 55 CLR 499
Appeal allowed. Orders of the Court of Criminal Appeal in relation to the Crown appeal against sentence set aside and the Crown appeal dismissed. The sentencing judge's parole eligibility order restored.