Court of Appeal (WA)|2005-12-22|Before: Wheeler JA

McGarry v The State of Western Australia [2005] WASCA 252 (22 December 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : McGARRY -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 252

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : R -v- McGARRY [2004] WADC 223

File No : IND 1242 of 2003, IND 274 of 2004

Criminal law - Appeal against sentence - Eligibility for parole - Indefinite imprisonment under s 98 Sentencing Act 1995 - Constitutional validity - Kable principle - Matters the Court may have regard to in ordering indefinite imprisonment - Whether offences of "exceptional seriousness"

Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 18

Collett v The State of Western Australia [2004] WASCA 59

Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 78 ALJR 1519

Hellings v The Queen [2003] WASCA 208

Kable v The Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51

Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121

Messiha v Royce [2004] WASCA 87

Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631

R v McGarry [2004] WADC 223

Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656

Anderson v The Queen (1996) 18 WAR 244

Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611

R v Moffatt [1998] 2 VR 229

Regina (Giles) v Parole Board [2003] UKHL 42; [2004] 1 AC 1

Samuels v Songaila (1977) 16 SASR 397

Silbert v Director of Public Prosecutions for the State of Western Australia [2004] HCA 9; (2004) 217 CLR 181

Yanko v The Queen [2004] WASCA 37

1 The appellant was convicted on his own plea in the District Court on two indictments. Indictment 274 of 2004 contained one count of unlawful detention, one of indecent assault, and one of indecent dealing, all relating to the same complainant. In respect of those offences, having made the adjustments necessary by reason of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("the Amendment Act"), his Honour the learned sentencing Judge imposed terms of 3 years, 2 years and 2 years respectively, all to be served concurrently. Indictment 1242 of 2003 related to indecent dealing in relation to another complainant, and for that offence there was a term of 1 year 24 days imposed. A slightly odd feature of that sentence is that his Honour started at a term of 2 years, prior to the transitional provisions. The one-third reduction would have resulted in a term of 1 years and 4 months. However, no issue is taken by either party with the calculation. This term was to be imposed cumulatively on the others, giving a total of 4 years and 24 days. The sentence was backdated to 10 December 2003, to account for time the appellant had spent in custody for the offences.

2 The appellant was not made eligible for parole and, in addition to the nominal sentence, was imprisoned indefinitely pursuant to s 98 of the Sentencing Act 1995 (WA). The appellant takes no issue with the nominal sentences, but contends that he should have been made eligible for parole, and that the learned sentencing Judge erred in imposing a sentence of indefinite imprisonment. He challenges the constitutional validity of s 98 of the Sentencing Act 1995 and s 27 of the Sentence Administration Act 2003 (WA) ("the SA Act").

3 It is convenient to deal with the constitutional issues first. It is generally desirable to avoid the determination of a constitutional issue unless necessary: see Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 642, per Mason P, and the cases there cited. However, if the appellant succeeded on other grounds (except for that relating to parole), it would be necessary for a Court sentencing him afresh to consider whether indefinite imprisonment was appropriate, so the constitutional issue would remain a live one.

4 The grounds of invalidity are said to be that the power invested in the Supreme and District Courts pursuant to s 98 of the Sentencing Act 1995, and the powers invested in the Governor pursuant to s 27 of the SA Act:

"(a) are repugnant to, or incompatible with, the exercise of federal judicial power of the Commonwealth, and with the role and function of the Supreme Court and the District Court;

(b) have the tendency to undermine and compromise public confidence in the institutional integrity, independence and impartiality of the State Supreme Court and State District Court; and

(c) are in violation of Chapter III of the Commonwealth Constitution in requiring the State Courts to act contrary to accepted notions of judicial power."

5 Particulars of invalidity are provided. These are:

"(a) Under the provisions of the Sentence Administration Act the Executive and not the Judiciary exercises the power to set the length, and to determine the cessation of, an indefinite term of imprisonment (ss.12, 18 and 27 of the Sentence Administration Act).

(b) There is no provision under the Sentencing Act or the Sentence Administration Act for judicial review of a sentence of indefinite imprisonment.

(c) In exercising executive power the Governor may not make a parole order to release a prisoner unless a report has been given to the Minister by the Parole Board (s.27(3) of the Sentence Administration Act)

(d) Although the Parole Board must recommend to the Minister, at stipulated times, whether or not the Governor should be advised by the Minister to release the prisoner (s.18(2) of the Sentence Administration Act), there is no corresponding duty upon the Minister to advise the Governor at any time to release any prisoner serving an indefinite term, regardless of whether the Parole Board has recommended the prisoner for release.

(e) The rules of natural justice (including the duty of procedural fairness) do not apply to the doing of any act by the Governor, Minister or Parole Board under Parts 2 to 6 of the Sentence Administration Act (which provisions include ss.12, 18 and 27 of the Sentence Administration Act) (s.115 of the Sentence Administration Act).

(f) There is no requirement to give reasons for a decision to a person serving a term of indefinite imprisonment if it is decided that it is in the interest of the prisoner or anyone else to withhold reasons (s.114(2) of the Sentence Administration Act).

(g) There is no precise and rigorous criteria for the making of an order under s.98 of the Sentencing Act."

6 It can be seen that almost the whole of the basis of invalidity is said to result from what the Executive Government can do, and need not to do, pursuant to the provisions of the SA Act, and not from anything which the Court is either required or permitted to do. Only particular (g) appears to have any connection with the function of the Court.

7 Before turning to the detail of the appellant's argument, it is convenient to set out the statutory framework. Section 98 of the Sentencing Act 1995 is as follows:

"98. Indefinite imprisonment: superior court may impose

(1) If a superior court -

(a) sentences an offender for an indictable offence to a term of imprisonment;

(b) does not suspend that imprisonment; and

(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:

(a) the exceptional seriousness of the offence;

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

(c) the character of the offender and in particular -

(i) any psychological, psychiatric or medical condition affecting the offender;

(ii) the number and seriousness of other offences of which the offender has been convicted;

(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."

8 By reason of s 100 of the Sentencing Act 1995, a sentence of indefinite imprisonment begins on the day when the offender would, but for that sentence, be eligible for release. Section 101 provides that a prisoner sentenced to indefinite imprisonment may be released, at any time after the sentence of indefinite imprisonment begins, by means of a parole order made under Pt 3 of the SA Act. The Minister may, in writing, request from the Parole Board a report on a person in custody at any time (s 12(2) SA Act) which expression includes a report on a person sentenced to indefinite imprisonment (s 12(1) SA Act). The Board must then give the Minister a report and such a report must recommend whether or not the Governor should be advised to release the person (s 12 and s 14 SA Act). A parole order may not be made by the Governor unless a report about the prisoner has been given by the Board to the Minister pursuant to s 12 or s 18 (s 27 SA Act).

9 If the Minister does not initiate a request for a report, the Board must give the Minister a report in any event one year after the indefinite term commences and, if the prisoner is not released, every three years thereafter (s 18 SA Act). In deciding whether to release any prisoner on parole, consideration is to be given to a broad range of matters set out in s 16 of the SA Act. The rules of natural justice, including any duty of procedural fairness, do not apply in relation to things done by the Governor, Minister or Parole Board in relation to reports under s 12 and s 18, or in relation to the Governor's power to release pursuant to s 17 (s 115 SA Act).

10 The position relating to indefinite imprisonment in Western Australia is, then, broadly assimilated to the position of prisoners serving life imprisonment terms, once the minimum period fixed by the Court has expired. That is, it is for the Executive to determine whether the prisoner should be released. In relation to prisoners serving terms of life imprisonment, the decision is made by the Minister, advised by the Parole Board (but not bound by the advice).

11 In relation to prisoners eligible for parole who are not subject to life terms or indefinite imprisonment, the decision is made by the Parole Board.

12 In respect of those prisoners not serving life or indefinite terms, the Court, at the time of sentencing, fixes the outer limit of the period which the person will be required to serve in prison.

13 The appellant notes that in the other State jurisdictions, and the Northern Territory, where there is provision for terms of indefinite imprisonment, there are varying provisions permitting the various Supreme Courts to review those sentences from time to time. In New South Wales, the Habitual Criminals Act 1957 (NSW) gives the Court a power to fix an additional specified sentence for habitual offenders, but there is no general power to impose indefinite sentences.

14 Apart from the allegation that s 98 of the Sentencing Act 1995 lacks "precise and rigorous criteria", the challenge is not then to s 98 itself, but to s 98 as part of a legislative scheme. That scheme is said to offend the principle enunciated in Kable v The Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51. That principle has been considered relatively recently by the High Court, in relation to Queensland legislation which bears some similarities to s 98. It is convenient to commence with an examination of that case, which is Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 78 ALJR 1519.

15 Fardon concerned s 8 and s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ("the Queensland Act"). The Kable principle was identified in substantially the same terms in each of the judgments. Gleeson CJ, at [15], said that the principle was that State legislation "which purports to confer upon such a Court [that is, a State Supreme Court] a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid". His Honour referred also, at [23], to the references in some of the reasons in Kable to the capacity of the legislation there in question to diminish public confidence in the judiciary. He pointed out that those references were in the context of a statute held to impair the institutional integrity of a Court and to involve it in an ad hominem exercise. His Honour pointed out that nothing said in Kable meant that a Court's opinion of its own standing was a criterion of validity.

16 Similarly, McHugh J, at [32], described the finding of the majority justices in Kable as being that State legislation cannot confer jurisdiction or powers on the State Courts that compromise their integrity as Courts exercising federal jurisdiction. His Honour, at [35], considered as a question relevant to whether the institutional integrity of the Court was compromised, whether anything in the legislation might lead a reasonable person to conclude that the Supreme Court, when exercising federal jurisdiction, "might not be an impartial tribunal free of governmental or legislative influence". His Honour, also in that context, pointed out that the personal views of Judges as to what was appropriate would not be relevant (at [42]).

17 Gummow J, at [66], formulated the relevant question as being whether the Queensland Act conferred jurisdiction "which is repugnant to, or incompatible with, [the Supreme Court's] character under the Constitution of a state court available for investment with federal jurisdiction". Hayne J generally agreed with Gummow J.

18 Kirby J identified the relevant principle as being that State Courts cannot be required by State law to perform functions inconsistent with, or "repugnant to" Ch III of the Commonwealth Constitution (at [137]). His Honour noted that the maintenance of community confidence in the integrity of the Courts was relevant, but was not a criterion for the application of the Kable principle (at [144]).

19 Callinan and Heydon JJ noted, at [213], that the Justices in the majority in Kable used differing formulations, but that all of them referred, in stating the relevant principles, to institutional integrity or public confidence or both. Their Honours did not, it seems, consider it necessary to formulate the principle with any greater precision, having regard to the view which they took about the Queensland legislation.

20 In a number of the judgments in Fardon, there are quite detailed lists setting out the features of the Queensland legislation which either distinguish it from the legislation in question in Kable, or demonstrate its similarity to, and compatibility with, the usual form of judicial process. The majority of those features are shared by s 98 of the Sentencing Act 1995. It is not ad hominem, but general legislation; the burden of proof is cast upon the person asserting that indefinite imprisonment should be imposed; the Court has a discretion whether or not to make the order; the question of whether the order should be made is determined at an open hearing, upon material disclosed to the offender, and at which the Court acts only upon evidence. There is an ability to appeal (formerly as of right, pursuant to s 688(a) of the Criminal Code (WA); since May 2005, by leave pursuant to the Criminal Appeals Act 2004 (WA)). The object of the legislation is to protect the community in particular circumstances, and not to punish the offender. This list is drawn from the reasons of Gleeson CJ at [19], McHugh J at [34], Gummow J at [69] and [90] - [109], and Callinan and Heydon JJ at [219] - [233].

21 One of the differences between s 98 of the Sentencing Act 1995 and the Queensland Act is that s 98 assimilates more closely to the traditional judicial process. It was pointed out in Fardon that the legislation there in question was not in truth part of the sentencing process, but was a sui generis regime, the application being made in relation to a person who was already serving a term of imprisonment. The fact that there was a connection between the operation of the Queensland Act and anterior conviction by the usual judicial processes was a matter of importance, particularly it seems to Gummow J (see [106]; see also Kirby J at [165]). So far as s 98 is concerned, the indefinite term is imposed at the time of sentencing for an offence, and as part of that sentence, albeit that there are distinctive criteria set out in s 98 for the imposition of such a term, and that there was a separate and distinct right of appeal from the imposition of such a term (as opposed to the right which any prisoner has in respect of any other sentence to seek leave to appeal against sentence). The analysis in the reasons of Gummow J, at [68] - [89], leads to the conclusion that, not only are provisions such as s 98 not repugnant to the integrity of State Courts so as to offend the Kable principle, but they are so closely allied to traditional sentencing functions that it is possible (depending, of course, upon the precise terms of the provision in each case) that they are functions of a kind which may be able to be conferred upon Ch III Courts under the Constitution. That question, of course, does not arise in the present case.

22 To the extent that it resembles the Queensland Act, Fardon is, of course, authority for the proposition that s 98 is constitutionally valid. However, the appellant submits that there are two significant respects in which s 98, either alone or as part of the relevant statutory scheme, is distinguishable from the Queensland Act. The first basis is that there is no "sufficiently precise standard" prescribed by s 98 (see Fardon per McHugh J at [34], Gummow J at [97] - [98] and Callinan and Heydon JJ at [225]).

23 It is correct to say that there was a more detailed list of matters prescribed in s 23 of the Queensland Act, to which the Court was to have regard in determining whether a continuing detention order could be made, than are prescribed by s 98 of the Sentencing Act 1995. However, in my view, it is possible to derive from s 98(2) a sufficient indication of the sorts of matters to which the Court must have regard, and the degree of satisfaction which the Court must reach, to conclude that it prescribes a standard of sufficient precision for a Court to be able to apply it as part of the judicial process.

24 Looking first to s 98(2), without reference to authority, one can see the overarching consideration that the order must not be made unless the Court is satisfied that, at a time which is indicated with precision (the time when the offender would otherwise be released), he or she would be a danger to society, or part of it. Although the satisfaction is on the balance of probabilities, the gravity of the decision dictates that the Court will not be satisfied by some slight preponderance of evidence, but that the danger must be convincingly demonstrated.

25 The criterion of a "danger to society, or part of it" is, it is true, broadly expressed and not without difficulty (McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 at [20]). However, the type of danger contemplated is indicated by the various paragraphs of s 98(2).

26 Paragraph (a) refers to the "exceptional seriousness" of the offence; that is, the offence for which the offender is being dealt with at the time at which indefinite imprisonment arises. It appears to contemplate that there may be offences of such seriousness that the commission of a single such offence will, of itself, indicate that the offender is a danger to society requiring indefinite imprisonment. It is unlikely that this criterion will often be decisive, standing alone. It is more likely that it will fall to be considered together with some of the other matters referred to in s 98(2). However, the legislature has deliberately indicated that it is open to the Court to determine that the relevant danger exists based upon a single offence alone. Clearly, the word "exceptional" in that context is intended to mean something more than merely uncommon, or something which is a serious example of an offence of its type, but is looking to an offence which, having regard to the whole scale of offending within the experience of the Courts (including those examples of very serious offending which are encountered from time to time) is to be described as "exceptional". That is, I think, what was indicated by the High Court in McGarry, at [18], where it was said that the expression "exceptional seriousness" in that paragraph was to be understood "as requiring reference to some general scale of criminality".

27 Paragraph (b) refers to a risk that the offender will commit other indictable offences. Two things may be noted about that. First, it is not a risk of any offending which will suffice. Although the Court is not required to identify what particular offence or offences the offender is likely to commit (and in many cases, one would expect that there would be a range of probable offending), it must be sufficiently satisfied of the nature of the likely offending to be able to form a view that the offences will be indictable ones. Further, satisfaction that one other indictable offence, at some time, may be committed is plainly not enough. It is a risk that the offender "will" (not may) commit indictable offences, in the plural. The type of indictable offences to which the subsection directs attention are to be ascertained from its context. That context includes the nature of the order which will be made once the Court reaches the required degree of satisfaction, together with indications of the nature of the task which are to be derived from the statutory language, including the reference to "other exceptional circumstances" in par (d).

28 Paragraph (c) directs attention to the personality of the offender, including psychological, psychiatric or medical conditions and the number and seriousness of other offences of which the offender has been convicted. The inquiry in that case will involve the question of whether there is anything in the psychological, psychiatric or medical reports, or in the offender's criminal history, examined in detail, which indicates that the offender is likely to engage in conduct, the consequences of which could be "grave" or "serious" for society as a whole, or a part of it (see McGarry, at [23]).

29 Paragraph (d) takes its colour, of course, from the section as a whole. The other circumstances must, as I have noted, be "exceptional". It seems unlikely that there will be a case in which par (d) alone is engaged. However, one can envisage cases in which there might be room for argument about whether a matter fell squarely within one of the other subsections, but where there was, nevertheless, a very high degree of probable dangerousness demonstrated. An example might perhaps be found in stalking cases, in which the pattern is frequently one of the commission of a very large number of minor offences, but in which the danger, for either the current object of the offender's attentions or any future person with whom the offender may become involved, takes two forms. The first is that a campaign of hourly and daily harassment, over a long period of time, will effectively destroy any chance of a normal life for the victims; and second that the conduct will escalate, with a real risk of the commission of an offence such as grievous bodily harm or murder (which offences are often expressly or obliquely threatened; see, for example, Hellings v The Queen [2003] WASCA 208).

30 As noted in Fardon, the yardstick of "unacceptable risk" is one with which the Courts are not unfamiliar (Callinan and Heydon JJ at [225], citing M v M [1988] HCA 68; (1988) 166 CLR 69). The discretion to make an order based upon an assessment that there is relevant danger is confined in the way which I have described by reference to the factors in s 98(2). The question of whether s 98 provides sufficiently precise criteria, capable of application by a Court, was not directly raised in McGarry. However, the conclusion which I have reached, which is that those criteria are sufficiently precise to admit of their application by a Court, is fortified by McGarry, since the High Court clearly took the view that it was possible in that case to determine whether the order there made had been made appropriately in conformity with s 98, and the Court was able to explain, particularly at [22] - [25], the way in which the section was intended to operate.

31 The greater part of the appellant's constitutional challenge, however, rests upon the provisions of the SA Act which provide for the release of offenders subject to indefinite imprisonment not by the Courts, but by the Executive. At a superficial level, the answer to this contention is simply that Kable is concerned not with what the Executive can and cannot do, but with what powers can be conferred upon Courts. Further, even if it were submitted that the function is not an appropriate one for the Executive, the State Constitutions, of course, do not embody a separation of powers, so that there is no Constitutional principle precluding the exercise of such power by the Executive: see Kable per Brennan CJ at [67], Dawson J at [78], Toohey J at [92] - [94], Gaudron J at [103] - [104], McHugh J at [109] - [110] and Gummow J at [132]; also Fardon per Gleeson CJ at [10], McHugh J at [40] and Gummow J at [86].

32 However, as I understand it, the appellant submits that because the Kable principle is concerned with the institutional integrity of the Courts, or public confidence in them as appropriate vehicles for the exercise of Federal judicial power, or both, it is an offence against that principle to enact a scheme, the effect of which may be perceived as Courts, in effect, "washing their hands" of an offender and handing the offender over to the Executive for indefinite imprisonment. The arguments put forward by the appellant are in the end, however, no more than objections to the policy of the legislation. Further, they are premised on the assumption that the Executive will, or may, act improperly.

33 On the face of the legislative scheme itself, it is plain that the decision to impose the sentence of indefinite imprisonment is one which is made by the Court after a hearing, based upon defined criteria. It is equally clear that the decision to release or not release the offender is then one for the Executive. It is difficult to see how any reasonably well informed member of the public would form the view that, as the appellant puts it, the effect of the scheme is to borrow the reputation of the Courts by the political branch "to cloak their work in the neutral colours of judicial action" (Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 392 per Gummow J). Rather, the two functions are clearly distinct.

34 Even if it were appropriate to have regard to policy considerations, for the purpose of considering whether it was possible that the public perception of the integrity of the Courts would be damaged by the participation of the Courts in a scheme which left a decision for the release of an offender to the Executive, it has to be said that both history and logic dictate that the policy considerations are not all one way. Plainly, it is the usual role of the Executive in all Australian jurisdictions to consider, in at least some circumstances, when an offender should be released. In most Australian jurisdictions, most of the time, there is provision for the ordering by Courts of eligibility for parole.

35 The decision whether a prisoner is to be released on parole is then one for either the responsible Minister (eg, Crimes Act 1914 (Cth), s 19AL), the Governor (Correctional Services Act 1982 (SA), s 67 - life terms) or, more commonly in modern legislation, a specialist Parole Board or similar body. It is true that by fixing the "head sentence", the Court dictates the outer limit of the period of imprisonment; however, there is often scope for a very considerable discretion, often within a period which may extend over a number of years, for the Executive to determine whether or not a person should remain imprisoned. Where the "outer limit" is a sentence of life imprisonment, as it is for some serious offences, there is no practical difference from indefinite imprisonment (save that in some instances the Court has no discretion not to impose a life sentence: for example, s 282 Criminal Code (WA)).

36 Apparently, then, it has long been accepted in Australian jurisdictions that the function of determining whether an offender has reached a point at which it is appropriate to release him or her into the community, is one which is properly exercisable by the Executive. There are valid reasons for entrusting that decision to the Executive, rather than the courts. The courts are not treatment institutions. Community protection is, of course, one of the objectives of sentencing, and is a factor which the courts are accustomed to take into account. However, the making of detailed assessments concerning the question of whether, having regard to everything which is known about an offender's treatment, response to treatment, conduct while in prison and matters of that kind, it is appropriate for a person to be released into the community, is arguably a function better performed by a body with appropriate expertise or by a Minister ultimately accountable to Parliament (and, hence, to the community) on the advice of such a body.

37 It is not, in my view, appropriate for a Court to assume, in considering the validity of legislation, that a Minister would, in effect, refuse to recommend release, where release was appropriate, for "no other reason than to gratify public clamour against release of a member of an 'unpopular minority'", as the appellant submits. That would be improper, but I would not be prepared to consider the Constitutional validity of legislation on the assumption that the Executive will behave improperly. It is, I think, open to recognise that public pressure may have a role, and that there may, in some cases, be a greater caution displayed by the Executive than the facts perhaps would warrant.

38 That would suggest that, as a matter of policy, some role for the courts would be desirable. As a matter of policy, however, there is also potentially a danger in a scheme of indefinite imprisonment which then provides for regular judicial review. That danger is one of "net widening". I understand that expression to mean that, where a sentencing option appears to be relatively benign, there may be an unconscious tendency of sentencing Judges to impose that penalty where it is not really warranted. That phenomenon is recognised in s 76(2) of the Sentencing Act 1995, which is to the effect that a sentence of suspended imprisonment may not be imposed unless the Court has determined that if the option to suspend were not available, the Court would have imposed a term of immediate imprisonment. One can see similarly that, where an offender appears to pose a risk to the community, the knowledge that there was review of that offender's imprisonment available at some future time might lead to a greater use of indefinite sentences than would probably occur if, as is presently the case, the sentence must be imposed without the Court having any control over the ultimate release date.

39 I do not intend, in this discussion, to suggest that the scheme in operation in Western Australia is either better or worse, as a matter of policy, than schemes apparently in operation elsewhere. The only purpose of the discussion is to explain why, in my view, it cannot be said, as the appellant appears to suggest, that the fact that the discretion to release or not to release is one for the Executive is so alien to the sentencing process, as a matter of either history or policy, as to suggest that the making of an order which has the result that that discretion is enlivened, is damaging to the institutional integrity of the Court.

40 Finally, I note that the appellant relies also upon Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, for the proposition that it is not open to the legislature to remove from the Court the jurisdiction to order that a person be released from custody. That case, of course, was concerned with Ch III Courts and is authority for the proposition that Ch III of the Constitution exhaustively sets out the manner in which the judicial power of the Commonwealth may be vested. It is not open to Parliament to vest in the Executive any of the judicial powers of the Commonwealth. That case is distinguishable on a number of bases. As I have noted above, it rests upon a notion of separation of powers which is not a feature of State Constitutions. In any event, the legislation there in question expressly provided that a Court was not to order the release from custody of a person. Nothing in s 98, or in the legislative scheme which I have described, purports to remove from the Courts, or to vest in the Executive, the power to determine whether a person is unlawfully imprisoned. I would not uphold the appellant's challenge to the constitutional validity of s 98. I turn now to the appellant's antecedents and to the prior offences.

The appellant's criminal history and former treatment

41 The appellant's previous offending is summarised in some detail at [4] - [21] of the reasons of the learned sentencing Judge which are to be found in R v McGarry [2004] WADC 223. I do not intend to repeat all that material. However, it is desirable to give a brief overview of that material in these reasons. Further, there are one or two matters which I consider to be relevant which do not appear to emerge from his Honour's reasons and to which it is desirable to refer.

42 The appellant's first recorded offences commenced in 1985, when he was in his early 20s. He has, over the period between 1985 and 1991, been convicted of 12 offences of the loitering/wilful exposure/evil designs variety. Details of all of those offences were found in a book of materials, which was provided to his Honour, copies of which were provided to us. The appellant would, on occasions, watch women in the shower, or loiter outside primary schools, or stand outside women's houses and attract their attention. He also apparently took advantage of chance encounters in public places. Generally, once a woman or girl's attention was attracted, he would begin masturbating. Some of the victims of the exposure offences were adult women and some were quite young, around 12 and 14 years of age. The offences were committed in a variety of places, as I have noted: for example, in the street, on the curtilage of private property and at Fremantle fishing boat harbour.

43 In his record of interview in relation to many of these offences, he agreed that he realised that the girls and women seeing him would be shocked or offended. He said, "I know that when I do it they get offended by what I do but it gets me excited ... ".

44 In 1989 and 1990, he committed a number of offences of aggravated indecent assault, aggravated sexual assault and wilful exposure in relation to the two young daughters of his then de facto partner, who were then approximately 8 and 10 years old respectively. Those offences involved fondling, digital penetration, exposing himself to the child, requiring the child to touch his penis, and masturbating. He would show the older child Playboy magazines. It was not clear how many times he accepted that offences of this kind occurred. The older girl said that offences of that type happened every day, except at the weekends.

45 In relation to the very earliest offences, the appellant readily admitted the offences. He did not then require much persuasion before giving a record of interview. In relation to the daughters of his de facto, his initial response to questioning was to deny the offences, and then to ask if the matter could be "sorted out" if he moved out of the house and got some help. He then, however, admitted the offences, although when one puts what he said against the statement of the older complainant, there is an impression of minimisation of the offending. It is to be noted that his offending against the older daughter continued, even though she told him to stop on numerous occasions. She told her mother, who told the appellant that if he did not stop, she would "pack his clothes" and this, it appears, also did not stop him. It was only when the older daughter reported the matter to someone at the school and the police became involved, that the offending ceased.

46 In relation to the offences against the daughters of his de facto wife, he was seen by a psychiatrist in the latter part of 1990. There are a number of matters worth noting about that psychiatric report. The psychiatrist was first consulted by the appellant's de facto who, the psychiatrist noted, "had gone to a great deal of trouble to try and get somebody to see him for his sexual problems". The appellant, by contrast, was said to have come to see the psychiatrist "essentially for a psychiatric report to give to the court". He attended the psychiatrist "rather irregularly".

47 The psychiatrist discussed with him the use of anti-androgen tablets, which was medication which could be used to reduce the sex drive. The appellant felt that there was "no sense" in starting that medication at that time, and said he would first see what the outcome was of the court action. He said, however, that he was prepared to use it in the future. The appellant agreed he had a sexual problem, but also that he had not sought help for it "without some duress". It is particularly important to note this matter, since a recurring theme of later psychiatric reports, including the most recent ones, has been that the appellant is prepared to consider the use of medication. Despite having known for some 15 years now, however, that it is available and could be of assistance, he has never actually used it. To this day, he displays a reluctance to do so.

48 The appellant then committed offences of indecent dealing against his own natural daughter, who was 12 years of age at the time. In 1996, he was released on parole in relation to those offences.

49 He then committed further offences of indecent dealing in relation to an 11-year-old child. The circumstances of this offence involved the targeting of a particular child for the appellant's sexual gratification, and the repeated targeting of the child. The complainant was 11, and her photograph, together with that of other children from the local primary school had appeared in a local newspaper. The appellant searched for entries having the same name as the complainant in the telephone directory, and found her house. He went to that house and kept it under surveillance for some time. On 18 December 1997, the complainant was at home with other children and with an 18-year-old cousin, who was taking care of them while their parents were away. He attracted attention by tapping on the window, and when he saw a young girl look out, he masturbated. On 24 December 1997, he telephoned, pretending to be a police officer. When the complainant answered, he had a conversation with her about what she thought the man may have been doing. He said to her that "the man" had been masturbating and had also watched her have a shower.

50 There was then a trace put on the telephone. A little over a week later, he telephoned again, but hung up when the girl who answered said that she would get her mother. He had, of course, intended to have a similar conversation with her. He was connected to the offence by means of the trace on the telephone.

51 At his sentencing for these offences, in letters tendered to the Court by the appellant and by his then de facto wife (not the woman against whose daughters he had earlier offended), it was asserted that much had changed in the appellant's life. He was attending Sexaholics Anonymous and did so twice weekly for some months. He was confident of not reoffending. A social worker in the Sex Offender Treatment Unit assessed him, having discussions with the appellant, his de facto, his Community Corrections Officer, and his sister. The appellant reported to the social worker that he had been shop-lifting and peeping on his sisters while they were showering or dressing from approximately 11 years of age. His sister agreed with this. The social worker noted that he was sorry that he had committed the offences, but that that appeared to be more to do with the consequences which he faced, rather than actual remorse. The appellant felt that he had "gained much useful information" regarding himself and his sexual offending within the sex offender treatment groups he had attended, but that they had not addressed the addictive or compulsive nature of his behaviour. She suggested that it might be useful to "revisit" the possibility of medical assistance, which she said had apparently been raised previously.

52 It is to be noted that, although the appellant participated in a record of interview in which he admitted the offending, it is not easy to see how he could have denied, in broad terms, the nature of the offences, given the trace to his telephone number. He did, during the course of his interview, say on a number of occasions that there were matters that he did not wish to elaborate on, such as why he had gone to the trouble of matching up the complainant's photograph with her address. In court, his counsel advised the sentencing Judge that this was because he wished first to make a "clean breast" to his Community Corrections Officer.

53 The appellant was released to parole on 12 September 2001. By this time, he had twice, while imprisoned, undergone the Sex Offenders' Treatment Programme. While on parole, he committed the two offences for which the present sentence was imposed.

54 The facts relating to the present offences are set out in some detail in the reasons of the learned sentencing Judge. For the sake of completeness, it is desirable to set out that summary in full, from [4] - [6] of the reasons of the learned sentencing Judge:

"4 The three offences in indictment numbered 274 of 2004 to which the offender pleaded guilty were committed on 16 April 2002 in the suburb of Bull Creek. Between 8.30 am and 8.45 am on that date the complainant, a 14 year old school girl, walked to the School from her home. She walked along a path in an area of dense bush adjacent to All Saints College. At the time she was wearing a yellow raincoat with a hood, her school shirt, black school pants and white joggers. As she was walking along the path she felt someone grab her around the waist and put a hand over her mouth. She heard a male telling her to come with him and keep quiet. She was then dragged several metres into the bush on the side of the path before being pushed forward which caused her to fall face down onto the ground. Her assailant then rolled her over and threw her backpack into the bush next to her. Immediately having done that he wrapped a woollen jumper over her face to prevent her seeing him. At the time she was lying on her back and he ripped her joggers off her feet before throwing them into the bush. While still on her back he ripped the front of her raincoat open, grabbed the front of her school shirt and ripped that open as well. At this point the complainant screamed at her assailant asking him what he was doing and who he was. He did not answer and she screamed for help as loudly as she could. Her assailant then fondled her breasts roughly over her bra before pulling her pants down and throwing them onto the ground next to her. He then ripped her underwear off exposing her genital area. Kneeling to the side of her he then asked her what he had in his clenched fist. The complainant, who still had the jumper wrapped around her face, told him she was unable to see what he had. This short conversation was followed by a period of silence. The complainant did not know what her assailant was doing but was able to see his outline still kneeling next to her. The prosecution alleged that the assailant masturbated to the point of ejaculation.

5 After this short period of silence the assailant asked the complainant whether she had any money and she replied she did not. He then searched her backpack and she remained on the ground motionless. Having searched the backpack he told her to close her eyes. He removed the jumper from around her face and replaced it immediately with her school pants which he put over her head. He then told her he would be back in a minute and left her lying on her back with her pants over her face. After a few moments the complainant got up, retrieved her clothes and dressed. As she was getting dressed she saw a person riding past on a bicycle. She then saw a friend walking along a pathway and called for help. She was taken to the school office where she remained until the police were called. She was subsequently seen by a medical practitioner. She sustained cuts and scratches on both her arms as a consequence of this assault.

Indictment 1242 of 2003

6 This offence occurred when the complainant, a female child who was then aged eight went to the park opposite her home in Palmyra on the afternoon of 12 March 2003. At the time she was wearing her school uniform which consisted of a red top, shorts and a navy blue skirt. Having played in the park she decided to walk home and on crossing the road saw a man coming around the corner. This person approached her on the footpath, walked up to her and asked her age. She told him she was eight and that her birthday was on Tuesday. The man then said he would give her $10 if she showed him her underwear. He added that he was a counsellor and that was part of his job. Realising the situation she was in the child screamed loudly and began crying. Her assailant told her that he would go. The complainant then ran up the street to her friend's house and was subsequently taken home."

55 It is desirable to note some other matters. One is that it appears that the appellant had gone to the area involved in indictment 274 of 2004 some time previously, in effect "casing it". For that offence, he was identified by DNA matching. He declined to participate in a video-taped record of interview in relation to that offence. In relation to the 8-year-old child, the appellant was located by police officers a short time after the offence driving the same rather distinctive vehicle, with trailer, which had been described by the complainant's mother.

56 The preceding discussion is suggestive of an increasing reluctance on the part of the appellant to confess promptly and fully, when asked about his offending. There seems to be increased premeditation in relation to some offences. These matters seem to me to be relevant to an evaluation of the predictions made about his future conduct, to which I turn later.

57 His Honour turned first to consider the question of parole. Of course, it was necessary for his Honour to consider the question of eligibility for parole before he considered whether there should be an order pursuant to s 98 of the Sentencing Act 1995, since one of the preconditions of such an order is that no parole eligibility order is made (s 98(1)(c)). There may be a substantial degree of commonality between the facts relevant to the discretionary considerations arising under s 89 and s 98, but the requirements of each section, when they arise for consideration, must be determined separately (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 670).

58 His Honour acknowledged that the availability of a treatment programme, which had not been available to the appellant in the past (being apparently a reference to one-on-one counselling which would be made available) and which carried with it a prospect of success, was a factor that ought to be taken into account in the exercise of the discretion. However, his Honour's conclusion at [43] was that, "Everything in this case points against the making of a parole eligibility order". His Honour said that the first three factors mentioned in s 89(4) of the Sentencing Act 1995 were satisfied. Those factors are as follows:

"(4) A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors 

(a) the offence is serious;

(b) the offender has a significant criminal record;

(c) the offender, when released from custody under a release order made previously, did not comply with the order;

(d) any other reason the court considers relevant."

" ... there is a compelling need to protect the community from the offender and this requirement is likely to be jeopardised if parole eligibility is ordered and the offender is released upon completion of the non-parole component of the sentences imposed upon him." (emphasis supplied, at [43])

60 The appellant points out that, when he later turned to consider the question of indefinite imprisonment, his Honour concluded that the offender's condition was treatable and that treatment required an extended custody-based biological and psychological treatment programme, together with compulsory post-release treatment and monitoring (at [58]). It is submitted that his Honour's apparent finding, at that point, that compulsory post-release treatment was necessary in order to ensure protection of the community, was not consistent with his conclusion in relation to parole. However, it is to be noted that, in discussing the question of the necessary duration of custodial treatment, his Honour referred, at [55], to the five years of custodial treatment which Dr Srna thought was necessary and the one to three years' treatment in custody estimated by the psychologist, Mr Merriman. (I would add that the psychologist, Ms Zuin, considered that he needed individual psychological treatment, apparently in custody, for "at least" two to three years, followed by possibly a group programme, again apparently in custody.)

61 The key to his Honour's finding (at [43]), in relation to parole, appears to lie in his Honour's finding about the danger which the appellant would pose to the community at the time of completion of the non-parole component of the sentences imposed upon him. That is plainly a very important consideration, and it was open to his Honour to regard as decisive.

62 As was recognised in Lowndes, there will, of course, be cases in which, despite the possibility of reoffending, the need to ensure that an offender has treatment in the community is such that the community interest is best served, despite that risk, in making an order for eligibility for parole. That will depend upon the risk perceived, and the treatment needs that may exist, in the particular case. His Honour appears to have been alive to those considerations, since he referred to the availability of treatment as being a factor which it was appropriate for him to take into account.

63 Were it not for the ambiguity, which I later identify, in his Honour's reasons at [58], which concerns the relationship between parole eligibility and treatment, I would have considered that his Honour's conclusion in relation to parole was not open to criticism. However, for the reasons given later in relation to that paragraph, there may be some question about how his Honour dealt with the issue of treatment, which may affect the question of parole.

64 For completeness, I note that the appellant also contended that it was relevant that he had received only one parole sentence previously and had "responded well" to supervision. By "responded well", he means that he did not breach those parole conditions by failing to report. However, he breached parole in the most serious possible way, by twice reoffending. His regular reporting, and limited previous access to parole, might have been relevant if the present were a case in which one could discern a pattern of improvement in the offender's behaviour (for example, by offences which were more widely spaced in time, for reasons other than the offender's incapacity due to imprisonment; or by reason of the offending becoming apparently less serious as time went on). In those sorts of cases, one can imagine that the fact that an offender had had limited community supervision in the past might be of relevance. The appellant's prior "response" to parole however, has been to reoffend in very serious ways.

65 It is further submitted, in relation to parole eligibility, that the existence of "reporting safeguards" under the Community Protection (Offender Reporting) Act 2004 (WA) ("the Reporting Act") were relevant. The short answer to that proposition is that his Honour did not err in failing to have regard to that Act, since it was not enacted at the time at which he sentenced the appellant. I will make some comment on it shortly, since it would be a statute to which a Court resentencing the appellant might appropriately have regard if the present sentence were to be quashed.

Ground 5 - Criteria governing eligibility for parole

66 At the hearing of this appeal, the appellant was given leave to add a ground, now ground 5, which asserts that the learned sentencing Judge erred in applying the parole criteria set out in s 89 of the Sentencing Act as it was from 31 August 2003. The offences in question were committed prior to that date.

67 The amendment of s 89 was effected by s 18 of the Amendment Act, which read:

"Section 89 is repealed and the following section is inserted instead -

(1) A court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term by making a parole eligibility order'.

... "

68 The factors to which the Court may refer in determining not to make a parole eligibility order are set out elsewhere in these reasons. By reason of s 22 of the Amendment Act, the transitional provisions of Sch 1 of that Act apply. Clause 2 of that schedule relevantly provides:

"(1) If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing.

... "

69 Clause 5 makes provision for persons subject to parole terms to which the former provisions applied; for the most part the former provisions of the Sentence Administration Act 1995 (WA) apply, although par (b) of cl 5(2) provides that the new legislative provisions (the SA Act) apply for the purpose of determining whether a person is to be released on parole, where a person is already subject to a parole term.

70 There is no provision dealing specifically with the question of whether a Court sentencing an offender in respect of an offence committed prior to the Amendment Act, but for which the offender is convicted after that amending Act, is to have regard to s 89 as it now is, or as it formerly was. Section 89(1), as it now is, refers to "a court sentencing an offender". As a matter of first impression, one would consider that the criteria set out in s 89(4) would apply at the time at which the Court comes to perform that task; that is, that it would apply to all offenders convicted after it came into operation.

71 It appears that the appellant makes two principal points which he submits would lead to a contrary conclusion. The first is that, by reason of s 36 of the Interpretation Act 1984 (WA), the repeal of s 89 does not affect the "right" which the appellant acquired prior to the repeal, being, it is said, the right to have the offence determined in accordance with principles relating to conditional release on parole prevailing at the time the offences were committed. The second is that the repeal does not affect any "penalty" incurred in respect of an offence, and it is submitted that a penalty should be understood as encompassing the making of, or failure to make, an order for parole eligibility. For the second point, the appellant refers to s 37(1) of the Interpretation Act, and, in particular, to s 37(1)(e) and (f), which are as follows:

(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -

...

(e) subject to section 11 of The Criminal Code and section 10 of the Sentencing Act 1995, affect any penalty or forfeiture incurred or liable to be incurred in respect of an offence committed against that enactment;

(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,

and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made."

72 Questions of a very similar nature arose in R v Siganto [1997] NTCCA 163; (1997) 97 A Crim R 60, a decision of the Court of Criminal Appeal of the Northern Territory. In that case, subsequent to that applicant's offences, but prior to his trial, the legislation governing the minimum period to be imposed prior to release on parole had been amended. The legislative position was somewhat complicated, it appears from the report, because, as well as changes to the relevant enactment, there had also been an alteration to a Ministerial determination affecting the calculation of remission of sentence. However, the principles discussed appear to be precisely on point.

73 Very similar arguments to those now advanced on behalf of Mr McGarry were made in that case. In relation to the "vested right" submission, the Court referred to the common law framework, conveniently summarised by Dixon CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267. His Honour there said:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events."

74 Their Honours then referred to s 12 of the Interpretation Act 1978 (NT), which appears to have been in very similar terms to s 37(1). The Court observed (Siganto at 65), however, that:

"In our view, however, neither the common law nor that statutory provision avails the applicant. He acquired no right or privilege when he committed the offence. Whether he was to acquire any such right or privilege would only arise after he was convicted and sentenced to a term of imprisonment."

75 In my view, it would unduly strain the language to regard a discretion to order an offender eligible for parole, or any particular statutory criteria governing the exercise of that discretion, as being in the nature of a "right" vested in the offender at the time of commission of the offence. Rather, it is, as it appears the Court of Criminal Appeal of the Northern Territory regarded it, a discretion reposed in the Court to mitigate the punishment imposed by way of imprisonment.

76 In Siganto, the Court also considered the question of whether the provisions of the Criminal Code (NT) operated to require that the applicant in that case be ordered to be released to parole in accordance with the former provisions. That Act provided, in effect, that if the law in force when the relevant conduct occurred differed from that in force at the time of a finding of guilt, "the offender cannot be punished to any greater extent than was authorised by the former law or to any greater extent than is authorised by the latter law". The Court was of the view, however, that the maximum penalty which might have been imposed by a Court upon conviction of the applicant was unchanged. The maximum penalty for that offence (which was an offence of rape) was and remained life imprisonment. The fixing of a non-parole period was a benefit, rather than a punishment or penalty.

77 Similarly, s 121 of the Sentencing Act 1995 (NT) provided that where an Act or an instrument of a legislative or administrative character increased the penalty for an offence, the increase applied only to an offence committed after the commencement of the provision effecting the increase. The Court took the view that there was no Act or instrument which increased the penalty for rape. It remained imprisonment for life and the abolition or reduction of a possible benefit, having the effect of reducing the term of imprisonment, did not amount to an increase in penalty.

78 In Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656, the High Court allowed an appeal from the decision of the Court of Criminal Appeal of the Northern Territory to which I have referred. However, the appeal was allowed in relation to the question of whether a person who pleads not guilty may be penalised for the manner in which his defence had been conducted. Special leave to appeal was sought in relation to the issue of the effect of the alteration in the non-parole period, but had been refused. The High Court noted the refusal of special leave in relation to that issue, at [13], and added, "Parliament intended the new sentencing regime to apply to persons in the position of the appellant".

79 I would note that, not only do the issues discussed in Siganto in the Court of Criminal Appeal of the Northern Territory appear to be almost identical with the arguments raised by the appellant in the present case, but there is also a significant similarity between the amending provisions in that case and the new s 89 of the Sentencing Act 1995 (WA). The relevant provision of s 55(1) of the Sentencing Act (NT) provided that:

" ... where a court sentences an offender to be imprisoned for an offence ... the court shall fix a [non-parole] period ... of not less than 70 per cent of the period of imprisonment ... "

80 In my view, the reasoning of the Court of Criminal Appeal in Siganto is persuasive. In the absence of any authority in this State to the contrary, I would apply it in the present case.

81 The appellant submits that it would be appropriate to apply the decision in this State of Collett v The State of Western Australia [2004] WASCA 59. That case, however, dealt with an offender who had been convicted and sentenced under s 89, as it formerly stood. The question which arose in that case was whether, in considering whether a different sentence "should have been passed", the Court of Criminal Appeal, in allowing an appeal and coming to resentence an offender, should apply the criteria in the new s 89 (effectively rendering the right of appeal nugatory). That case is distinguishable.

82 For those reasons, it is my view that his Honour did not err in applying the criteria set out in s 89 as it presently stands. For completeness, I would note that in Messiha v Royce [2004] WASCA 87, Simmonds J considered that the change in s 89, effected by the Amendment Act, did not amount to a "major change" (at [110]). His Honour thought that it may have done no more than clarify that the true position was, as Anderson J had held to be the case in relation to the former s 89, that "provided that there is material ... 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" (Garlett v The Queen [2000] WASCA 72; (2000) 111 A Crim R 336 at [87]). It is not necessary to determine this issue in the present case. It is desirable, however, to note that there does not appear to be a very substantial difference between s 89 as it formerly was and as it now is. In view of the conclusion reached by the learned sentencing Judge in the present case about the danger to the community which would be posed by the applicant at the completion of the non-parole component of his sentence, it would be surprising if, even assuming the former provision to have had a "bias" in favour of parole, its application would have resulted in any different order in this case.

Indefinite imprisonment - his Honour's reasons

83 Having considered the question of parole eligibility, his Honour turned to the question of indefinite imprisonment. His Honour set out, in my view correctly, the relevant principles, in summary form, at [46] of his reasons. He then dealt with the factors set out in s 98(2).

84 In relation to par (a), his Honour found that the offences against the 14-year-old girl were of "exceptional seriousness". His Honour was certainly correct in considering the offences to be serious. He noted that the attack was predatory in nature, and marked by violence and intimidation. He noted that the appellant had hidden in bushes and waited for a victim of his choice. He noted that the offence involved a 14-year-old schoolgirl and that the attack was calculated to intimidate her and overcome resistance. He noted that the attack involved what one could call "gratuitous" violence in ripping off her clothes and forcibly handling her breasts. His Honour considered that one of the appellant's objectives was to terrorise his victim into submission. I would add to that, that it appears to me to be probable that, as with his indecent exposure type offences, the violence of the attack was intended not only to ensure that the complainant submitted, but that it was also the case that the appellant derived gratification from her shock and distress. His Honour did not accept the prosecution's description of the offence as being of "the utmost depravity", but did consider it clearly depraved and disgusting (at [48]).

85 In my respectful view, despite the many serious factors which his Honour rightly recognised, he erred in characterising this offending as being of "exceptional seriousness" for the purpose of s 98(2)(a). As I have noted earlier, the scheme of s 98(2) is such that it appears that what the legislature contemplated in relation to par (a) is that the commission of that offence alone would be regarded so seriously as to justify a conclusion that the person who committed it was such a danger to society as to require an indefinite sentence. I would accept that the serious nature of this offence is such that, when taken together with other factors to which I shall shortly refer, it points strongly in the direction of the appellant being a danger to the community. However, viewed in isolation, I do not consider that it was open to the learned sentencing Judge to reach the view that that offending alone was so exceptionally serious that indefinite imprisonment would be justified by reference only to it.

86 That conclusion is reinforced by the term of imprisonment which his Honour imposed in relation to the offending, being an aggregate term of 3 years' imprisonment (4 years and 6 months prior to the transitional provisions). An offence which attracts such a sentence could rightly be regarded as serious, but by no means, in my view, of the "exceptional seriousness" required for par (a) to come into operation. I consider shortly whether any consequence flows from that error, so far as his Honour's sentence is concerned.

87 Turning to the risk that the appellant would commit other indictable offences, his Honour concluded simply that all the evidence pointed overwhelmingly towards the appellant constituting "a high risk of reoffending sexually". His Honour referred to the appellant's past record, the experts' conclusions and the escalating pattern of his offending. His Honour did not make a specific finding as to the sorts of offences which it was likely that the appellant would commit. However, in the context of the appellant's past offending and the various expert reports, it is obvious that the risk is of offending of a similar nature to the appellant's past offending; that is, predatory offences involving indecent dealing, against girls under 16.

88 Turning to s 98(2)(c), his Honour noted that there was no evidence that the offender was mentally ill, but that he was diagnosed as suffering from a "paraphiliac disorder". Broadly, that disorder involves compulsive and deviant sexual behaviour, as it appears from the evidence before his Honour. His Honour referred to the "compulsive" nature of the disorder and concluded that the appellant's psychological condition was a major factor that needed to be "successfully addressed before the danger he posed was removed or substantially reduced". His Honour also noted that the appellant had a long history of offending, covering a span of two decades, including reoffending whilst on parole. His Honour considered that there had been an escalation in the scale of the appellant's offending and that it was appropriate to describe him as a "sexual predator".

89 Having considered those factors, his Honour concluded, at [51], that the appellant was at a high risk of reoffending. That conclusion was obviously correct.

90 His Honour noted that all the expert witnesses seemed to agree that the appellant's condition was treatable with a combination of individual counselling and pharmacological intervention. The question which his Honour then posed was whether such treatment would be successful. Although he did not say so, it is plainly implicit in his Honour's reasons that, unless he could conclude that the treatment was likely to be successful, he would regard the appellant as a danger to society, and a person for whom it would be appropriate, on that basis, to order a sentence of indefinite imprisonment. Before I consider the question of treatment, it is desirable to make some brief comments about that conclusion.

91 The concept of "danger" involves a risk that the appellant would engage in conduct, the consequences of the commission of which would properly be called grave or serious for society as a whole, or some part of it (McGarry at [23]). The question is whether a very high risk of reoffending in the manner I have earlier identified, constitutes the appellant as a "danger" to society, or part of it. As the Court noted in McGarry, in one sense almost all offending is likely to be seen as a harm to society, or part of it (at [20]).

92 Putting aside for the moment, the appellant's offences against his own daughter and the daughters of his de facto wife, a significant quantity of his offending might be regarded, if committed against adult women, as unable to qualify for the description "dangerous". Despite the element of violence involved, even the attack upon the 14-year-old girl was, by the standards of sexually motivated attacks on adult women, not as serious as many sexual offences. However, the fact that the offender's victims have in recent years exclusively been young girls, and have always included young girls among their number, is very relevant.

93 This is in part simply because the community demands a higher degree of protection of young and vulnerable members than it does for adults. It is also because the impact of the offender's behaviour is likely to be different in relation to young girls than one would expect it to be in relation to an ordinary, adult woman. The girls targeted by the appellant were at the age at which, as one would expect, they were learning to move about the community independently, and were gaining confidence in their ability to do so. The 8-year-old girl, before the appellant's offence, felt confident enough to go to the park across the road on her own. After the offence, she did not (nor was she permitted to go). The young girls targeted through the newspaper photograph were, after the offences, apprehensive about being in the house at any time without their parents, and were apprehensive even with their parents present on some occasions. The 14-year-old was unable to walk to school any longer, felt very anxious and her school marks deteriorated.

94 Even an adult woman might well feel vulnerable and anxious for a considerable time if targeted in the way in which the appellant targeted the girl located through the newspaper, and the 14-year-old. However, such anxiety takes on a very different complexion when it occurs at a time at which a child is gradually gaining confidence in her ability to rely upon herself, and to undertake small tasks independently of her family. A further possible consequence of such behaviour is to give young girls an erroneous and distorted view of male sexual behaviour; this is a matter touched on in the victim impact statements made by the parents of the girls targeted through the newspaper.

95 The appellant's offending against his own natural daughter and the daughters of his de facto was, of course, a serious case of exploitation of vulnerable young girls, which one would expect to be distinctly harmful to them.

96 Given the nature of the appellant's offending, and the selection of the young and vulnerable as his victims, together with the apparent escalation in harmfulness of the appellant's offending over time, his Honour was, in my view, plainly correct to characterise the appellant, without successful treatment, as a danger to that part of society consisting of girls under the age of 16 or thereabouts.

97 His Honour then turned to consider whether there was a possibility of successful treatment of the appellant. He noted (at [53]) that the preponderance of the evidence favoured a successful outcome with treatment. That was, in some respects, a generous conclusion. As his Honour noted, Dr Pullela's optimism was "cautious"; the psychologist, Mr Merriman, believed treatment of sufficient duration "might" achieve the desired result; only Dr Srna appeared to believe there was a good chance of a very significant reduction in the appellant's drive towards committing offences. However, it was open to his Honour to conclude that there was a prospect of success from treatment of the kind described by his Honour at [52]; that is, individual counselling and pharmacological intervention.

98 His Honour then turned to consider whether the appellant would be sufficiently committed to undertake the programme successfully (at [54]). That was because, as one would expect, the expert opinions were generally to the effect that, before one could assume that treatment would be effective, it would be necessary for the appellant to be sufficiently motivated to undertake it. His Honour considered that the preponderance of the expert evidence was to the effect that the appellant did have the necessary motivation and commitment. He noted that Ms Zuin believed that the appellant lacked the necessary motivation and that Dr Srna considered him to be lukewarm and hesitant. The psychologist, Mr Cicchini, described the appellant as absolutely frank and truthful, but torn between a desire to stop offending and the sexual obsessions which led him to offend. His Honour noted that Dr Pullela described the appellant as "very motivated and insightful". That was so, although I would note that it appeared, on a reading of the transcript of Dr Pullela's evidence, that he was inclined to defer to Ms Zuin in relation to the question of whether the appellant had any sincere motivation.

99 Simply reading the transcripts and the reports, and without having the benefit of having seen the witnesses, I would have been inclined to the view that the evidence pointed towards the conclusion that the appellant was motivated not to be caught, or not to be imprisoned, but that it was much more difficult to see anything suggesting that he had any real motivation to avoid offending. Further, it is clear that such motivation as he may have had does not extend to the use of anti-androgen medication, which the preponderance of expert opinion suggested he requires in order not to reoffend. Mr Merriman said that the appellant had appeared to be "keen on" pharmacological intervention, but in context it appears that he was discussing antidepressants. Curiously, there is no exploration with any of the expert witnesses in cross-examination, of why it was that the appellant had not undergone any "pharmacological intervention" and, in particular, had not apparently ever taken any anti-androgen medication. Given that such medication was raised with him as long ago as 1990, and given that his offending had led him to face significant periods of imprisonment, the fact that he has apparently never volunteered to take such medication - or at least has never actually taken it - suggests very strongly that, as Ms Zuin thought, he enjoys offending and is not particularly motivated to avoid it.

100 Nevertheless, despite the factors which, on a bare reading of the transcript, would appear to point in the other direction, his Honour preferred the views of those who considered that the appellant had the necessary motivation and commitment to complete treatment successfully; by "successfully", I would understand his Honour to be saying in a way which meant that his risk of reoffending was significantly reduced at the completion of the treatment.

101 His Honour then considered, however, that the problem was that the necessary duration of the treatment was considerable. He referred to Dr Srna's suggested five years of custodial-based treatment (followed, I would note, by a very significant period of compulsory post-release treatment in Dr Srna's view) and Mr Merriman's one to three years' treatment (apparently custodial). His Honour noted that both Dr Srna and Mr Merriman, together with Ms Zuin, emphasised the need for significant post-release treatment and supervision.

102 His Honour's ultimate conclusion was expressed at [58], which dealt with the need for post-release supervision and treatment. It is desirable to set it out in full. It reads as follows:

"This is where the real problem lies. There is no parole component attached to the sentences I have imposed. I have taken the view that, in the proper exercise of my discretion, there cannot be such a component. Without such a component there will be no compulsion on the offender to continue his treatment program, or subject himself to supervision, after his release from prison. The prosecution has submitted that without that condition I ought to conclude that, more probably than not, the offender would, following his release, commit offences that could properly be described as grave or serious for society or some part of it. I believe there is substance in this submission. Both the expert evidence I have referred to and common sense suggest that with the entrenched compulsive behaviour problems the offender has, and the agreed need for an extended custody based biological and psychological treatment programme, compulsive post release treatment and monitoring is absolutely essential to ensure the offender does not reoffend. Without this requirement the danger contemplated by s 98 of the Sentencing Act cannot, in this offender's case, be removed or even curtailed. He would be free in the community with no supervision or treatment plan in place. In that situation the risk of his reoffending seriously is exceptionally high. It simply cannot be allowed to happen. Unlike the situation in Narrier v R [2000] WASCA 86, while treatment is available that is probably capable of considerably reducing the risk of further offending, there is material before the Court which shows that, more probably than not, such treatment will be unsuccessful without an extensive period of post-release supervision, psychotherapy and medication. If there were some way I could compel the offender to undergo compulsory treatment and supervision in the community at the end of the nominal sentence I would certainly follow it. But since parole eligibility is inappropriate I cannot see any way of achieving this. For this reason I am satisfied that, more probably than not, the offender, if released at the end of the nominal sentence imposed, would engage in conduct, the consequences of the commission of which would properly be called grave or serious for society as a whole or for some part of it. McGarry v R at 232." (Emphasis supplied)

103 Unfortunately, it appears to me that there is a latent ambiguity in the paragraph quoted. His Honour's reference to the desirability of compelling the appellant to undergo compulsory treatment and supervision "at the end of the nominal sentence" can only suggest that his Honour had concluded that the entirety of the nominal sentence (and perhaps more) would be required for the custodial portion of the appellant's treatment, and that, in the absence of any mechanism for compulsory treatment and supervision at the end of that time, he would remain a danger. If that had been his Honour's conclusion, it seems to me that it would have been well justified on the materials before him.

104 However, his Honour expressed himself in terms of the absence of a "parole component" and appears, in saying "But since parole eligibility is inappropriate ... ", to be saying that treatment and supervision in the community could not be achieved because of his Honour's earlier decision in relation to parole. That appears to suggest a view that if his Honour had ordered that the appellant be eligible for parole, then the appellant would receive sufficient custodial and non-custodial treatment to give rise to a real prospect of a successful outcome (understanding "successful" as a significantly reduced risk of reoffending). If that were so, then, in my view, given the close connection between the issues, it would have been appropriate for his Honour to have revisited the question of parole. If there was a real prospect of successful treatment based on treatment in custody during the non-parole portion of the sentence, followed by treatment in the community while on parole, then that might well be a factor which might lead to an order for parole eligibility.

105 It is unfortunately, therefore, not entirely clear what conclusion his Honour reached about the duration of treatment (custodial and non-custodial) which the appellant would require before it could reasonably be considered that there was any real prospect of a significantly reduced risk of reoffending. It seems to me that that factor alone would be sufficient to require this Court to set aside the order for indefinite imprisonment. I am reluctant to do so based upon what may turn out to be no more than a problem of expression. If all his Honour was saying was that, even after treatment for the whole of the nominal term, the appellant would still pose a risk unless he could be further treated and supervised, that conclusion was well open. However, in that context, the apparent reference to the absence of a parole eligibility order as "the real problem" and the sentence commencing "But since parole eligibility ..." are inexplicable.

106 As I have noted, in my view, his Honour erred also in forming the view that the offence relating to the 14-year-old girl was of "exceptional seriousness" within the meaning of s 98(2). Given his Honour's conclusions in relation to the other paragraphs of s 98(2), however, that error alone would not in this case justify setting the sentence aside.

107 It would appear to follow from the reasoning of the High Court in McGarry, at [8] and [9], that, having reached the conclusion that the order for indefinite imprisonment should not have been made, the entire sentence should be quashed. The Court, at those paragraphs, refers to the order for indefinite imprisonment and the decision fixing the nominal sentence as "part of a single sentencing decision", so that it is said to follow that if the discretion in relation to the nominal term miscarried, the whole of the sentence, including the order for indefinite imprisonment, should be set aside. It would appear from those reasons that the reverse proposition is also correct; that is, that this Court, having determined that the indefinite term should not have been imposed, the entirety of the sentence should be quashed. Further, because in the present case, on one view of his Honour's conclusions, he should have revisited the question of parole, it would be desirable that the appellant's sentence be reconsidered afresh in relation to that issue also.

108 The question then arises as to whether this Court should resentence the appellant, or should remit the resentencing to the learned sentencing Judge. In my view, it is appropriate, notwithstanding the inevitable delay, to remit it to the learned sentencing Judge. There are a number of reasons for that course. The most important one is that, as I have indicated, this Court has not had the opportunity of hearing the witnesses heard by his Honour. It would not be in the interests of justice for the appellant to be sentenced by a Court which had not had that opportunity. Further, almost a year has elapsed since the sentence was imposed by the learned sentencing Judge. It may well be appropriate for a Court coming to resentence the appellant, particularly if it is considered that indefinite imprisonment is a real possibility (as, in my view, it is) to hear up-to-date evidence about the appellant's treatment, if any, while in prison and his response to that treatment. It might, for example, be important to know whether the appellant had in fact taken any anti-androgen medication and if not, why not; but that will be a matter for the sentencing Judge.

109 Although the whole of the sentence imposed must be quashed, there was, of course, no issue taken with the length of the nominal terms imposed, so it is unlikely that there would be any need to reconsider those.

The Community Protection (Offender Reporting) Act 2004

110 Because of the passage of the Reporting Act, there are some matters which a sentencing Court will need to consider, in the light of the expert evidence, which his Honour was not required to deal with. It is appropriate that those matters be considered by a Court which has had the advantage of hearing from relevant witnesses. It may be appropriate that the witnesses previously heard be given an opportunity to comment specifically on them.

111 The Reporting Act may be relevant both in relation to a decision whether or not to make the appellant eligible for parole, and in relation to the question of indefinite imprisonment. It is desirable, therefore, that I briefly comment on that Act and its relevance.

112 In broad terms, the Reporting Act creates a category of "reportable offenders". Reportable offenders must report certain details to the Commissioner for Police. They include the offender's name, date of birth, address, names and ages of children residing in the same household, or with whom the offender has regular unsupervised contact, his or her employment and details of any club affiliation (where the club or organisation has members who are children or conducts activities in which children participate), details of the offender's vehicle and details of travel arrangements. Changes to relevant reportable details must be reported. The person must provide a photograph. The reporting period varies with the offending, but may be considerable. It extends for at least the duration of any period of parole.

113 In addition to reporting requirements, the Commissioner may apply for prohibition orders. Orders may be made by a Court prohibiting a person from engaging in conduct specified in the order, if the Court is satisfied that the person poses a risk to the lives or sexual safety of one or more children, or children generally, and that making the order will reduce the risk. Orders may prohibit conduct, including associating with or contact with specified persons, being in specified locations or kinds of locations, engaging in specified behaviour, or being in specified employment or employment of a specified kind. Such orders may be made by consent.

114 It is submitted on behalf of the appellant that being subject to the provisions of the Reporting Act would significantly reduce the danger which he poses to the community. It is not clear to me how this reduction in risk would occur. One can see, in relation to an offender, for example, who only offended within the precincts of a primary school, or whose modus operandi was to become engaged in an educational establishment or a youth group, that orders prohibiting that kind of conduct would significantly reduce the offender's preferred opportunity for offending. The appellant, however, offends in his own home, on the curtilage of the private homes of others, in parks and on streets and pathways. It is difficult to envisage any prohibition order which would affect such wide-ranging and opportunistic predation.

115 The reporting requirements of the Act may well deter some offenders from offending. It may be that reporting of some of the specified matters may alert the Commissioner to a change in the offender's behaviour which indicates that offending is more likely; the obvious example is the offender who regularly offends against primary school aged children who are unrelated to him, and who reports that he has moved to reside opposite a primary school. In such circumstances, it may be that the Commissioner would undertake extensive surveillance which could prevent offending, or might apply for a prohibition order. Reporting may also be effective in deterring offenders such as those who have in the past regularly changed their address as a means of avoiding detection. The appellant does not seem to fall into that category, since he has never, it seems, been difficult to locate. There is perhaps a possibility that being required to report may lead the appellant to feel that he is under increased surveillance, and that detection of any offending on his part is more likely, and he may thereby be to some degree deterred from further offending. It is difficult to evaluate whether this is a real as opposed to a theoretical possibility, but it is plainly something which it would be appropriate for a sentencing Judge to consider.

116 Consistently with McGarry's case, it seems to me that it is necessary to quash the whole of the sentence imposed upon the appellant and to remit the matter to his Honour to sentence the appellant afresh. However, no complaint was, or could have been, made about the length of the terms which his Honour imposed, and it seems unlikely that there will emerge, on the appellant's resentencing, any reason to revisit those. So far as parole is concerned, that question is again a live question. However, it seems to me that his Honour would only reach a different conclusion if there were significant new evidence about the appellant's treatment and response to treatment, or in his Honour's assessment of the likely effect of the Community Protection (Offender Reporting) Act.

117 ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons prepared by Wheeler JA. I agree with the reasons and conclusions reached by her Honour and have nothing to add.

118 MCLURE JA: I have had the advantage of reading in draft form the reasons of Wheeler JA. I agree with the orders she proposes generally for the reasons she gives.

Protection (Offender Reporting) Act 2004

Administration Act 2003

Legislation Amendment and Repeal Act 2003

Prisoners (Sexual Offenders) Act 2003

Community Protection (Offender Reporting) Act 2004

McGarry v The State of Western Australia [2005] WASCA 252

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (182 paragraphs)

McGarry v The State of Western Australia [2005] WASCA 252 (22 December 2005)

The appellant's criminal history and former treatment

Ground 5 - Criteria governing eligibility for parole

Indefinite imprisonment - his Honour's reasons

The Community Protection (Offender Reporting) Act 2004

Parties

Legislation Cited (8)

Cases Cited (15)