Mitchell v The Queen

On 8 September 1993, the appellant, who was then aged twenty-four, pleaded guilty to four counts of wilful murder, three counts of indecently interfering with a dead body by sexual penetration, and one count of sexual penetration of a child under thirteen years. These offences were committed early in the morning of 22 February 1993 and were attended by great cruelty and brutality. The appellant killed a woman and her three children, a son aged sixteen and two daughters aged five and seven years. The victims lived on a remote property situated at Greenough, Western Australia, where the crimes were committed.

On the same day, 8 September 1993, the appellant pleaded guilty to a charge of stealing $110 on 13 November 1991. Later, on 7 October 1993, the appellant pleaded guilty to two charges of armed robbery with threats of actual violence, of amounts totalling $1,290. These offences took place on 2 and 3 November 1991.

The appellant came up for sentence before a judge of the Supreme Court of Western Australia (Owen J). His Honour heard evidence in order to resolve a dispute concerning the amount of alcohol and drugs which had been consumed by the appellant before the events on the morning of 22 February 1993. Owen J accepted the evidence of the appellant that, from approximately 7 pm onwards on 21 February, he consumed six cans of full strength beer, thirty to forty cones of marijuana and three Surgam tablets (an anti-inflammatory, anti-rheumatic drug). Further, on two occasions during that evening, the appellant injected himself with about 0.9 grams of amphetamine.

Section 282 of the Criminal Code WA (the Code) draws a distinction between the commission of a crime of wilful murder and of murder. The appellant pleaded guilty to the four counts of wilful murder and therefore, by force of s 282, he was liable to a mandatory punishment of "strict security life imprisonment" or "life imprisonment". The distinction between these two categories of punishment lies in the operation of the parole system, under other legislation to which we will refer. On each of the four counts of wilful murder Owen J sentenced the appellant to strict security life imprisonment.

On each of the three counts of indecently interfering with a dead body, the appellant was sentenced to a maximum term of two years imprisonment, without eligibility for parole. On the count of sexual penetration of a child, the appellant was sentenced to a term of eighteen years imprisonment, without eligibility for parole. The last four sentences were directed to be served each concurrently with the others and concurrently with the sentences of strict security life imprisonment. On the counts of armed robbery, the appellant was sentenced to five years imprisonment and, on the stealing charges, he received three years imprisonment, in each case without eligibility for parole. These sentences were directed to be served concurrently each with the others, and concurrently with all the other sentences imposed upon the appellant.

However, Owen J declined to make an order under s 40D(2a) of the Offenders Community Corrections Act 1963 WA (the Act) that the appellant not be eligible for parole. The Act was enacted as the Offenders Probation and Parole Act 1963 WA. Section 18 of the Community Corrections Legislation Amendment Act 1990 WA substituted as the short title " Offenders Community Corrections Act 1963 ".

The Crown appealed against the refusal of the sentencing judge to make an order under s 40D(2a) in respect of the four sentences for wilful murder. The Court of Criminal Appeal (Kennedy, Ipp and Murray JJ) by majority (Murray J dissenting), allowed the appeal and made an order under that section that the appellant not be eligible for parole [1] .

The present appeal to this Court is brought against the decision of the Court of Criminal Appeal to allow the appeal against the refusal of the sentencing judge to make such an order.

This was the first occasion on which the Court of Criminal Appeal had been called upon to consider the effect of the relevant statutory provisions imposing the task upon a sentencing judge who, having sentenced an offender to strict security life imprisonment for wilful murder, must consider whether to exercise the power conferred by the amendments to s 40D of the Act made by s 49 of the Criminal Law Amendment Act 1988 WA (the 1988 Act).

Broadly, the effect of the amendments is to empower a court to order that the prisoner not be eligible for parole, whereupon the power conferred on the Governor by s 40D(1) to direct that a prisoner undergoing a sentence of strict security life imprisonment be released from prison on parole, may not be exercised at any time.

Section 40D was inserted as one of a number of a of amendments effected by s 12 of the Acts Amendment (Imprisonment and Parole)Act 1987 WA (the 1987 Act). Section 40D was then amended by s 49 of the 1988 Act. The result was that, at the time of the decision of the sentencing judge on 14 October 1993, and the Court of Criminal Appeal on 29 April 1994, s 40D stated [2] :

(1) Subject to subsections (2) and (2b), following the furnishing of a report by the [Parole] Board under section 34(2)(b) or (d) or (3) the Governor may by order in writing direct that a prisoner undergoing a sentence of strict security life imprisonment or a sentence of life imprisonment be released from prison on parole at the time determined under the order and the prisoner shall be released accordingly.

(2) In the case of a prisoner undergoing a sentence of strict security life imprisonment other than a sentence in respect of which an order was made under subsection (2a), an order under subsection (1) shall not be made earlier than 20 years after -

(a) the date when the sentence was commuted from a sentence of death; or

(b) the date when the prisoner was sentenced to strict security life imprisonment,

as the case may be, except where the Governor is of the opinion that special circumstances exist.

(2a) Where a court imposes a sentence of strict security life imprisonment on a person the court may, if it considers that the making of an order under this subsection is appropriate, order than the person is not to be eligible for parole.

(2b) In the case of a prisoner undergoing a sentence of strict security life imprisonment in respect of which an order was made under subsection (2a), an order under subsection (1) shall not be made at any time.

(3) The Minister shall cause every order made under subsection (1) in respect of a prisoner undergoing a sentence of strict security life imprisonment, together with an explanatory note as to the circumstances, to be tabled in each House of Parliament within 15 sitting days of that House after the making of the order.

(4) Notwithstanding section 44 or 45, whenever a prisoner undergoing a sentence of strict security life imprisonment or a sentence of life imprisonment has been released from prison on parole (whether before, on or after the commencement date) and his parole is thereafter cancelled, he shall not be further released on parole otherwise than under this section.

1. Section 40D has since been amended by s 24 of the Criminal Law Amendment Act 1994 WA with effect from 20 January 1995 (s 2(2)).

It should immediately be observed that s 40D(2a) empowers a court to make an order that the person under a sentence of strict security life imprisonment is not to be eligible for parole if the court considers that the making of such an order "is appropriate". There is no further statement of the content of the term "appropriate". This may be contrasted with s 37A of the Act. Section 37A was also inserted by s 12 of the 1987 Act. Sub-section (1) of s 37A provides that where a court sentences a person convicted of an offence to a term of imprisonment the court may, "if it considers that the making of an order under this subsection is appropriate", order that the convicted person be eligible for parole. In determining whether the making of an order under s 37A(1) is appropriate, the court may have regard to all or any of the matters detailed in s 37A(3). These are the nature of the offence, the circumstances of the commission of the offence, the antecedents of the convicted person, circumstances relevant to the convicted person or which might be relevant to that person when eligible for release on parole if an order were made, and "any other matter that the court thinks relevant". However, the court is not to make an order under s 37A(1) in respect of a sentence of strict security life imprisonment or life imprisonment (s 37A(6)(e)).

It is necessary to read s 40D(1) with the provisions of s 34 there referred to, dealing with the furnishing of reports by the Parole Board (the Board). Paragraph (b) of s 34(2) obliges the Board to furnish a written report to the Minister with respect to a prisoner whenever so requested in writing by the Minister. Paragraph (d) obliges the Board, whether so requested by the Minister or not, to furnish a written report to the Minister with respect to certain prisoners undergoing a sentence of strict security life imprisonment as soon as practicable after the date of the expiration of a period of twenty years after the prisoner was sentenced. Provision also is made by par (d) for the furnishing of such a report in respect of prisoners serving sentences of life imprisonment, at an earlier time, namely ten or twelve years after sentence, depending upon the date of sentencing. At any time, in circumstances that appear to the Board to be exceptional, it may furnish to the Minister a written report with respect to a prisoner (s 34(3)).

Sub-section (2) of s 40D qualifies the operation of sub-s (1) in relation to those serving sentences of strict security life imprisonment. It does not qualify the operation of sub-s (1) in relation to those serving sentences of life imprisonment. The effect of s 40D(2) is to bar the making of an order for release on parole under s 40D(1) earlier than twenty years after the date when the prisoner was sentenced to strict security life imprisonment, except where the Governor is of opinion that special circumstances exist. However, s 40D(2) itself is limited by succeeding provisions of the section so as to preclude the making of any order for release on parole in respect of a sentence of strict security life imprisonment to which an order under s 40D(2a) applies.

An order made under s 40D(2a) that a prisoner serving a sentence of strict security life imprisonment is not to be eligible for parole has the consequence specified in s 40D(2b). This is that an order made under s 40D(1) "shall not be made at any time". The result of such an order thus is to withdraw from the Governor what otherwise would be the power under sub-s (1), which is exercisable after the expiry of the period specified in sub-s (2) and following the furnishing of a report by the Board, to direct that a prisoner undergoing a sentence of strict security life imprisonment be released from prison on parole.

The position of such a prisoner should be contrasted with that of a prisoner serving a sentence of life imprisonment. This is the other category relevantly specified in s 282 of the Code. Section 40D does not provide, in the case of a prisoner serving a sentence of life imprisonment, for a limitation or exclusion of the power conferred upon the Governor by sub-s (1) by an order barring release at any time. Nor is there the twenty year time bar imposed by s 40D(2) in respect of strict security life imprisonment terms.

For sentencing on conviction of wilful murder, the legislation thus provides what the sentencing judge described as three sentencing options, namely (i) life imprisonment, to which s 40D(1) applies, (ii) strict security life imprisonment, to which sub-ss (1) and (2) of s 40D apply so that an order might not be made until twenty years have passed, and (iii) strict security life imprisonment in respect of which sub-ss (2a) and (2b) apply to qualify sub-s (1), thereby providing what the sentencing judge called "truly a whole of life sentence". It should be added that, whilst no particular significance was thought to be attached to it on the appeal, there operates outside, but apparently concurrently with, the system, the royal prerogative of mercy preserved by s 5(3) of the Act. This states: "Nothing in this Act in any way affects Her Majesty's royal prerogative of mercy."

The sentencing notes of Owen J extend to thirty pages. His Honour began by detailing the facts and concluded that they demonstrated three things: the extreme seriousness of the circumstances of the offences; the strength of the case against the appellant at the time when he confessed; and the clarity of his recollection of the events of the night of 21-22 February 1993. Owen J went on to make findings on disputed facts, including, as we have indicated, the degree of drug intoxication of the appellant. His Honour decided that the proper inference to be drawn from the facts was that the appellant went to the house at Greenough with the intention of committing murder. Whilst prepared to accept that what would otherwise be a totally meaningless, motiveless and mystifying series of crimes occurred whilst the appellant was under the influence of drugs and might not have happened otherwise, his Honour said that there was a very strict limit upon the extent to which leniency could be shown to any offender by reason of drug addiction.

The sentencing judge addressed the question of whether the sentence in respect of the counts for wilful murder should be strict security life imprisonment or life imprisonment by referring to a decision of the Court of Criminal Appeal in Jackson v The Queen [3] . The Court there said that the case law on s 282 of the Code indicated that the relevant considerations were the particular circumstances of the crime (so as to assess the degree of culpability of the convicted murderer), the antecedents of the offender, and the need for community protection in the light of the first two factors. Owen J concluded that, in the present case, the goal of punishment required the imposition of the most severe punishment that could be imposed and that justice would not be seen to be done unless the sentence on the four counts of wilful murder was one of strict security life imprisonment.

Finally, his Honour turned to consider questions of parole and whether an order should be made under s 40D(2a). Earlier in his reasons, his Honour had noted that the legislation was silent as to the test to be applied in deciding whether to make such an order but concluded that, in considering the appropriate disposition, the court should have regard to all those factors to which it normally paid heed in ensuring that, so far as possible, the penalty met the objects for which the sentence was imposed. He had continued:

Because it is related to parole, this will include matters such as the nature of the offence, the circumstances of the offence and the antecedents of the offender as well as matters that might be relevant at the time when the prisoner is due to be considered for parole if appropriate. Put slightly differently, when considering an order under s 40D(2a) the court must examine the place which parole, with its emphasis on rehabilitation of the offender, should take in the overall mix of factors which together make up the sentencing process.

Owen J said that he was aware that, if he made an order, the appellant would spend the rest of his life in prison without any prospect for release and without any hope for the future. His Honour went on:

The enormity of doing so must be apparent to anyone who looks at a problem of this type with any sense of balance.

This calls for a reconsideration of the factors which I took into account in deciding that strict security life imprisonment was the appropriate penalty. Once again I am struck by the intrinsic seriousness of the circumstances of these offences

I have considered very carefully issues of proportionality. A sentence must never be increased beyond what is proportionate to the crime. There are many authorities emphasising the heavy responsibility of the sentencing judge to set a minimum term, where that is appropriate, and to avoid the imposition of an indefinite term except on the most compelling evidence.

His Honour then referred to a number of decisions including those of this Court in Veen v The Queen [4] , Veen v The Queen [No 2] [5] and Chester v The Queen [6] , and continued: As I have already said, I am not able to say that you will always be a danger to the public. That depends on whether you will stay from drugs. Who knows what the future holds? I can not prognosticate twenty years or more into the future on the basis of the materials before me If I were to make that decision now it would be that you not be released because I have little confidence in your commitment to free yourself from drugs. In light of the expert evidence I am not able to say that this would be the case in twenty years or more from now. I continually return to the intrinsic seriousness of the offences. The goals of punishment, to which I have already referred must be balanced and met. The resolution of this issue depends on an assessment of the balance to be struck between the circumstances of the offence, and the factors militating in favour of parole. In essence it boils down to a proposition that is simple to state but difficult to answer, namely, whether the more general and objective factors relating to punishment outweigh your potential to be rehabilitated through the medium of parole. (Emphasis added.) 1. (1979) 143 CLR 458. 2. (1988) 164 CLR 465. 3. (1988) 165 CLR 611.

Evidence had been given by expert witnesses, Dr David Lord, a psychiatrist, Professor Robert Finlay-Jones, a consultant psychiatrist, and Mr Richard Langham, a pharmacologist with a particular interest in the effect of drugs on human behaviour. It is significant that his Honour said that he had little confidence in the present commitment of the appellant to free himself from drug taking but that, in light of the expert evidence, he was not now able to say that the same would be true in twenty years or more from the present. His Honour concluded:

On balance I have decided that I will not make an order under s 40D(2a). This means that you will be eligible for parole on the sentences of strict security life imprisonment. I have imposed the most severe sentence that I can, namely strict security life imprisonment. On the other hand, the unchallenged expert evidence is that you would not constitute a danger to the public (drug taking to one side) and that you have a constructive attitude to the future. I take this to mean that there is at least a potential for your rehabilitation.

What factor, in the mix of the goals of punishment, would be served by, to use the vernacular, throwing away the key? I can not undo the devastation that you have wrought on everyone concerned, alive and dead. So far as I am concerned you will never be released. That is the function of strict security life imprisonment. If, at a time in excess of twenty years, the executive arm of government, based on facts which are unascertainable now but which will be apparent then, takes the view that you do not constitute a danger to the public and are otherwise deserving of release on licence, then that is a decision that it will take. The Parole Board is required to consider the circumstances of the offence in making a recommendation. If the Board looks at it in the same way as I do it could be many, many years greater than twenty before you would merit consideration. The fulfilment of the goal of public safety lies in that decision. In the meantime you are incapacitated. In a case such as this deterrence is of only the most minimal relevance. That leaves retribution. I have imprisoned you for life. I believe that I should do no more. (Emphasis added.)

In the Court of Criminal Appeal, as we have indicated, Murray J would have dismissed the appeal. His Honour discussed the statement by the sentencing judge that he could not prognosticate twenty years or more into the future on the basis of the materials before him. Murray J continued [7] :

In my opinion, his Honour was expressing the view that the evidence before him lacked the necessary cogency to provide with sufficient clarity the ground upon which the power to absolutely deny eligibility for parole should be exercised. He found it impossible to say that the [appellant's] future was so devoid of any prospect of rehabilitation that for the whole of the perhaps up to forty-five or fifty years of life remaining to him, the [appellant] should be kept confined and denied the possibility of parole by the operation of the mechanisms of the Act I find myself quite unable to conclude that the learned sentencing judge erred in that regard. 1. R v Mitchell (1994) 72 A Crim R 200 at 233.

However, the other members of the Court of Criminal Appeal, Kennedy and Ipp JJ, were in favour of allowing the appeal. Ipp J held that the sentencing judge had erred in stating that the resolution of the issue before him depended on an assessment of the balance to be struck between the circumstances of the offence and the factors militating in favour of parole. His Honour said [8] :

In my opinion, the overriding factor in determining whether the court should exercise its powers under s 40D(2a) is risk to the community, not matters relating to the punishment of the offender. The punishment to be imposed for wilful murder is laid down by the Criminal Code and was properly imposed when the offender was sentenced to strict security life imprisonment. An order under s 40D(2a) concerns questions of parole, not punishment

In my opinion the correct question is not whether the objective factors relating to punishment outweigh the offender's potential to be rehabilitated through parole, but, as I have stated, whether the offender constitutes such a risk to the community that the power of the Governor to grant parole should be withdrawn.

Accordingly, in my opinion, there has been an error by the learned sentencing judge in the exercise of his discretion, and that discretion should be exercised afresh by this Court. I should also say that I agree with Kennedy J that the learned sentencing judge did not give sufficient weight to the circumstances of the offences. Whatever adjectives are used they will not be able, accurately, to convey the enormity of the evil committed and the suffering caused by the [appellant]. In my opinion, in the present case, the circumstances of the offences override all other considerations.

The presiding member of the Court of Criminal Appeal, Kennedy J referred to House v The King [9] and later said that it was not enough that he would have exercised "the discretion" differently from the sentencing judge. His Honour continued [10] :

The critical question is whether his Honour's discretion has miscarried. In the end, I have reached the conclusion that his exercise of his discretion did miscarry so as to justify its reversal

Although, as I have indicated, his Honour in this context made some brief references, in general terms, to the circumstances of the offences with which he was concerned, when he came to consider the exercise of his discretion, he does not appear to have given this factor significant weight. In this, I believe that he was in error.

It is only in relatively recent times that the Parliament has again empowered judges to impose whole of life sentences. It is a power which it is intended should be exercised in a proper case, and it is the responsibility of the court to exercise it once it is satisfied that it is appropriate to do so. In my opinion, the nature and circumstances of the offences were intended by Parliament to be major factors in the determination of whether it is appropriate to order that a prisoner not be eligible for parole. When full weight is given to them, and to the possibility of the [appellant] offending again if released, personal considerations such as the possibility of rehabilitation must give way. In my view, this is one of the very rare cases in which a sentencing judge should conclude that it is appropriate that an order be made under s 40D(2a).

1. (1936) 55 CLR 499. 2. R v Mitchell (1994) 72 A Crim R 200 at 222-223.

The appeal to this Court turns upon the construction of s 40D and upon the further question whether the majority of the Court of Criminal Appeal erred in holding that the sentencing judge had misconstrued or misapplied the provision in a manner to attract appellate intervention by the making of an order under the section. It does not turn upon the expression of a view by this Court as to whether or not the making of an order was appropriate in the circumstances.

In the passages from the judgments of the majority of the Court of Criminal Appeal which we have set out, there is reference to the sentencing judge having erred in the exercise of what is identified as a discretion reposed in him by s 40D(2a). However, in our view, that incorrectly perceives the character and operation of the provision.

It is true that sub-s (2a) states that the court "may" order that the prisoner in question is not to be eligible for parole. The power thus reposed in the court is conditioned upon a determination by the court that it considers that the making of the order "is appropriate".

But it does not follow that, if the court has concluded that such an order is appropriate, the court then has a discretion in the matter. The point may be illustrated by reference to the following passage from the judgment of Windeyer J in Finance Facilities Pty Ltd v Federal Commissioner of Taxation [11] . His Honour said of the question of whether a permitted power must be exercised if the stipulated conditions be fulfilled:

This does not depend on the abstract meaning of the word "may" but [on] whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events the "may" becomes a "must". Illustrative cases go back to 16[93]: R v Barlow [12] . Today it is enough to cite Julius v Bishop of Oxford [13] ; and add in this Court Ward v Williams [14] . But I select one other reference out of a multitude: MacDougall v Paterson [15] . There Jervis CJ said in the course of the argument [16] . "The word "may" is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise". And, giving judgment, he said [17] :We are of opinion that the word "may" is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises. In MacDougall v Paterson , the Court of Common Pleas held that the word "may" as used in The County Courts Act 1850 UK [18] , which provided that in certain cases the court or a judge might by rule or order direct that the plaintiff recover costs, was used not to give a discretion but to confer a power, the exercise of which depended upon the proof of the particular case out of which the power arose [19] . That reasoning is applicable to s 40D(2a) of the Act. 1. (1971) 127 CLR 106 at 134-135. 2. (1693) Carth 293 [ 90 ER 773]; 2 Salk 609 [91 ER 516]. 3. (1880) 5 App Cas 214. 4. (1955) 92 CLR 496 at 505-506. 5. (1851) 11 CB 755 [138 ER 672]. 6. MacDougall v Paterson (1851) 11 CB 755 at 766 [138 ER 672 at 677]. 7. MacDougall v Paterson (1851) 11 CB 755 at 773 [138 ER 672 at 679]. 8. 13 & 14 Vict c 61. 9. See also Nile v Wood (1988) 167 CLR 133 at 143.

Accordingly, the issue before the Court of Criminal Appeal was not whether the sentencing judge had erred in the exercise of a discretion, but rather whether he had fallen into appealable error in reaching the decision that he did not consider it appropriate to make an order under s 40D(2a). That, in turn, involved the issue whether there had been appealable error in the construction and application to the facts of the term "appropriate". The task of the Full Court was not to determine whether Owen J had so erred in the exercise of a discretion as to attract the principles laid down in the well-known passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King [20] .

The phrase "considers appropriate" indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper. Here, there were two possible outcomes. The first was to leave intact the authority of the Governor, in the circumstances identified in sub-ss (1) and (2) of s 40D, to release the appellant on parole at a date not earlier than twenty years from sentence. The second was to withdraw that power from the Governor by denying authority ever to order the release of the appellant on parole.

The sentencing judge had regard to a range of matters. He said: "I continually return to the intrinsic seriousness of the offences." But, rightly, in our view, his Honour decided that the resolution of the issue before him depended upon an assessment of the balance to be struck between the circumstances of the offence and the factors militating in favour of the possibility of parole. In particular, Owen J considered whether the more general and objective factors relating to punishment outweighed the potential of the appellant to be rehabilitated through the medium of parole. His Honour was entitled to have regard to the unchallenged expert evidence that the appellant would not constitute a danger to the public, drug taking to one side, and that he had a constructive attitude to the future. Thus, his Honour acted on the footing, as in the circumstances he was bound to do, that there was at least some potential for the rehabilitation of the appellant.

Owen J, again correctly to our minds, had regard to the possibility of the later emergence of facts, presently unascertainable, but apparent twenty years or more hence, which might then indicate that the appellant no longer constitutes a danger to the public and is otherwise deserving of release on licence.

There is no substance in the submission that the sentencing judge did other than strike a balance between considerations which bore upon the making of a choice between the competing outcomes for which the legislation provided. The legislation does not, contrary to the view advanced by Ipp J, indicate any particular "overriding factor". Nor, in our view, did the sentencing judge fail to give "significant weight", assuming that to be the proper way to express the point, to the circumstances of the offences. Rather, as we have indicated, his Honour said that he continually returned, in the course of his consideration of the matter, to the intrinsic seriousness of the offences. His Honour is to be taken as having meant what he said.

The question before the Court of Criminal Appeal was not whether, had their Honours collectively been exercising at first instance the power reposed in the sentencing judge, the Court would have reached a different decision and would have made an order under s 40D(2a) of the Act. Still less is it the function of this Court, on appeal from the Court of Criminal Appeal, to express any view as to the conclusion it might have reached if its tasks were the task of the sentencing judge. The point is that the majority of the Court of Criminal Appeal fell into error in displacing the decision of the primary judge.

The appeal should be allowed. The order of the Court of Criminal Appeal that the appellant be not eligible for parole pursuant to s 40D(2a) of the Act should be set aside.