Sentencing Act 1995 (WA) s 98

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

Bowdidge v R, unreported; CCA SCt of WA; Library No 920191; 3 April 1992

Bugmy v R [1990] HCA 18; (1990) 169 CLR 525

Deakin v R [1984] HCA 31; (1984) 58 ALJR 367

Heferen v R [1999] WASCA 81

Jarvis v R, unreported; CCA SCt of WA; Library No 930391; 14 June 1993

Kilner v R [1999] WASCA 189

Little v R, unreported; CCA SCt of WA; Library No 970031; 3 February 1997

Mill v R (1988) 166 CLR 59

Nguyen v R [1999] WASCA 54

Pezzino v R (1997) 92 A Crim R 135

Podirsky (1989) A Crim R 404

Power v R [1974] HCA 26; (1974) 131 CLR 623

R v Clinch (1994) 72 A Crim R 301

R v Cooper (1987) 30 A Crim R 19

R v Gooch (1989) 43 A Crim R 382

R v Narrier (1998) 19 SR (WA) 247

Robbins v R, unreported; CCA SCt of WA; Library No 930136; 11 February 1993

Stewart v R [1999] WASCA 7

Tunaj v R [1984] WAR 48

Veen v R [1979] HCA 7; (1979) 143 CLR 458

Veen v R (No 2) [1988] HCA 14; (1988) 33 A Crim R 230

Weng Keong Chan (1989) 38 A Crim R 337

Woods v R (1994) 14 WAR 341

1 PIDGEON J: The applicant was sentenced to a total effective term of 12 years imprisonment without eligibility for parole for a series of offences outlined in the reasons of Wallwork J. There was, in addition, an order pursuant to s 98 of the Sentencing Act 1995 of indefinite imprisonment.

2 The applicant in his grounds of appeal claims that the sentence was so excessive as to manifest error for a number of reasons, including the place which the criminal conduct occupied in the scale of seriousness of crimes of that type. This ground, although not abandoned, was not argued as it was conceded that the sentences were well within range. This concession was properly made. The offences themselves and the effect the offences had on the victims were extremely serious as observed by the sentencing Judge. The sentences were well within range.

3 A ground bringing into question his Honour's decision in not ordering eligibility for parole was abandoned leaving as the only live ground whether there was error in ordering the indefinite sentence of imprisonment.

4 I am of the view that the circumstances so far as they relate to the offender were not sufficient in this particular case to justify an order for indefinite imprisonment. I have reached that view for the reasons referred to by Wallwork J and Murray J. The principles which a sentencing Judge must follow are those set out in s 98 as explained in the cases dealing with that section. These principles in the main coincide with what was said in the earlier case of Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611.

5 I would grant leave and allow the appeal to the extent of quashing the order for indefinite imprisonment.

6 WALLWORK J: These are reasons for judgment after the hearing of an application for leave to appeal against an order that the applicant be imprisoned indefinitely pursuant to s 98 of the Sentencing Act 1995 at the expiration of an effective sentence of 12 years' imprisonment, which was imposed upon him on 16 June 1998.

7 The effective term of 12 years imprisonment was comprised as follows:

* 4 years' imprisonment for an aggravated burglary;

* 8 years' imprisonment for a sexual penetration without consent while threatening to kill a woman who was in her home at the time of the aggravated burglary: That sentence was ordered to be served concurrently with the 4 year term;

* 4 years' imprisonment for a second aggravated burglary on the same night as the first one: That sentence was ordered to be served cumulatively on the first two terms;

* 3 years' imprisonment for unlawfully assaulting a woman in her house and doing her bodily harm to be served concurrently with the three abovementioned sentences.

8 The only question to be decided on this application is whether or not the learned sentencing Judge erred in ordering that the applicant be imprisoned indefinitely following the expiration of the finite terms of imprisonment.

9 In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JA, having discussed the provisions of s 98 of the Sentencing Act 1995 (WA) ("the WA Act"), said:

"This Court, in Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611 considered section 661 of the Code, which was the precursor of section 98. It was there said that the exercise of the power 'should be confined to very exceptional cases where the exercise of the power is demonstrably necessary'. It was pointed out in Moffatt that, because an indefinite sentence of the kind provided for in such legislation goes beyond punishing an offender to an extent that is proportionate to the crime, the power conferred upon the court is exceptional, as are the cases that warrant an exercise of the power."

10 It was also stated in Lowndes that an order under s 98 involves the making of a discretionary judgment. Therefore before that judgment can be interfered with, it is not enough that judges of an appellate court consider that if they had been in the position of the primary judge they would have taken a different course. It must appear that some error has been made in exercising the discretion.

11 In House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 it was said:

"If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."

12 In Moffatt (1997) 91 A Crim R 557 at 584, Hayne JA said:

"Before parting with the matter I wish to add one further observation. The power to impose an indefinite sentence is one that will fall to be exercised in few (perhaps very few) cases. It is a sentence that goes beyond punishing the offender to the extent that is proportionate to his or her crime. In Chester the High Court said (at 618; 387) of the Western Australian preventative detention legislation, that:

'... the power to direct or sentence to detention contained in section 662 (of the Western Australian Code) should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm ...'

While I accept that there are safeguards in the Victorian legislation that were not to be found in the provisions considered in Chester's case (safeguards like judicial rather than executive review and the identification of a narrower list of offences for which indefinite sentences can be imposed) the fundamental proposition that such powers are to be sparingly exercised, and then only in clear cases, applies to the Victorian provisions as much as it did to the Western Australian."

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

14 Prior to the recent decision of the High Court in Lowndes, in Jones v The Queen, unreported; CCA SCt of WA; Library No 980246; 8 May 1998, at 16 of his reasons, Murray J discussed the principles relevant to an order of indefinite imprisonment. After referring to the earlier authorities his Honour said:

"The result was to make it plain that the exercise of such a power was to be regarded as of an exceptional character, effectively confined to cases where it was clearly established that the offender was so likely to commit further crimes of violence (including sexual offences) that he or she would constitute a constant and continuing danger to the community, justifying the offender's indefinite detention."

15 In this case, when sentencing the applicant the learned Judge said:

"These offences all occurred on the one night and the relevant facts are as follows: at about 11.00 pm on 16 January 1998 you went to the complainant's home in Bassendean and I accept as stated in your video record of interview, that your initial intention was to steal money. However, when you walked beside the house and looked inside a window, you saw the complainant, who was a 30-year old woman sitting alone in her lounge room. I infer from the facts that you then formed an intention to sexually assault the complainant. You remained outside the backdoor until the complainant went to open the rear door to let her dog out and when she did this she found you standing there with the flyscreen door open. You then grabbed the complainant by the throat with your left hand; you pushed her back into the house, holding her mouth closed with your other hand. You pushed her into the lounge room and while doing that you threatened to kill the complainant if she did not keep quiet. You then pushed her on to a sofa where you pulled her pants down to her ankles. You then lowered your own shorts and you penetrated her vagina with your penis without her consent. After withdrawing from the complainant you went into the kitchen and waited for the complainant to come into the kitchen. You then had a conversation with her when you apologised for what you had done and you then left. ... Throughout this offence there were two young children in the house asleep in another room.

Having left that house in Bassendean you then went to another house in Bassendean and at 1.15 am on the following morning you went into the second complainant's house and again your intention was to break in and steal money. You entered through an unlocked rear door and went to the lounge room where you found the complainant asleep on the lounge. She woke up and she attempted to run past you but you took hold of her by the head and neck and you restrained her. She then struggled free and kept running outside towards the rear door and out through the rear door. During the struggle you held onto her arm and told her not to scream. You again took her by the head and neck but she again struggled free. It was at this stage that for some reason she recognised you, not as an acquaintance but as a person she had seen around the area, and after telling you that, you then fled."

16 Section 98 of the Western Australian Sentencing Act was considered in Thompson v The Queen [1999] HCA 43; (1999) 73 ALJR 1319. At [18], Kirby J observed:

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

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

18 The question then is, in the words of Hayne JA, is this one of the "few (perhaps very few) cases" where an indefinite term should be imposed, or, to refer to the words of the Justices of the High Court in Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611 at 618 is it one of the "very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm".

19 In this case, the learned sentencing Judge referred to the fact that from his birth until the age of 7 years, the applicant had lived in a foster home where he received little in the way of emotional or physical care. He had later returned to his natural parents where he entered an environment where there was regular domestic violence as well as an excessive consumption of alcohol. His father died of alcoholic complications when the applicant was approximately 13 years of age. His Honour noted that between the ages of 10 and 18 years the applicant had frequent appearances in the Children's Court in this State and in South Australia. He had been dealt with for a wide variety of offences which mostly involved property or motor vehicles and also the occasional assault. His Honour referred to the fact that in Western Australia the applicant had committed a number of offences which had resulted in sentences of detention in the Geraldton Children's Court on 24 March 1990. That was the day after his release from Riverbank following previous terms of detention. He had committed seven serious offences, being five counts of aggravated sexual assault, one count of deprivation of liberty and one count of armed robbery. His Honour said:

"The essential facts of those offences are that you entered the complainant's house whilst armed with an iron bar or similar weapon. After forcing the complainant to a bedroom and stripping her of her clothing, you penetrated her vagina with a finger. You then made her lie on her stomach and first penetrated her anus with your finger and then attempted to penetrate her anus with your penis. Following that you robbed the complainant of a small amount of money at the time striking her with a weapon that you had brought with you and finally you bound her by her hands and legs and gagged her before leaving the house."

20 His Honour noted that for those offences the applicant had been dealt with in the Children's Court and sentenced to a term of 4 years' imprisonment. He had been released from Karnet Prison Farm on 21 January 1993. Not long afterwards, on 5 February 1993, he had committed some further serious offences, being two counts of burglary, one count of child stealing and one count of assault occasioning bodily harm. On that occasion he had held a knife to the throat of a man and demanded that he "should take his 12-year-old daughter". He had forced the man at knifepoint to his daughter's bedroom. The applicant abducted the young girl, taking her with him to a bushy front block on the opposite side of the road. After a struggle, the girl had been freed by a neighbouring householder who had become aware of the commotion.

21 When the Judge sentenced the applicant for the offences referred to in the preceding paragraph, he specifically found that at the time he had been disturbed the applicant had been preparing to sexually assault the girl. For those offences the applicant received a sentence of 5 years' imprisonment. He was ruled ineligible for parole. After serving that term of imprisonment he was released on 3 January 1997. He had then committed the present offences, nearly 12 months later.

22 It can be seen from the recitation of the facts concerning the applicant's previous offences that the present offences had some similar characteristics to the earlier offences.

23 The learned sentencing Judge noted that the applicant had a past history of solvent abuse, as well as a chronic and continuing problem with over use of alcohol. His Honour said that there was a very strong link between the applicant consuming alcohol and committing serious offences. He noted that a specialist report by a psychologist had revealed that there had been no detectable psychiatric illness in the past. It was considered very likely that the neglect, deprivation and abuse which the applicant had suffered as a child had brought about suppressed feelings of anger and hostility. His Honour said that whilst sober the applicant was apparently able to exercise control over his feelings, but when he was drunk he was unable to exercise that control. The consequence was that he committed violent sexual offences.

24 When sentencing the applicant, the learned sentencing Judge said that although he had been assessed to be at a considerable risk of re-offending in a similar manner, he was also considered suitable for inclusion in the Ministry of Justice's Sexual Offenders' Treatment Program. A pre-sentence report had revealed that the applicant had been relatively open in discussing his sexual obsessions and had expressed a motivation to receive treatment. His Honour said:

"... if the treatment is to be successful it will have to address not only your sexual offending but also your misuse of alcohol. The pre-sentence report understandably does not offer any opinion as to the likely outcome of such treatment."

25 In sentencing the applicant, his Honour allowed for what he described as the significant mitigating factor of his pleas of guilty as well as environmental and background factors.

26 When discussing the question of a possible indefinite imprisonment order, his Honour said:

"Before making such an order I need to be satisfied that exceptional circumstances apply and in particular when otherwise released from imprisonment, the imprisonment just imposed, you would constitute a danger to society in terms of the degree of risk of your reoffending.

There can be no doubt that the present offences are exceptionally serious."

27 His Honour then discussed the facts of the offences and continued:

"In my view the conclusion to be drawn from all of this is that your violent and sexual offending tends to be an impulsive and opportunistic by-product of what otherwise would simply be burglaries. Another common thread to be found amongst the facts of your past offences is an unusual degree of persistence beyond the initial offending."

28 His Honour further discussed the earlier offences and said: "This suggests to me that you must have some unusual thought processes whilst offending." He noted that the applicant had spent most of his adult life in prison but to date that had not deterred him from further offending.

"While there is some hope on the horizon in terms of your willingness to participate in the Sex Offenders' Treatment Program, it is not possible to know whether or not this treatment will be successful. In my view there is a very significant risk that if you are released at the expiration of the terms I have just imposed, you will continue to offend in a similar manner to before. I also consider that the gravity of that risk is of such a magnitude that you will be a danger to society if released from prison at the expiration of the nominal terms I have just imposed. Accordingly and for all of those reasons, I have decided that I should order that you be imprisoned indefinitely. I make this order in the knowledge that if it does turn out that your participation in Sex Offenders' Treatment Program proves to be successful, then there is no reason why you should not be promptly released on parole soon after the commencement of the indefinite imprisonment."

30 In my view the learned Judge did not take sufficient account of what has been said in the relevant authorities such as Chester, Moffatt and Thompson concerning the power to impose an indefinite sentence. It does not appear from his Honour's reasons that he considered whether this was one of the "few (perhaps very few) cases" or, "very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm". Error is therefore revealed and the issue then is whether an order for indefinite imprisonment should have been made.

31 Some of the matters revealed by the reports include the fact that at all times the applicant has acknowledged full responsibility for his offences, which appear to have resulted to some extent from excessive alcohol abuse. The applicant was said to have been "relatively open and co-operative during interview" with the psychologist. He was said to have been open in his discussion of sexual offending.

"He showed remorse, embarrassment and distress over his lack of understanding about this form of his offending behaviour. Furthermore he did not attempt to minimise his role in offending, blame his victim or justify the sexual assault in any way."

32 The applicant apparently does not suffer from an illness requiring psychiatric intervention. He has expressed a motivation towards treatment. He expressed a confusion about the triggers associated with his offending but did not under represent his role or attempt to find excuses for his behaviour. He expressed an interest in inclusion in the Ministry of Justice Sexual Offenders' Treatment Program. It was stated that:

"He appears to have the capacity to be incorporated in such treatment in that he accepts responsibility for offending, is able to discuss personal details relatively openly and has some ability to look inwardly and analyse triggers related to offending."

33 In the summary of the relevant report it is said:

"It is likely that the neglect, deprivation and abuse he received at the hands of his foster family in his formative years are linked to suppressed feelings of anger and hostility. His usual control over these feelings is likely to be reduced when he is drunk and in my opinion the consequences are violent or sexual offending."

34 The psychologist considered that the applicant was suitable for treatment for the issues relating to his sexual offending, "which can be offered to him in the prison system prior to release."

35 In my view and in the sense discussed by the High Court Justices in Chester, this was not one of the very exceptional cases where the exercise of the power was demonstrably necessary to protect society from physical harm. Sadly there are offenders of this type in our society. It is generally the responsibility of the courts to sentence them for their offences. In the "very exceptional" case where an order for indefinite imprisonment is made, it is the Governor and not the Court who decides on the length of the incarceration.

36 The applicant has expressed an inclination to take steps to improve himself. In his sentencing remarks his Honour recognised that the applicant had expressed a motivation to receive treatment. His Honour did not come to the conclusion that the treatment would probably not be successful.

37 I would grant leave, allow the appeal and set aside the order for the indefinite sentence. The other grounds of appeal were abandoned or not argued. But in any event, I would not interfere with the length of the finite sentence or his Honour's decision not to grant parole.

38 MURRAY J: In this matter I have had the advantage of reading in draft the reasons for decision published by Wallwork J. I agree with his Honour that leave to appeal should be granted, the appeal should be allowed and the order made for the applicant's indefinite imprisonment following completion of the service of the aggregate term of 12 years imprisonment should be quashed.

39 This, of course, is yet another case which calls into question the application by a sentencing Judge of the Sentencing Act 1995 (WA) s 98. The section has been recently discussed in a number of cases in which appellate courts have sought to provide guidance to sentencing Judges in respect of its operation. Apart from cases having application only to the particular sentencing process challenged on appeal, discussion of the relevant principles in relation to the operation of the section may be found in such cases as Jones v The Queen, unreported; CCA SCt of WA; Library No 980246; 8 May 1998 per Murray J, with whom Walsh and Wallwork JJ agreed, at 10 - 17, R v Lowndes (1997) 95 A Crim R 516 per Malcolm CJ, with whom Pidgeon and Walsh JJ agreed, at 522 - 524, on appeal Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, and Thompson v The Queen [1999] HCA 43; (1999) 73 ALJR 1319.

40 It is unnecessary for present purposes to canvass what was said about the relevant principles in those cases except that the fact that, as the section itself makes clear, it is to be regarded as conferring a power to be used in the exercise of discretion only in exceptional circumstances, carries with it the consequence that an order under the section should only be made in a clear case on the basis of cogent materials. The pre-condition for the making of an order under s 98 is that the court is satisfied on the balance of probabilities, having regard to such evidence as it thinks fit, that when the offender would otherwise be released from custody in respect of the finite sentences imposed upon the offender, he or she would be a danger to society or part of it because of the risk of the commission of other indictable offences: s 98(2)(3)(b). As I said in Jones at 12:

"Because of my view that the section is worded in such a way as to convey that the power it seeks to confer is of an exceptional character, it would seem to me to follow that the probability of danger would need to be demonstrated by clear evidence of the risk that the offender will commit further offences upon release."

"As Hayne JA pointed out in Moffatt [1998] 2 VR 229 at 255, it is fundamental that the power to order indefinite imprisonment should be sparingly exercised and then only in clear cases. I would add that it is fundamental that it should only be exercised following the most careful hearing at which all relevant material is before the Judge or Judges responsible for making such an order. It is not something to be hurried. It is not a course to be dealt with on materials known to be incomplete or otherwise insufficient."

41 In this case, as Wallwork J has pointed out, there was material in the applicant's criminal history which was a cause for deep concern as to his future offending. That concern was registered by the learned sentencing Judge who reviewed that history and compared the previous serious offences with those for which he was to sentence the applicant. As has been seen, this latest group of offences committed on the night of 16 and 17 January 1998 when the applicant was aged 25 years resulted in the imposition on 16 June 1998 of sentences aggregating 12 years imprisonment, a term which is not now contended to be excessive, but which was imposed without eligibility for parole, thereby resulting in the applicant being required to serve a period of at least 8 years. Therefore, the question in terms of s 98 was whether, when the applicant came to be released at the age of 33 years, he would continue to be such a danger to society as to warrant the exercise of the discretion to order his indefinite imprisonment.

42 As to that, the evidence before his Honour consisted of a very good report by a psychologist attached to the Sex Offender Treatment Unit of the Ministry of Justice. Aspects of that report have been referred to by Wallwork J. It was the psychologist's opinion that without addressing the applicant's alcohol dependence and without treatment in respect of his violent sexual offending the applicant would continue to present a high risk that he would re-offend in future. But it was reported that the applicant himself understood that there was a link between his consumption of alcohol and his offending behaviour, although he was confused about the triggers which prompted his sexual offending. Nonetheless, it is said that he was open to discuss what caused him to offend and he expressed an interest to be included in the Sex Offenders Treatment Programme. The psychologist reported that he appeared to have the capacity to be provided with such treatment "in that he accepts responsibility for offending, is able to discuss personal details relatively openly and has some ability to look inwardly and analyse triggers related to offending." So the reporting psychologist's conclusion was that he was suitable for inclusion in treatment programmes which could be offered in prison.

"While there is some hope on the horizon in terms of your willingness to participate in the Sex Offenders Treatment Programme, it is not possible to know whether or not this treatment will be successful. In my view there is a very significant risk that if you are released at the expiration of the terms I have just imposed, you will continue to offend in a similar manner to before. I also consider that the gravity of that risk is of such a magnitude that you will be a danger to society if released from prison at the expiration of the nominal terms I have just imposed.

Accordingly, and for all those reasons, I have decided that I should order that you be imprisoned indefinitely. I make this order in the knowledge that if it does turn out that your participation in the Sex Offenders Treatment Programme proves to be successful, then there is no reason why you should not be promptly released on parole soon after the commencement of the indefinite imprisonment."

44 It is in this passage, in my opinion, that the miscarriage of discretion by his Honour is revealed. On the evidence before the court, no more could be said than that it was not presently possible to know whether the treatment to be offered to the applicant would be successful or not. It was known, however, that if it was successful, the risk of further offences would be considerably reduced and there was nothing before the court to indicate positively that the treatment might be unsuccessful. In those circumstances it could not be said what the risk might be when the applicant was ultimately to be released in 8 years. The conclusion negates the capacity to be persuaded on the balance of probabilities that upon release the applicant would be a danger to society so as to justify the exceptional measure of indefinite imprisonment.

45 For that reason, in my view, that order made by his Honour must be set aside.