_R v Buckley_

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] MUIR JA: The applicant was sentenced on 11 September 2003 in the District Court to an indefinite sentence pursuant to section 163 of the Penalties and Sentences Act 1992 (Qld) for five counts of rape, one count of burglary, one count of indecent assault and one count of grievous bodily harm. In his sentencing remarks the learned sentencing judge, as he was required to do by s 163(2) of the Act, stated that the term of the sentence he would have imposed for each count of rape had he not imposed an indefinite sentence was 22 years.

[3]

[2] The applicant was refused leave to appeal against these sentences by this court but subsequently appealed successfully to the High Court[1] which ordered that the matter be remitted to this court for further consideration in accordance with its reasons.

[4]

[3] Those reasons identified two factual misunderstandings and one error of law at first instance which, it was held, required this court to set aside the sentence and re-exercise the sentencing discretion. After referring to the quite exceptional nature of the power to impose an indefinite sentence, the High Court examined in its reasons the character and purpose of indefinite sentences under s 163 as follows:

[5]

"40. A proper exercise of the power involves an understanding of why it is exceptional, and careful attention to the considerations that call for its exercise. The nominal sentence required by s 163(2) of the Act is significant not merely for purposes related to the review provisions of Pt 10. It has an important role in the decision to be made under sub-ss (3) and (4) of s 163. In particular, in considering the risk of serious harm to members of the community if an indefinite sentence were not imposed, a sentencing judge is required to consider the protective effect of the finite sentence that would otherwise be imposed.

[6]

41. In this case, the prosecution argued, at first instance, for a life sentence. An examination of the sentencing judge's reasons indicates that he rejected that proposal mainly because of the pleas of guilty. On appeal, it was not argued that he erred in considering a nominal sentence of 22 years to be appropriate. Having identified 22 years as an appropriate nominal sentence, the learned judge was then required to consider, and explain in detail (s 168(1)), why a proper exercise of sentencing discretion called for the imposition of an indefinite sentence rather than such a lengthy finite term.

[7]

42. Serious violent offenders will commonly present a danger to the community. Protecting the community may be one of the purposes of the imposition of a lengthy custodial sentence. Such custodial sentences remain the norm for the punishment of offenders convicted of serious offences of violence. Indefinite sentences are not the norm. Part 10 of the Act proceeds upon the basis that there may be certain cases where the extraordinary step of imposing an indefinite sentence may be justified as a response to the risk of serious danger to the community. The risk to be weighed is the risk "if an indefinite sentence were not imposed" (s 163(4)(d)). Where the appropriate finite term, according to ordinary sentencing principles, is 22 years, then it is necessary to consider whether the protective purpose in contemplation could reasonably be met by such a term. If it were otherwise, the consequence would be the banalisation of indefinite imprisonment." [2]

[8]

[4] The court then discussed considerations, both peculiar to this case and of a general nature, which were relevant to the exercise of the discretion under s 163:

[9]

"43. This is a case in which, on the available evidence, a sentencing court could properly have reached a conclusion that Pt 10 of the Act should be applied. On the other hand, there were important considerations of proportionality militating against such a conclusion. These included (1) the absence of any major criminal convictions, notably for any acts of violence, prior to the subject offences; (2) the appellant's pleas of guilty; (3) the fact that the subject charges, although extremely serious, all related to events that occurred within an interval of nine months and involved three happenings. The details of the sexual activities with animals were unproved. They had never been the subject of any criminal charges under the Code[15]. The appellant was not to be punished additionally in respect of those events[16]. Any feelings of distaste or revulsion concerning such activities should not enter into the sentencing process. The reasoning of the sentencing judge did not deal with the issues, including issues of predictability, involved in deciding why a sentence of 22 years should not have been imposed, having regard to relevant sentencing considerations, including the need to protect the community. One of the matters of particular difficulty in a case such as the present is the uncertainty that is necessarily involved in estimating the danger to the community of a person who, on any view, will be incarcerated for such a long time. The operation of the parole system, and the possibility of treatment while in prison, are matters that call for close attention. In a particular case, it may be that the system of review under Pt 10 provides the only appropriate method of relating the interests of the community to the requirements of justice to an individual offender. Nevertheless, the protective potential of the ordinary sentencing regime needs to be examined first and most closely before deciding to depart from it. Another difficulty raised by the present case, addressed in some detail by the psychiatrists, but referred to only briefly and without analysis in the reasons for sentence, is the relationship between the appellant's paraphilia and the level of risk that he would be likely to present in, say, 20 years time."

[10]

[5] In order to describe the circumstances surrounding the rape offences, it is convenient to quote a passage from the reasons of Holmes J in this court on the application for leave to appeal[4]:

[11]

"[13] The applicant committed the offences for which he was sentenced between 6 March 1999 and 21 January 2000. The first two rapes were committed on a 20 year old woman who was walking alone to her home in Dalby at about 4am. The applicant grabbed her from behind and forced her to the ground. He then used the strap of her shoulder bag around her neck to choke her and force her to an area where he anally and vaginally raped her, causing what was described in a medical report as "major anal trauma" and other less serious genital injuries. At the end of the assault he threatened to kill the complainant if she moved as he left.

[12]

[14] The second series of assaults was committed on a 67 year old woman. At about 5am one morning, the applicant broke a window to get into the bedroom where the victim was sleeping. He tried to sodomise her inside the bedroom and then dragged her out of the house into the backyard, where he attempted to put his penis into her mouth. He then sodomised her while placing his fingers in her vagina. Those events gave rise to rape and indecent assault charges.

[13]

[15] The third set of offences was committed on a 15-year-old girl whom the applicant attacked as she walked alone in a Toowoomba city street at about 1am. He chased her, and then knocked her to the ground from behind, causing her in the fall to suffer a fractured femur. Notwithstanding her plea that she thought her leg was broken, he raped her vaginally and anally. At one stage when he thought she had looked at him he slapped her on the face and head."

[14]

[6] Each of the offences, and in particular the first and third, were protracted and accompanied by the infliction of severe pain on the terrified victim.

[15]

[7] The applicant, who was born in 1971, had a limited prior criminal history. He was convicted on two counts of assault occasioning bodily harm in 1995 and fined $900. In 1989 and 1995, he was convicted of being in an enclosed yard without lawful excuse. The 1989 offence was committed by the applicant when indulging his voyeuristic tendencies.

[16]

[8] Three psychiatrists, Doctors Yellowlees, Kingswell and Moyle, gave evidence in the sentencing hearing. The bulk of their evidence was in the form of reports but each psychiatrist also gave oral evidence. Also before the sentencing judge was a report dated 30 November 2000 of another psychiatrist, Dr Fama, who examined the applicant on instructions from the Mental Health Tribunal. In order to prepare his report he had recourse to witness statements, bench charge sheets, correctional medical records and a report of 18 August 2000 by Dr Moyle. Dr Fama diagnosed the applicant as having an "emotionally unstable personality, impulsive type, chronic dysthymia and alcohol dependence syndrome". He concluded his report by observing:

[17]

"It would, however, be misleading for the court to gain any impression that [the applicant's] psychiatric impairments - however variously classified - might be amenable to any ready treatment. [The applicant's] dangerousness to the community would be assessed better by his actual record of offending than by regard to his theoretical psychopathology."

[18]

[9] In his report dated 9 January 2001, Dr Yellowlees diagnosed the applicant as suffering from anti-social personality disorder, sexual sadism in the form of zoophilia, alcohol abuse and voyeurism. He explained the bases for the diagnoses of sexual sadism, zoophilia and voyeurism as follows:

[19]

"The applicant has regularly performed sexual acts on a variety of animals since the age of 15, and admitted to killing some of these animals prior to the sexual acts, which appear to have frequently been otherwise quite violent . . . in his interview with me, [the applicant] complained that the rapes with which he is charged were very similar to some of the sexual acts he has had with animals in the past, particularly in terms of the power that he felt over the victims . . . [the applicant] admitted that from the age of about 15 he has been a regular voyeur, and indicated that he has been found guilty of related offences in the past."

[20]

[10] At the conclusion of his report he expressed the opinion that the applicant was potentially extremely dangerous to the community and wrote that:

[21]

"Particularly when drunk, he appears to be unable to restrain himself from very severe violent acts, and is even unable to discriminate during these acts as to whether his victims are human or animal, because he has a history of violence to both groups, and admits to having similar feelings of power and anger during these episodes . . . individuals such as [the applicant] with severe paraphilias associated with a long history of violence, tend to have a very poor prognosis, and recommit offences and remain a significant danger to the community, until they are very considerably older, and past the normal ages when their libido is particularly overt [20-45 years]."

[22]

[11] In a report dated 28 August 2003 Dr Kingswell gave a detailed critique of Dr Moyle's report of 29 July 2003 in which he described the report as "disorganised, repetitive and internally inconsistent." In particular, Dr Kingswell took issue with Dr Moyle's failure to diagnose sexual sadism and anti-social personality disorder or psychopathy. Dr Kingswell expanded on these criticisms in his evidence-in-chief.

[23]

[12] In relation to the applicant's risk of recidivism Dr Kingswell said in his evidence-in-chief that:

[24]

"For the individual it is very difficult to predict an outcome . . . we certainly know that Mr Buckley fits into a high risk group. What that means for him as an individual is very difficult to be particularly precise about."

[25]

[13] In cross-examination, in relation to the applicant's risk of recidivism, he said that, "He is clearly in a high risk group". He conceded that the applicant's risk of re-offending at the time of the sentencing hearing may well be markedly different from the risk he would pose in 15 years time. In response to the proposition that it would be "much more comforting in terms of assessing someone's risk of re-offending if during the course of a sex offender treatment program there was evidence of them [sic] actively getting involved in group discussions and therapy and so forth" he responded, "It would be a hopeful indicator, yes."

[26]

[14] Three reports of Dr Moyle were in evidence on the sentencing hearing. The sentencing judge preferred the evidence of Doctors Kingswell and Yellowlees to that of Dr Moyle. He observed the three psychiatrists give their evidence and read and heard the criticisms of Dr Moyle's reports. Those criticisms do not appear to have been rebutted successfully by cross-examination or oral evidence. The sentencing judge was thus entitled to accept the evidence of the other psychiatrists in preference to that of Dr Moyle and no reason was advanced in argument on this hearing as to why the sentencing judge's findings in this regard should not be accepted.

[27]

[15] On the hearing of this application, the applicant's counsel sought leave to tender a further report of Dr Moyle dated May 2007 and three reports of a psychologist dated respectively 29 June 2006, 15 February 2007 and 5 September 2007. Counsel for the respondent objected to their admission on the basis that they were not before the sentencing judge. Dr Moyle's further report, in substance, contains a re-presentation of opinions already proffered by him in his earlier reports and some further opinions which could have been given at the sentencing hearing on the basis of information then available. The psychologist's reports, although touching upon the psychologist's interviews with the appellant after his incarceration address, in part, matters which have little relevance to the matters addressed under s 163 of the Act. The reports also contain opinions which could have been advanced on the sentencing hearing on the basis of the information then available.

[28]

[16] The further expert opinion evidence, if admitted, would in my view be of little or no benefit to this court. It is doubtful also that the material is admissible in accordance with conventional principles.[5] Having regard to the conclusion I have reached as to the proper exercise of the sentencing discretion, the exclusion of the further reports will not affect the outcome of the application and thus cannot result in any miscarriage of justice.[6] I would therefore uphold the objection to the admission of the reports.

[29]

[17] Before imposing an indefinite sentence, the court is required by s 163(3) of the Act to be satisfied:

[30]

"(b) that the offender is a serious danger to the community because of -

[31]

(i) the offender's antecedents, character, age, health or mental condition; and

[32]

[18] It is provided in s163(4) that in determining whether the offender is a serious danger to the community, the court must have regard to-

[33]

"(a) whether the nature of the offence is exceptional; and

[34]

(b) the offender's antecedents, age and character; and

[35]

(c) any medical, psychiatric, prison or other relevant report in relation to the offender; and

[36]

(d) the risk of serious physical harm to members of the community if an indefinite sentence were not imposed; and

[37]

(e) the need to protect members of the community from the risk mentioned in paragraph (d)."

[38]

[19] The ability of the Attorney General, prior to the release of a prisoner, to make an application for a permanent detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) is a relevant and highly cogent consideration on this application. The relevance of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) was properly acknowledged by the respondent's counsel. However, the bearing of that Act on the exercise of the discretion under s 163 does not appear to have been the subject of argument before the sentencing judge, on the original hearing in this court or in the High Court. It is convenient to mention also that the nominal sentence of 22 years arrived at by the sentencing judge was not challenged on this hearing or on the initial hearing in this court or in the High Court.

[39]

[20] The necessity for an indefinite sentence is to be considered in the light of the protective effect of a finite sentence.[7] It was pointed out in the High Court's reasons that having regard to duration of the nominal sentence, "estimations of future risks were being undertaken in a temporal context that necessarily gave rise to substantial uncertainty."[8] That uncertainty was not a matter which escaped the attention of the psychiatrists who gave evidence on the sentencing hearing. The evidence, not surprisingly, supports the conclusion that the prospects of accurately predicting the likelihood of a prisoner's re-offending once released will be better towards the end of the prisoner's sentence than at the beginning. The psychiatric evidence and other materials before the sentencing judge also justify the conclusion that the risk of the applicant's re-offending is likely to decline over time.

[40]

[21] There is expert psychiatric evidence that participation in a sexual offenders' treatment program, depending on the outcome, may have a bearing on recidivism, as may the existence of genuine remorse.

[41]

[22] Plainly, over the life of a 22 year sentence, reduced by appropriate remissions, there is considerable potential for physical and mental changes in the applicant which may bear on his capacity or propensity to re-offend. He was almost 32 at the time of sentencing and is likely to be well into his 40's when released. Nor should it be assumed that over this lengthy period medical science will not make advances in relevant therapies, medications and other forms of treatment.

[42]

[23] Having regard to these considerations and the Attorney General's ability, should it be thought that the applicant represents "a serious danger to the community"[9], to seek either a continuing detention order or a supervision order before the applicant's release into the community, I do not consider "the extraordinary step of imposing an indefinite sentence" to be justified. It is obviously preferable that any assessment of the risk posed to the community by the applicant on his release be made closer to his anticipated release date on the basis of up-to-date assessments of his mental and physical condition having regard to technologies and treatments then available.

[43]

[24] For the above reasons I would allow the application for leave to appeal, allow the appeal to the extent of setting aside the sentences imposed in respect of all counts on the indictment, but not the declaration in respect of pre-sentence custody. For each offence of rape I would order that the applicant be imprisoned for 22 years. For counts 3, 5 and 6 (counts of breaking and entering at night with intent to commit an indictable offence, unlawful and indecent assault and grievous bodily harm) I would order that the applicant be imprisoned for 5, 5 and 4 years respectively. The term of imprisonment imposed for count 6 is that imposed by the sentencing judge. No argument was advanced on the hearing of the appeal as to the appropriate sentence for each of these counts should an indefinite sentence not be imposed: the sentences having no practical effect in light of the sentences for rape. I would order that all such terms be concurrent with each other and with the other terms of imprisonment imposed on 11 September 2003.

[44]

[25] FRASER JA: I agree with the reasons of Muir JA and the orders proposed by His Honour.

[45]

[1] Buckley v R [2006] HCA 7; (2006) 80 ALJR 605

[46]

[2] Buckley v R [2006] HCA 7; (2006) 80 ALJR 605 at 612, 613

[47]

[3] Buckley v R [2006] HCA 7; (2006) 80 ALJR 605 at 613

[48]

[4] R v Buckley [2004] QCA 148

[49]

[5] See R v Maniadis [1996] QCA 242; [1997] 1 Qd R 593 at 597