R v Davies [2005] VSCA 90

R v Davies [2005] VSCA 90 - VSCA 2005 case summary — Zoe

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1 On 12 December 2002, after a trial lasting almost three weeks, the applicant was convicted in the County Court at Melbourne of two counts of abduction and two counts of rape. He was sentenced to be imprisoned for an indefinite term with eleven years as the non-parole period that would have been fixed if a fixed term of imprisonment had been imposed. He now applies for leave to appeal against conviction and sentence.

2 The trial judge described the offences as appalling and abhorrent to the general community, and that does not overstate the position. The victims were two six year old girls and the offences consisted of physically detaining and digitally raping them as they played on a Saturday afternoon in the playground of a primary school in a country town.

3 The offences occurred on Saturday 19 May 2001. The two girls and the eight year old sister of one of them walked together to a local milk bar, bought some sweets and then walked to the school in order to play on the playground equipment. On their way from the shop to the school they stopped at a garden nursery located at the intersection of the highway which ran through the town. They looked at some flowers and continued up the street to the school grounds. The applicant saw them as they moved towards the school. He entered the school grounds shortly after they did and sat at a wooden picnic table near to where they were playing, and he smiled at them. After some time the eight year old girl left the two younger girls and went off to the toilet.[1] While she was away in the toilet the applicant took the two six year old girls forcibly by the shoulder, or by the hand, and compelled them to accompany him into one of the school classrooms. Those actions comprised the substance of the abduction counts (counts 1 and 2).

4 The applicant then told one of the little girls to sit down and wait, which she did, and pushed the other little girl to the floor, pulled down her pants and digitally raped her (count 3), and when he had finished with the first little girl, he digitally raped the second little girl (count 4). As he did so, the first victim ran from the room and called for her eight year old sister, and the eight year old entered the classroom in response to the call and yelled at the applicant. At that he got up, left the classroom, jumped the front fence of the school and disappeared.

5 The girls left the school and sought help. The two six year old girls were in a state of considerable distress. One of them could scarcely speak. Her hymen was lacerated and she bled considerably from the vagina. Medical opinion evidence given at the trial was that significant force must have been applied in order to cause her injuries.

Grounds of appeal against conviction

6 The grounds of appeal against conviction are that:

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It is convenient to deal with them in turn.

Evidence of refusal to participate in an identification parade

7 The judge gave detailed reasons for his ruling to allow the Crown to adduce evidence of the applicant's refusal to participate in an identification parade. They included reference to the decision of the Court of Criminal Appeal in R. v. Clune[2]; the decision of the Canadian Supreme Court in Marcoux and Solomon v. The Queen[3]; and the decision of the New South Wales Court of Criminal Appeal in McCarthy and Ryan v. R[4]. Based upon those authorities, his Honour concluded that it is usually a proper exercise of judicial discretion to allow such evidence to be adduced - not as indicating guilt but as explaining why the Crown did not use an identification parade - and that, because the practice of holding identification parades is now well known within the community, the Crown should ordinarily be permitted to adduce evidence of refusal to participate without waiting until the accused raises some issue about such a parade. His Honour also considered that where such evidence is allowed to be given, the judge should give a direction as soon as the evidence is given, and if necessary again in the summing up, to make it clear to the jury that the accused had a fundamental right to decline to participate in an identification parade and that his exercise of that right must not lead to any conclusion by the jury that he is guilty. Consistently with the ruling, his Honour gave just such directions both at the time of the tender of the evidence and in the course of the charge.

8 It was argued on this appeal that it is wrong in principle to allow the Crown to adduce evidence of refusal to participate in an identification parade unless the accused has first raised an issue about the omission of an identification parade. It was said that the adoption of that course goes further than the decisions in R. v. Clune and Marcoux and Solomon v. The Queen and that it is unfair. It was conceded that it does no more than track the decision in McCarthy and Ryan v. R. But it was contended that the decision in that case was wrong or at least ought not be followed in this State.

9 We accept that the practice endorsed in McCarthy and Ryan v. R. may go further than was contemplated in R. v. Clune, and that it does goes further than was contemplated in Marcoux and Solomon v. The Queen[5]. Indeed in the latter case Dickson, J. made plain that he did not consider that evidence of the offer and refusal of a line-up would ordinarily be relevant and that it would not become relevant unless the omission of an identification parade were first put in issue. His Lordship said that:

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12 With respect we agree. Accordingly we consider that the learned trial judge was right to rule as he did. We add that his Honour's clear directions to the jury left no doubt that the evidence of refusal to participate in an identification parade did not suggest and was not to be interpreted as suggestive of guilt.

Evidence as to the compilation of the video identification parade

13 The second ground of appeal concerns evidence given over objection by two police officers, Detective Sergeant Tierney and Senior Constable Paterson, as to the steps which were taken to make the video identification procedure as fair as reasonably possible. The substance of that evidence, which is lengthy, is that the police took considerable care to assemble a parade of persons with physical attributes similar to the appellant and an absence of distinguishing features. It is contended on behalf of the applicant that the evidence was irrelevant and that it prejudiced the applicant by obscuring the real question of the reliability of the video identification parade. We do not agree.

14 Where identification represents any significant part of the proof of guilt of an offence, and it is disputed, the judge must warn the jury as to the dangers of convicting on the basis of such evidence and instruct the jury as to the factors which may affect their consideration of that evidence in the circumstances of the case.[8] That is because it is only by drawing those matters to the jury's attention that they are likely to avoid the risk of placing more credence upon particular identification evidence than its quality warrants. Equally, however, if the quality of an identification process is such as to support the accuracy of its results, the quality of the process is relevant to the assessment of the identification and therefore evidence of the quality is relevant and admissible.

15 It may be that the technique of the standard form of identification parade is now so well known that a jury needs little if any additional information in order to assess the results of an identification parade in a particular case. General knowledge of the technique coupled with appropriate directions as to any shortcomings may be all that is required. But that is not the case with video identification parades.[9] Without explanation and therefore evidence as to what a video identification parade entails, there would be few members of a jury with a complete if any understanding of the process.

16 Of course if the identification were filmed and shown to the jury, as it was in this case, they would derive from the film some understanding of what had taken place and therefore some ability to assess it. But it can hardly be doubted that the ability to assess the process accurately would be enhanced by evidence demonstrating and thereby drawing to the jury's attention all that was involved. Indeed, in any given case the principles which inform the decision in Domican may require nothing less.[10]

17 We add that just as evidence of an accused's refusal to participate in an identification parade is admissible in anticipation of some issue being made of the omission of an identification parade, evidence as to the way in which a video identification parade has been constructed may be admissible in anticipation of some issue being made about its reliability or fairness.

18 In the result we reject the submission made on behalf of the applicant that such evidence constitutes an impermissible attempt to bolster the reliability of identification evidence. In our opinion, where such evidence has the effect of bolstering the reliability of an identification upon which the Crown relies, it can only be because in the absence of the evidence there might be some issue or doubt about the accuracy and fairness of the identification. Hence the evidence is relevant. If on the other hand, the evidence is such as to show that the identification was inaccurate or unfair, it is only fair to the accused that the jury be made aware of it.

Video tape of the identifications

19 We have referred already to the fact that a video tape was made of each of the three little girls viewing the video identification parade. Over objection, the judge permitted each of those tapes to be shown in court and identified by the relevant girl and each tape was then received as evidence of an out of court identification.[11] The applicant's third ground of appeal is that the prejudicial effect of the tapes exceeded their probative value and that the judge erred in refusing to exclude the tapes in the exercise of his Honour's discretion. Four aspects of the tapes are relied upon in support of that contention:

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21 Evidence had earlier been given on voire dire that the police said nothing to any of the victims about the contents of the video identification parade except that they wished the victim to look at the tape and pick out any one who had attacked her at the school. Thereafter there was no suggestion made that the police had done otherwise. In the circumstances we assume that the judge took the view, as we would do, that the victim's expectation that the offender would appear on the tape was no more than the sort of expectation that any victim might have upon being told by police to view an identification parade. It does not reflect adversely upon the reliability of the identification process.

22 The answer to the second point is in the content of the video tape of the video identification parade. It can be seen on the tape that each of the victims looked intently at each of the images shown and appears actively to have considered each as a possible candidate before passing to the next. That impression is confirmed by evidence given by Sergeant Hart on the voire dire.

23 As to the third point, while much was made on the voire dire about Sergeant Hart nodding to the victim after the victim pointed to the applicant's image on the video identification parade, Sergeant Hart's evidence on the voire dire was that she had done so only to let the child know that she had seen her make the selection and wished her now to go on with the remainder of the process. The judge accepted that evidence, which appears to us to be borne out by the video tape, and thereafter it was not suggested that Sergeant Hart had done anything to influence the child's selection. In our opinion there is nothing in the point.

24 The fourth point is no more persuasive. Evidence was given on the voire dire that Sergeant Hart deliberately refrained from saying anything to the victims about their selection. The object of the exercise was to make the tape speak for itself as to the actions and words of the children on identifying the image of the offender. The tapes show the victims and the confidence with which two of them selected the applicant from the array, and the victims gave evidence at the trial and were cross examined about their selections. Thereafter the judge gave the jury a comprehensive Domican direction concerning the assessment of that evidence. In those circumstances we think that it was a matter for the jury to determine the weight to be put on the identifications. Our own viewing of the video tape does not cause us to have any doubts about the propriety of their decision.

Leaving the tapes to the jury

25 The final argument advanced on behalf of the applicant was based on the decisions of this court in R. v. BAH[12] and R. v. Richard Henry Lyne[13] as to the dangers of allowing a jury to have unsupervised access to VATE tapes during the course of their deliberations. It was submitted that for the same reasons that juries should not be allowed unsupervised access to VATE tapes, the judge should not have allowed the jury to have unsupervised access to the video tapes of the victims participating in the video identification parades.

26 The danger inherent in allowing a jury to have unsupervised access to a VATE tape is that the jury will give undue weight to the complainant's evidence in chief and correspondingly insufficient attention and weight to the complainant's in-court examination in chief and evidence in cross examination. The damage exists because the VATE tape is a video tape of the complainant giving testimony in chief. But the tape of a complainant participating in an identification parade or a video identification parade is in our opinion of a different nature. It is not in the form of testimony in chief. It is the record of an event, and it is in that respect similar to other forms of video tape evidence tendered into evidence and considered by the jury during the course of their deliberations. No-one suggests that a jury should not have unsupervised access to a security video tape of an offence being committed or to a video tape of a crime scene or of an accused being interviewed. And it is difficult to see that there is any more danger of a jury giving undue weight to video evidence of an identification parade than to any other video evidence of that kind.

27 In any event, in this case counsel who appeared for the applicant at the trial made no objection to the jury having the video tapes with them in the jury room, and it is plain from the judge's charge that counsel asked the jury to look closely at the tapes in order that they might pick out what counsel submitted were factors which cast doubt upon the reliability of the identification. This was plainly not a matter of oversight but a tactical decision to emphasise an aspect of the evidence which counsel perceived might be regarded as favourable to the applicant.

28 In the circumstances, we are not persuaded that the judge was in error in allowing the jury to have access to the tapes.

Grounds of appeal against sentence

29 The grounds of appeal against sentence are that:

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31 In R. v. Carr[14] this Court held that in the application of ss.18A and 18B of the Sentencing Act, the Court must determine whether the offender was a serious danger to the community at the time of sentencing rather than make a prediction of future dangerousness at the time when the offender would become eligible for release, a view which was not questioned in R. v. Moffatt[15].

32 Section 18A(3) provides that, if the Court imposes an indefinite sentence, it must specify in its order "a nominal sentence of a period equal in length to the non-parole period that it would have fixed had the Court sentenced the offender to be imprisoned in respect of the serious offence for a fixed term". In this case, as we have said, the judge fixed a period of eleven years as the nominal sentence.

The applicant's prior criminal history

33 At the hearing of the application by the Director for an indefinite sentence, the applicant admitted a significant prior criminal history. The relevant prior convictions are as follows -

(1) At the Oakleigh Magistrates' Court the applicant was charged with an unlawful assault in the following circumstances. On 1 February 1992 the applicant spoke to a seven-and-a-half year old girl who was playing in the street with her brother. The applicant seized her around the stomach area with both hands and pulled her towards him. Her brother yelled and the applicant escaped. He was sentenced to a community based order for a period of twelve months commencing on 31 May 1993, a special condition being imposed that he continue in the Alternative to Violence Program.

(2) On 22 June 1993, while still subject to the community based order imposed on 31 May 1993 and also while subject to an intensive corrections order imposed on 21 June 1993, the applicant went to a primary school toilet block in Morwell, when a girl seven years old entered. The applicant told the girl to lie down and digitally raped her, after removing her pants and panties. The applicant had been to the Morwell Corrections Centre earlier that day in order to comply with the conditions of the intensive corrections order imposed the previous day.

(3) Then, on 1 July 1993 at another primary school in Morwell the applicant was present in the female toilet block, when a five year old girl left her cubicle. The applicant pulled down her lower clothing and then fondled the young girl around the vaginal area with his hands. Earlier that day the applicant had been performing community work as required by the Office of Corrections, in order to comply with the community based order and/or the intensive corrections order.

(4) The applicant pleaded guilty before Judge O'Shea in the Morwell County Court on 5 October 1993 to two offences, the rape which had taken place on 22 June and committing an indecent act with a child under the age of 16 on 1 July. On the count of rape the applicant was sentenced to forty months' imprisonment and on the count of indecent act with a child under 16 was sentenced to sixteen months' imprisonment, with two months to be served cumulatively on the rape count. The total effective sentence was therefore forty-two months and the applicant was required to serve a minimum of twenty-four months before becoming eligible for parole. He was later released on parole on 12 February 1996, a special condition of his parole being that he attend the Brunswick Forensic Psychiatry Centre for assessment for the Sexual Offenders' Program and to undergo such treatment as directed. The parole order expired on 30 December 1996.

(5) On 6 June 1997 the applicant at approximately 7.15 p.m. entered a primary school in Mordialloc with intention to steal and did steal. He pleaded guilty on 5 November 1997 at the Magistrates' Court at Melbourne to one count each of burglary, theft, and loitering without reasonable excuse near a kindergarten. The offence was alleged to have occurred five-and-a-half months after the completion of his earlier parole on 30 December 1996. The applicant was sentenced to a community based order for a period of twelve months. On 27 August 1998 this order was cancelled upon breach and the applicant was sentenced to six months' imprisonment.

(6) On 18 August 1998 at 9.10 a.m., the applicant entered the girls' toilets at the Sunshine Primary School and went into a cubicle. The principal of the school attempted unsuccessfully to confront him but he was later arrested by Sunshine Police. The applicant said he only went to the toilet block to urinate, without realising it was the girls' toilet, notwithstanding that it was clearly identified as such, and was frequently used by five to twelve year old girls. The applicant was at the time subject to and therefore breached the community based order made on 5 November 1997.

(7) The applicant pleaded guilty at the Magistrates' Court at Melbourne on 27 August 1998 to loitering without reasonable excuse near a school on 18 August. He was sentenced to nine months, to be served cumulatively upon the six months' imprisonment imposed the same day in relation to the breach of the community based order making a total effective sentence of fifteen months, and a non-parole period of nine months was fixed.

(8) On 28 June 1999 the applicant was interviewed as to his willingness to participate in a Sex Offender program. He said that he was not willing to do such a program whilst incarcerated, saying that he was willing to serve his full sentence, rather than participate in such a program, as it was only a short parole period. The applicant was released on 17 November 1999. Eighteen months elapsed thereafter before 19 May 2001, when the offences the subject of the present appeal were committed.

The evidence relied on by the Director in support of the application for an indefinite sentence

34 The applicant's earlier history, including assessments by parole officers and psychiatrists, was dealt with in detail in an affidavit sworn by Margarita Papadopoulos to which numerous reports were exhibited. The applicant's history was one of considerable conflict in his own family, in particular that he was sexually abused by his father from the age of eight. After the applicant was sentenced by Judge O'Shea on 5 October 1993 the applicant was first assessed for parole by Angela Sharp, a community corrections officer, on 3 May 1995. Ms Sharpe stated -

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In relation to the reports of both Dr Walton and Mr Joblin, however, the judge expressed his concern that neither Dr Walton nor Mr Joblin appeared to have been given a full statement of the applicant's past history when making their reports.

The applicant's submissions during the plea

42 Counsel for the applicant submitted to the judge during the plea that there was a considerable difference between the sexual offending history of the applicant and those of previous prisoners who had received an indefinite sentence such as Carr[16], Moffatt[17] and Anthony John Carolan[18]. The judge accepted that there was merit in this submission, and that with regard to the lapse of time as between offences in this case compared with the lapse of time in offending in the other three matters just mentioned, it could properly be submitted that Carr, Moffatt and Carolan often offended at lesser time intervals than had the present applicant. Counsel for the applicant conceded that the serious offender provisions of the Sentencing Act were applicable to the applicant but argued that the applicant should be subject to a determinative sentence pursuant to Part 2A of the Sentencing Act. It was argued that the Director was seeking to bypass such provisions in making the application for the imposition of an indefinite sentence. Reliance was placed on the principle of parsimony[19] and it was argued that if the Court was satisfied that the sentencing disposition could be adequately dealt with by way of a definite sentence, then the principle of parsimony militated against an indefinite sentence being imposed.

The judge's sentencing reasons

43 The judge was satisfied that there was a pattern to the applicant's offending, having regard to the age of his victims, their sex, the locations of the offending and the nature of the offending. His Honour found the applicant's prospects of rehabilitation were "slight at best". He noted that at the time of the commission of the rape and indecent act in June and July of 1993 the applicant was subject to a community based order and also an intensive corrections order imposed the day before the commission of the rape offence. Furthermore, at the time of the second loitering offence on 18 August 1998 the applicant was subject to a community based order imposed on 5 November 1997 for the first of the loitering (and stealing) offences. His Honour found it significant that the applicant, rather than undergo further sexual offender education, chose not to undergo such treatment as suggested by the Parole Board but chose to serve the remaining part of his parole period in custody rather than undertake such education, a view which his Honour found to be not indicative of a desire for rehabilitation or an expression of remorse. In particular his Honour said -

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The judge said that it was clear that definite sentences had failed so far to deter the prisoner from further serious sexual offending and accordingly other sentencing options needed to be considered. His Honour noted the "chilling and predatory pattern" of the applicant's offending, in particular his targeting of young girls of very tender years and his presence at primary schools in or in the vicinity of the girls' toilets, with his victims having been complete strangers. It was also noted that each of Carr, Moffatt and Carolan had pleaded guilty to all or most of the offences of which they were charged when indefinite sentences were imposed, such pleas representing some insight and remorse on their part. Accordingly his Honour found that he was satisfied that the Crown had discharged its burden of proof to the required high degree of probability that the applicant did "represent a serious danger to the community at the time of this sentencing disposition".

The applicant's submissions in this Court

44 Mr Johns for the applicant accepted that while the applicant fell within a broad interpretation of many of the factors outlined in s.18B(2) of the Sentencing Act, it was nonetheless clear from s.18B(2)(d) that a court may only impose an indefinite sentence if the risk of serious danger presented will not be abated by the imposition of a fixed term of imprisonment. He submitted that there had been insufficient consideration of s.18B(2)(d) by the judge leading to the imposition of a sentence which was manifestly excessive. Mr Johns did not submit, as we understood his argument, that any of the conditions in the enabling provisions of s.18B had not been met; rather he argued that the Court must still consider whether the case is of such exceptional rarity that an indefinite sentence should be imposed. He relied on the many expressions of opinion by senior courts, to which we will turn shortly, that the power should be exercised sparingly and only in the most exceptional case. He argued that the applicant's criminal history, his history of incarceration and of reoffending upon release were all matters which distinguished his circumstances from those of Moffatt, Carr and Carolan_._ He submitted accordingly that the applicant had not had the same "graduation of sentencing" as had Moffatt, Carr and Carolan, which would enable a court to conclude that an indefinite sentence was the only appropriate disposition. It was argued that the judge had given insufficient consideration to the periods of time between the applicant's past releases from custody and offending compared with those in the earlier cases, and that his Honour had given undue weight to the reports of Angela Sharpe and John Ryall. Mr Johns accepted that the nominal sentence of eleven years which had been fixed by the judge was appropriate, expressly accepting that a non-parole period of eleven years would not have been excessive for the offences of which the applicant was then being sentenced. He argued that the Court must turn its mind to the question whether the prisoner was so definite a risk that an indefinite sentence was necessary. He argued that the Director had not demonstrated that he must be put into the category of the most hopeless of cases. Insofar as the judge had relied on the reports of Ms Sharpe and Mr Ryall, the judge should have exercised caution, particularly when considering the opinions of non-professional persons as to the likelihood of an accused reoffending.

45 As to ground 2 it was submitted that the applicant's convictions at trial placed him for the first time in his criminal history in the category of a serious sexual offender, the effect of which was, of course, to entitle the Court to impose a sentence disproportionate to the gravity of the offence considered in the light of its objective circumstances in order to protect the community[20]. He submitted that s.5(3) of the Sentencing Act requires the Court not to impose a sentence more severe than that which is necessary to achieve a purpose or purposes for which the sentence was imposed. An indefinite sentence is, so the argument ran, the most severe sentence available in this State, its purpose being to protect the community. He argued that the serious sexual offender provisions of the Sentencing Act provided ample scope in the circumstances of this case to protect the community from the future risk of serious danger. Accordingly, the judge's sentencing remarks demonstrated that his Honour had failed to have sufficient regard to s.18B(2)(d) and s.5(3) of the Sentencing Act 1991, in that his Honour had scarcely mentioned the question why a sentence embracing the full force of the serious sexual offender provisions would be insufficient in the circumstances. He argued that the judge should have considered the question whether a lengthy head sentence and non-parole period would have met the circumstances of the applicant's offences, but had instead jumped to a disposition which was too harsh, the applicant never having previously experienced a long term of imprisonment.

The submissions of the Director as to sentence

46 The Director argued that the sentencing reasons were well structured, all relevant considerations had been taken into account, the findings were appropriate, and no error had been shown. He submitted that there was no reason to regard the serious offender and the indefinite sentence provisions as a gradation. He put it that an indefinite sentence with its nominal non-parole period might place an offender in a more favourable position than the imposition of a totally accumulated disproportionate sentence. If the applicant was to be treated as a serious offender rather than an indefinite sentence offender, the Director submitted that a higher non-parole period than the nominal non-parole period should be imposed.

47 Mr Coghlan accepted that there were some differences between the present case as against Carr and Moffatt. However, these were not in the applicant's favour. In particular the applicant had pleaded not guilty (whereas Carr and Moffatt had both done so) and had shown no remorse at all and a complete lack of insight into the effect of his actions. Secondly it was put that the applicant's actions were directed against children, to whom the law owed a special responsibility. He argued that if the relevant criteria for an indefinite sentence had been met (which was not in question) then an indefinite sentence should be imposed. The two major features relevant to the decision whether an indefinite sentence should be imposed, the Director argued, were whether the offending was exceptional in character, and whether the applicant is a serious danger to the community. He put it that a vast amount of material had been placed before the judge to justify the findings his Honour had made on both issues, and they were plainly open on that evidence. The fact that both Carr and Moffatt had pleaded guilty showed that in both cases there was at least some hope of rehabilitation, whereas in the present case the applicant had not accepted the offending and there was a high degree of probability that he would offend again. Mr Coghlan conceded, however, that each of Carr, Moffatt and Carolan had lengthy prior criminal histories, and each had spent long periods in custody. The applicant, on the other hand, had spent a total of approximately four years in prison, and his record of prior convictions was quite different from that of Carr, Moffatt or Carolan, or indeed that of McManus[21] (to which we will turn shortly) where the judge refused an application by the Director for an indefinite sentence.

Judicial authority as to when an indefinite sentence may be ordered

48 In Chester v. The Queen[22], the High Court considered a similar provision in the Western Australian Criminal Code[23], which authorised the detention during the Governor's pleasure of habitual criminals. Of this provision, Mason, C.J., Brennan, Deane, Toohey and Gaudron, JJ. said[24] that -

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The judge fixed a nominal sentence of twelve years' gaol. An appeal to this Court was dismissed.

53 The case of Moffatt[30] came before the Court of Appeal on 5 December 1996. Moffatt was then aged 28. Between November 1983 and May 1996 (a period of some twelve-and-a-half years) Moffatt had spent eleven years eleven months in custody. As Hayne, J.A. observed[31] he was at large in the community for only seven-and-a-half months in that time, and in the short intervals making up his period of freedom, he had committed four separate and serious sexual assaults. On 6 May 1985 he was convicted of assault with intent to rape with aggravated circumstances and sentenced to be detained for three years in a youth training centre. On 1 December 1986 he was convicted of aggravated rape, indecent assault and burglary. He was sentenced to eight years' imprisonment with a minimum term of six years. On 12 December 1991 he was sentenced in the County Court to five years' imprisonment for offences of assault with intent to rape and burglary and a non-parole period of three years was fixed. Finally on 7 December 1995 Moffatt was presented on three counts of rape, one count of attempted rape and one count of indecent assault and a count of false imprisonment. He pleaded guilty to the counts of false imprisonment and indecent assault, but was found guilty of the counts of rape and attempted rape after a trial. On 20 June 1996 a judge in the County Court sentenced Moffatt to an indefinite term of imprisonment, and fixed a nominal sentence of twelve years. This Court dismissed Moffatt's appeal.

54 The third case was R. v. Leslie John McManus[32]. McManus pleaded guilty in the County Court to one count of false imprisonment and two counts of attempted rape. He admitted 24 prior convictions between October 1975 and December 1990, which included a conviction for rape with aggravating circumstances (May 1987), and five convictions for rape, two counts in May 1981, one count in April 1983, and two counts in May 1987. His convictions also included counts of incest, assault occasioning actual bodily harm and unlawful assault. When dealt with in the County Court in August 1997, McManus had already received sentences of imprisonment for prior sexual offences on nine occasions over twelve years. For the offences in May 1987, he was sentenced to ten years with a minimum of eight years. Then in December 1990 he was convicted of assault with intent to rape with aggravating circumstances and other offences committed in prison upon a female industrial supervisor.

55 The Director applied for the imposition of an indefinite sentence but the County Court rejected the application. Instead the judge imposed sentences which, with cumulation, led to a total effective sentence of sixteen years' imprisonment, and fixed a non-parole period of twelve years. The Court of Appeal rejected McManus's appeal against this sentence.

56 The fourth case, R. v. Anthony John Carolan, came before the County Court in February 2000. Carolan pleaded guilty to one count of attempted sexual penetration of a child under 10, five counts of indecent act with a child under 16, two counts of sexual penetration of a child under 10 and one count of false imprisonment. The judge recorded in his sentencing reasons that Carolan had the following history of prior convictions -

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57 From these particulars it is apparent that Carolan had been sentenced to terms of imprisonment which (taking the minimum terms imposed) amounted to a total of some seventeen-and-a-half years. Upon application made by the Director, Carolan was on 25 February 2000 sentenced to an indefinite term of imprisonment and the judge specified fourteen years as the non-parole period his Honour would have fixed.[33]

The present case

58 The judge's conclusions, arrived at after a very comprehensive and careful review of the evidence, have already been set out.[34] All the conclusions of his Honour were in our view clearly open to him, and we do not doubt the conclusion that the applicant, at the time of sentencing, represented a serious danger to the community. As we have already said, counsel for the applicant did not submit that any of the conditions in the enabling provisions of s.18B of the Sentencing Act have not been met. The critical question remains whether the case is of such exceptional rarity that an indefinite sentence should be imposed. Before this question can be answered in the present case it is, we think, necessary to determine what fixed term of imprisonment would have been appropriate, having regard to the circumstances of the offences and the offender, and the material put before the Court by the Director.

59 The applicant's counsel had conceded during the plea that the serious sexual offender legislation would be activated as soon as the judge imposed a sentence of imprisonment in relation to any of the four counts. The maximum penalty in relation to counts 1 and 2, abduction, was ten years' imprisonment. The maximum sentence for rape was twenty-five years' imprisonment. In our view it would have been appropriate in all the circumstances to sentence the applicant on each of the counts of rape to nine years' imprisonment, and on each of the counts of abduction to two-and-a-half years' imprisonment. Appropriate orders for cumulation would, we think, have been to make count 3 the base sentence, and to cumulate five years of the sentence imposed on count 4 and one year of each of the counts of abduction upon the base sentence. The total effective sentence would therefore have been sixteen years.

60 The judge fixed a nominal sentence of eleven years. Before this Court Mr Johns did not challenge the nominal sentence, conceding that a non-parole period of this length was appropriate. On the other hand the Director argued that if an indefinite sentence were not imposed, he would argue for a longer non-parole period. We would have fixed a non-parole period of twelve years.

61 The question now becomes whether the circumstances were so exceptional that it was appropriate to sentence the applicant to an indefinite term rather than the fixed sentence we have said we would have regarded as appropriate in all the circumstances.

62 The applicant's history has already been considered in setting out the evidence relied on by the Director. It is rooted in considerable conflict within his own family, together with the sexual abuse of him by his father from the age of eight and also the sexual abuse suffered by his partner from her father. The effects of this abuse were noted first by Mr Bernard Healey, a clinical psychologist, in a report dated 22 September 1993. Mr Healey said that these problems had been superimposed upon a frustrating series of problems in sexual adjustment in the applicant's relationship with his partner, arising out of similar problems she also had suffered.

63 The history of the applicant thereafter shows repeated characterisation of the applicant as a man of intense anger, untrusting of therapists, displaying a negative and obstructive attitude to addressing concerns that he might offend, and suffering a strong personality disorder. He was resistant to therapy for his condition because he believed it "stirred up" all the issues of his own sexual abuse from his father and when offered parole on 28 June 1999, he refused (as we have said) to participate in a Sex Offender Program saying that he was not willing to do such a program while incarcerated and that the parole period was only a short one.

64 At the same time, signs of improvement were seen when the applicant did participate in a variety of programs. These had been mentioned by Dr Ruth Vine in her report of 24 October 1995, by Dr Edward Theologis in his report after the applicant was released from prison on 12 February 1996, and by Mr Joseph Lee in his report of 7 February 1997. Mr Ball on 5 October 1998 suggested that the applicant presented a low to medium risk of reoffending provided that he completed the Adult Sex Offender Treatment Program aimed at treating the effects of his own sexual abuse by his father. Mr Joblin opined that the applicant's release in 1999 without supervision had caused problems and should not be allowed to occur again. Although the judge stated in his sentencing reasons that Mr Joblin in this report of 16 September 2002 appeared not to appreciate that the applicant's 1993 convictions for rape involved two separate victims, it is to be noted that Mr Joblin had in fact first seen the applicant on 25 October 1995.

65 In these circumstances it seems to us that a major issue is raised as to the applicant's willingness to undergo such treatment programs as are available while incarcerated and which are aimed at treating the effects of his own sexual abuse. These he appears to have resisted since late 1996 or early 1997. The judge was plainly much influenced by the applicant's unwillingness to accept treatment or co-operate in sexual offender programs to modify his behaviour.[35] We readily acknowledge the significance of the applicant's attitude, but view the issue somewhat differently.

66 The applicant, as noted above, was denied release on parole on 28 June 1999 when interviewed as to his willingness to participate in treatment programs, saying he was willing to serve out the full sentence, then a further four-and-a-half months. If, however, he were sentenced now to a head sentence of sixteen years, with a non-parole period of twelve years, the applicant would be presented with a very different choice to make. He would then be faced with the possibility of spending a further four years in custody, or, having regard to his past experience, co-operating with the authorities. In such circumstances the applicant may well feel constrained to accept treatment as the price of release from incarceration after twelve years. To say so is not to infringe s.5(2AA) of the Sentencing Act 1991, since we are not thus having regard to the possibility of time spent in custody being affected by executive action. Rather we are referring to the applicant's past refusal of treatment, and his stated preference to serve out a short parole period in incarceration, rather than participating in treatment, and to what his attitude to such treatment might be after a lengthy period of incarceration. The evidently beneficial results of his acceptance of treatment on other occasions we have already discussed.

67 The power to sentence for an indefinite period is, as has already been seen, one that the courts have repeatedly stressed must be confined to very exceptional cases. The applicant's prior criminal history was quite different from that of Carr, Moffatt and Carolan. He had spent a much shorter time in prison than had they. In our view the judge was, with respect, in error in concluding that in all the circumstances an indefinite sentence should be imposed.

68 We would therefore grant the application for leave to appeal, allow the appeal and set aside the indefinite sentence imposed. In lieu thereof we would sentence the applicant on counts 1 and 2 in each case to two-and-a-half years' imprisonment and on counts 3 and 4 in each case to nine years' imprisonment. Taking count 3 as the base sentence we would order that five years of the sentence imposed on count 4, and one year of each of the sentences imposed on counts 1 and 2 be made cumulative upon each other and upon count 3. The total effective sentence would therefore become sixteen years. We would fix a non-parole period of twelve years.

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Judgment (95 paragraphs)

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Cases Cited (1)