R v Davies [2005] VSCA 90

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:

(1) The judge erred in admitting evidence of the applicant's refusal to participate in an identification parade.

(2) The judge erred in admitting evidence of the process and considerations involved in the compilation of a video-tape identification parade.

(3) The judge erred in admitting into evidence the video-tape of the identification procedure conducted with one of the complainants on 25 May 2001.

(4) The judge erred in admitting video-tapes of each of the complainants viewing the video-tape identification parade and in permitting the jury to have access to those video-tapes during their deliberations.

(5) There was a miscarriage of justice by reason of one or more of the foregoing errors or the cumulative effect of some or all of them.

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:

"If, at trial, it unfolds that the Crown must explain the omission of a line-up or accept the possibilities of the jury drawing an adverse inference, then in those circumstances it would seem that evidence of refusal is both relevant and admissible. In other circumstances I do not think such evidence should normally be tendered. The danger, as I see it, is that it may impinge on the presumption of innocence, the jury may gain the impression there is a duty on the accused to prove he is innocent."[6]

10 But the difficulty with that sort of approach is that an accused may say nothing about the omission of an identification parade until late, and perhaps very late, in the trial and at that stage of the trial it might not be possible for the Crown to adduce evidence that the accused was offered an identification parade and refused the chance. Consequently, the jury would be left with the false impression that the police had been less than fair in their treatment of the accused. Hunt CJ at CL made the point in R. v. Reeves[7] as follows:

"A necessary consequence of an accused's right of silence is that the Crown often has no knowledge of the issues which are going to be raised by him at the trial. The Crown must lead all of its evidence upon every issue which it ought reasonably have foreseen may arise: Shaw v. The Queen (1952) 85 C.L.R. 365 at 380; R. v. Chin [1985] HCA 35; (1985) 157 C.L.R. 671 at 676. Without wishing to appear as cynical as did Avory, J. in R. v. Liddle (1928) 21 Cr. App. R. 3 at 6, I think that it may safely be said that it ought reasonably to be foreseen that the fairness of the conduct of the investigating police officers may be criticised and in a way of which the Crown will not necessarily be forewarned (as it usually should) in accordance with Browne v. Dunn (1893) 6 R 67 during its case in chief."

11 In practical terms the only way to avoid that sort of problem is to allow the Crown to anticipate that the omission of an identification parade will be an issue and to deal with any possible impingement on the presumption of innocence by appropriate directions as to the purpose and effect of the evidence. Thus as Hunt CJ at CL explained in McCarthy and Ryan v. R.:

"The evidence [is] clearly admissible, to enable the Crown to explain why evidence which the jury may well have expected to be led was not being led: cf Claridge (unreported, Court of Criminal Appeal, NSW, 15 May 1992), pp 12-13. The practice of holding identification parades is well known within the community, and the Crown was not obliged to wait for [the accused] to raise some issue about such a parade before it was entitled to explain its absence. Otherwise, if an accused remains silent and nothing is said about it, the jury may well draw an inference adverse to the Crown: cf Reeves (1992) 29 NSWLR 109 at 115.

When such evidence is given, however, 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 them that he is guilty: Reeves (at 115)."

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:

(a) First, reference is made to evidence given by the first victim in answer to a question asked in cross examination that she believed before beginning to view the video identification parade that the offender would be depicted on the video tape.

(b) Secondly, it is said that although the tape would give to the jury the impression that the video identification parade provided twelve different images from which to choose, the sequential nature of the parade meant that as soon as the first victim saw the applicant she ceased to consider whether any of the following images was the offender.

(c) Thirdly, it is said that Sergeant Hart, who was the policewoman present while the victim viewed the identification parade, nodded after the victim had selected the applicant and that exacerbated the problem .

(d) Fourthly, it is argued that the video tape was misleading because the victim was not asked while being taped how confident she was of her selection of the applicant as the offender.

20 The passage of cross examination relied upon was as follows:

"Now on 25 May, that's six days after this incident, OK, you went to a police station in Melbourne, do you remember that, and you saw a video of all those different faces?---Yes.

It's the second one that you saw earlier today?---Yes.

You saw a video with pictures of different heads on it, do you remember seeing that one?---Yes.

Now a policewoman told you that you were going to see a video with different heads on it, is that right?---Yes.

And you thought that the man who did it would be on the video, is that right?---Yes.

After the man ran out of the classroom you saw him jump the fence, is that so?---Yes.

And you didn't see him again after he jumped the fence, is that right?---No.

Earlier today, before lunch, you said it was possible that the man at the milk bar was different to the one at the petrol station, do you remember saying that before?---Yes.

And it was also possible that the one at the petrol station could have been a different one to the one at school, do you remember saying that before?---Yes.

Well it's easy sometimes ... isn't it, to confuse different men who were just total strangers that you see at different times?---Yes.

When you picked out a picture on that video identification tape six days after the incident, it's possible that you might have just made an honest mistake and been confused, isn't that possible?---Yes."

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:

1. In all the circumstances, the indefinite sentence imposed was manifestly excessive;

2. The sentencing judge erred in failing to exercise his discretion to impose a definitive sentence pursuant to the "serious sexual offender" legislation.

The relevant provisions of the Sentencing Act 1991

30 Subdivision (1A) of Division 2 of Part 3 of the Sentencing Act 1991 empowers the Supreme Court or the County Court upon application by the Director of Public Prosecutions ("the Director") to sentence a person "convicted ... of a serious offence" to an indefinite term of imprisonment. Section 18B defines the Court's power to impose such a sentence and provides as follows -

" (1) A court may only impose an indefinite sentence on an offender in respect of a serious offence if it is satisfied, to a high degree of probability, that the offender is a serious danger to the community because of :

(a) his or her character, past history, age, health or mental condition; and

(b) the nature and gravity of the serious offence; and

(2) In determining whether the offender is a serious danger to the community, the court must have regard to -

(a) whether the nature of the serious offence is exceptional;

(b) anything relevant to this issue contained in the certified transcript of any proceeding against the offender in relation to a serious offence;

(c) any medical, psychiatric or other relevant report received by it;

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

(e) the need to protect members of the community from the risk referred to in paragraph (d) -

and may have regard to anything else that it thinks fit.

(3) The prosecution has the onus of proving that an offender is a serious danger to the community."

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 -

"It is the writer's opinion that Mr Davies offended in a deliberate and predatory manner, illustrated by the fact that he deliberately entered the female toilets and being unable to give any honest explanation as to why he would do such a thing. Mr Davies took advantage of his victim's youth, randomly preying on innocent school children. One consolation perhaps is that this may illustrate that his offences were not so premeditated as to suggest that his behaviour is paedophilia-related. Mr Davies' offences occurred in school area locations, where access to is not easily restricted and this causes concern to the writer.

Mr Davies' repetition of offending suggests that he will re-offend again even though he has begun to address his behaviour through completing the Greenfields Program. Mr Davies indicated that he is willing, if released, to participate in Forensic Psychiatry. When questioned as to the impact that the Greenfields Program has had on his offending behaviour, Mr Davies stated that it gave him an understanding of triggers that caused him to offend and when questioned further, it transpired that Mr Davies seems to blame others for what happened and is unwilling to accept responsibility.

When further questioned for practical ways to avoid high risk situations, Mr Davies offered nothing to convince the writer that he will not re-offend in this manner again. He demonstrated minimisation of the impact on his victims and has no concept of victim empathy. ...".

"Mr Davies is in high danger of offences similar to this nature occurring again. His history of offending, his questionable supports, his inability to complete community based dispositions and his attitude towards the victims of his crimes can only indicate that this will happen again."

35 The applicant was then seen by Dr Ruth Vine, a consultant psychiatrist, on 24 October 1995. Dr Vine reported -

"Mr Andrew Davies is a 28 year-old father of two, who is currently serving a sentence for sexual offences on two children previously unknown to him. Although he has shown some interest in understanding his actions and altering his methods of coping with stress, he is now adamant that he does not wish for further prison-based sexual offender treatment. While Mr Davies does appear to have altered significantly since the report of the Community Corrections Officer [Ms Angela Sharpe], in particular with regards to his plans should he be released, his appreciation of how his victims may have felt and his apparent ability to empathise with his victims, in other ways Mr Davies continues to minimise his role in these events, pretending to blame the situation in which he found himself and in particular, his deteriorating relationship with his girlfriend Tracey. It does not appear that either drugs or alcohol contributed to his offences and indeed from Mr Davies' description it is difficult to explain why these offences occurred, given that he denies feeling anger towards the victims, denies any sexual excitation and does not appear to have sought any relationship with the victims. Of some concern is Mr Davies' lack of empathy or remorse in the period immediately following the offences and the sense that he has only developed such empathy if at all, in recent months. It would be my concern that Mr Davies will be at risk of reoffending, particularly if he should find himself in a situation of stress or confusion in a setting of a close relationship.

Given that Mr Davies is adamant that he will not participate further and not be assessed for the Psychosexual Treatment Unit, it would thus be my opinion, that it would be an overall advantage that Mr Davies be granted parole, but that this parole be conditional upon remaining abstinent of alcohol and attending the Forensic Psychiatric Service in Brunswick Road, Brunswick, for ongoing assessment and treatment of his history of sexual offences."

36 The applicant was released from prison on 12 February 1996 and was thereafter seen on a number of occasions by a psychiatric registrar, Dr Edward Theologis, who reported on progress in the first fourteen sessions as follows -

"Mr Davies developed gradual rapport over time and began to show some willingness to work on his personal issues, saying that his main motivation was to gain supervised access to his children. What has emerged so far is that Mr Davies's sexual offences occurred in a situation where the following factors were interplaying:

(1) Very poor anger control and increasing fantasies of committing serious violence toward his father-in-law for:

- having sexually assaulted Mr Davies' wife as a child

- maintaining an intrusive/critical role in the relationship between Mr Davies and his wife

(3) Perpetuation of the above state by his inability to cope with aspects of the anger management course at the time (saying it stirred up all the issues of his own past sexual abuse from his father, as well as his wife's sexual abuse from her father).

(4) Mr Davies deciding to resolve the above situation using a number of distorted/perverse existential reasoning, such as:

- 'Why should these things have happened only to me?'

- 'I want to find out what the bastard [father] got out of it [the sexual abuse]'

Mr Davies claims that it was his perverse curiosity to resolve the dilemma of why he (and his wife) was abused which led him to commit his sexual offences, and repeatedly claimed during the sessions that he:

(1) Accepted full responsibility for committing the illegal acts

(2) Accepted partial responsibility for any harm caused to his victims

(3) Accepted that he has a high risk of recidivism from the point of view of committing further violent acts

(4) Did not accept having any risk at all for recidivism for further sexual assault."

A further report dated 7 February 1997 by a senior clinical psychologist, Joseph Lee, of the Brunswick clinic, reported that -

"Mr Davies presented as a man of intense anger. Typically he placed little trust in his therapist initially and it would take some time for a rapport to be established. Over the past months, Mr Davies appeared to have made some progress in that he assumed a full responsibility for his sexual offences and showed a willingness to involve himself in ongoing therapy. However, his motivation for ongoing therapy has waned. Since his order expired in December 1996, his attendance at our clinic would become voluntary."

37 After the applicant was sentenced at the Melbourne Magistrates' Court on 27 August 1998, he refused to participate in the sex offender program in prison and the Parole Board therefore denied release on parole. His sentence for the offences for which he was sentenced in August 1998 was completed on 17 November 1999.

38 The applicant was further assessed by a second Community Corrections Officer, John Ryall, on 8 July 1998 in relation to his breach of the community based order made in the Melbourne Magistrates' Court on 5 November 1997. Mr Ryall reported -

"From the outset, Mr Davies stated that he would attend the Brunswick Road Community Forensic Psychiatry Centre only reluctantly, believing it to be 'a waste of time'. As Mr Joe Mollica, the Community Corrections Officer who supervised Mr Davies' Order from 5 November 1997 to 27 April 1998, was a qualified psychologist with expertise in working with Sex Offenders, efforts were made to address this condition within the context of supervision. However, this approach met with only limited success since Mr Davies continued to display a negative and obstructive attitude to addressing concerns that he might reoffend in a sexual manner."

Mr Ryall stated in his concluding comments that -

"This order would appear to serve little purpose beyond the limited intrusion of occasional reporting and Community Work. Mr Davies has made clear his dismissive attitudes to the goals of his Community Based Order and his co-operation, when extended by him, has been perfunctory. In specifying a condition that he attend for psychological testing and treatment connected with sexual offending, the Melbourne Magistrates' Court had held a clear concern in that regard. Mr Davies has not met this condition and he has stated his resistance in word and in deed to do so."

It was shortly after Mr Ryall's report that the applicant on 18 August 1998 loitered without reasonable excuse near the Sunshine Primary School, for which he was sentenced to be imprisoned for nine months.

39 The applicant was then assessed by Mr David Ball, a psychologist, of the Thornton Consulting Group. Mr Ball in a report dated 5 October 1998 noted that the applicant -

"tends to be rigid and moralistic and over-evaluates his own worth. He utilises repression and denial excessively and appears to have little or no insight into his own motivation. Also, he has little awareness of the consequences to other people of his behaviour.

Mr Davies MMPI-2 - profile indicates that he has difficulty with incorporating the values and standards of society. He is likely to engage in a variety of asocial, antisocial and criminal behaviours. These behaviours may include telling lies, cheating, stealing, sexual acting out and excessive use of alcohol and/or other drugs."

Earlier in this report Mr Ball had referred to established criteria for ascertaining whether or not a sexual offender is of low risk. He then said -

"In line with the aforementioned literature and following my own assessment, I have formed the opinion that Mr Davies presents a low to medium risk of reoffending provided that he complete the Adult Sex Offender Treatment Program and undergo therapy aimed at treating the effects of his own sexual abuse perpetrated by his father."

40 Before the applicant was sentenced for his most recent offences, presentence reports were obtained from Dr Lester Walton, a consultant psychiatrist, and Mr Ian Joblin, a forensic psychologist. Dr Walton reported -

"If Mr Davies' account is accepted at face value, that is, that there has been one previous isolated incident of his sexually abusing a female child, and that he has no aberrant sexual urges towards children, then he would not be formally diagnosed as a paedophile. However, if that history is combined with the current conviction and his account of loitering at the school is not preferred, then that certainly elevates the likelihood of him being properly described as a paedophile."

"On the basis of this man now having been convicted of two incidents of child sexual abuse, as well as a further conviction where there is a suggestion of similar inclinations, the prognosis in relation to recidivism would have to be guarded."

41 Mr Joblin's report contained the following statements in his assessment -

"Mr Davies is inadequate. He is not sophisticated or complicated. He does evidence in my opinion symptoms of a personality disorder. That is, he has fairly typical behavioural patterns and characteristic responses that constitute his personality. These are enduring and rigid, inflexible and maladaptive. As a result they cause a significant impairment in his functioning. Because of that he has been diagnosed as a personality disorder. This is evidenced by his history of offending and in his somewhat pervasive self-righteousness in relation to the current situation. Because the personality disorder is so inflexible and maladaptive, it has restricted him in his range of responses to various situations in inappropriate patterns.

Unfortunately because of the strength of his personality disorder, rehabilitation is very difficult. I have outlined above only briefly the response he has had to parole and various non-custodial orders. It seems that he has attended the sex offenders' program not only in custody at Ararat but also at the Brunswick Road Clinic on release and yet again appeared in court on offences that may well have had a sexual motivation prior to the current matters. I am concerned to note his report even as late as 1998 that he spent some months in custody before being released with no supervision.

Rehabilitation, therefore, may well be a problem. Nevertheless, if he was released without supervision in 1999 that should not happen again. Indeed, I have no doubt that if he is afforded parole some time in the future, the Parole Board will pay serious attention to his history, particularly given the 1993 offences and the present offences. I would have some confidence in indicating that the Parole Board will not release him to his own resources at all. Thus, it seems that again in the future he would be a candidate to attend community forensic psychiatry at liberty. In my opinion at the moment it is an extremely difficult issue to indicate that Mr Davies is free of problems or a psychosexual disorder and that opinion is strengthened by these offences."

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 -

"Unfortunately, the predictions of potential reoffending have come to pass with this serious sexual offending. As at this time the time of sentencing, I am satisfied to a high degree of probability that the prisoner is a serious danger to the community. This finding is on the basis that the prisoner's character, particularly with his little insight, empathy, lack of remorse and a lack of willingness to utilise treatment and assistance offered, his past history, his age, being some 33 years, with potential for further offending and the nature and gravity of these serious offences. The court has regard to the exceptional nature of these serious offences, the transcript of the sentencing remarks of Judge O'Shea at Morwell County Court on 5 October 1993, the medical and psychiatric reports, together with parole reports, the risk of serious danger to members of the community if an indefinite sentence were not imposed and the need to protect members of the community from such risk."

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 -

"... it is now firmly established that our common law does not sanction preventive detention. The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender: ... In the light of this background of settled fundamental legal principle, the power to direct or sentence to detention contained in s.662 should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm." (Citations omitted.)

Their Honours took the view that the exercise of the power in s.662 should be reserved for those very exceptional cases in which -

"The sentencing judge is satisfied by acceptable evidence that the convicted person is, by reason of his antecedents, character, age, health or mental condition, the nature of the offence or any special circumstances, so likely to commit further crimes of violence (including sexual offences) that he constitutes a constant danger to the community. The stark and extraordinary nature of punishment by way of indeterminate detention, the term of which is terminable by executive, not by judicial, decision, requires that the sentencing judge be clearly satisfied by cogent evidence that the convicted person is a constant danger to the community in the sense already explained."

49 These principles have been applied repeatedly in this State in consideration of the indefinite sentence provisions of the Sentencing Act[25]. In Moffatt, Winneke, P. said[26] that -

"the range of conduct encompassed within each type of offence will no doubt be broad. Nonetheless, it is, in my view, the clear intent of the legislation that the power should be exercised sparingly and only in the exceptional case where the nature of the offence viewed in the context of the offender's past history and/or criminal disposition compels the court to the conclusion that the offender is a serious danger to the community."

50 Hayne, J.A. said at the conclusion of his reasons in Moffatt[27] that "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", and added that these powers "are to be sparingly exercised and then only in clear cases".

51 These remarks were quoted with approval in the judgment of all members of the High Court in Lowndes v. The Queen[28].

Previous cases in Victoria in which an indefinite sentence was sought

52 Reference was made in argument to four cases in Victoria in which an indefinite sentence had been sought by the Director. In Carr[29], where an indefinite sentence was imposed, the offender had pleaded guilty to charges of false imprisonment, robbery, one count of attempted rape and two counts of rape. The rapes were inflicted with a significant degree of force on a woman aged 77. Carr also admitted 57 prior convictions from 22 court appearances between 27 June 1975 and 29 June 1993. Many of these were for street offences, burglary or theft, but in particular Carr had the following convictions -

(a) In September 1976, in Sydney, one count of assault, and a further conviction for committing an act of indecency upon a female under the age of 16 years;

(b) In May 1980, in Melbourne, for attempted rape and assault with intent to rape;

(c) In June 1983, in Melbourne, for assault with intent to rape, and assault occasioning actual bodily harm and assault;

(d) In April 1987, in Melbourne, for aggravated rape;

(e) In December 1990, in Melbourne, aggravated assault with intent to rape, aggravated indecent assault and false imprisonment.

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 -

Probation for 3 years, and upon breach, imprisonment for 12 months

Procuring the commission of an act of gross indecency

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.

[1] The toilets and classrooms were unlocked for cleaning.

[2] [1982] VicRp 1; [1982] V.R. 1.

[3] (1976) 60 D.L.R. 3d 119.

[4] (1993) 71 A.Crim.R. 395.

[5] Upon which the relevant part of the decision in R. v. Clune was based.

[6] (1976) 60 D.L.R. 3d 119 at p.127.

[7] (1992) 29 N.S.W.L.R. 109 at p.115.

[8] Domican v. The Queen [1992] HCA 13; (1992) 173 C.L.R. 555 at pp. 561-2.

[9] There are indeed many types of video identification procedures.

[10] cf Jamal v. R. [2000] FCA 1195; (2000) 182 A.L.R. 307 at p 317 [57].

[11] cf R. v. Alexander [1981] HCA 17; (1981) 145 C.L.R. 395 at pp.405 and 407.

[12] (2002) V.R. 517.

[13] [2003] VSCA 118.

[14] [1996] VicRp 43; [1996] 1 V.R. 585, at 592.

[15] [1998] 2 V.R. 229, at 248.

[16] R. v. Carr [1996] VicRp 43; [1996] 1 V.R. 585.

[17] R. v. Moffatt [1998] 2 V.R. 229.

[18] Anthony John Carolan was sentenced by Judge Wodak to an indefinite sentence on Friday 25 February 2000.

[19] See s.5(3) of the Sentencing Act 1991.

[20] See s.6D, Sentencing Act 1991.

[21] R. v. Leslie John McManus, unreported, Court of Appeal, 17 February 1998 per Phillips, C.J. at p.3.

[22] [1988] HCA 62; (1988) 165 C.L.R. 611.

[23] Section 662.

[24] 165 C.L.R. at 618-619.

[25] R. v. Carr [1996] VicRp 43; [1996] 1 V.R. 585 at 591; R. v. Moffatt [1998] 2 V.R. 229 per Winneke, P. at 236; per Hayne, J.A. at 255, per Charles, J.A. at 226.

[26] At 234.

[27] At 255.

[28] [1999] HCA 29; (1999) 163 A.L.R. 483 at [11]. See also Thompson v. The Queen [1999] HCA 43; (1999) 165 A.L.R. 219 per Kirby, J. at [6] and [19].

[29] [1996] VicRp 43; [1996] 1 V.R. 585.

[30] [1998] 2 V.R. 229.

[31] At 240.

[32] Court of Appeal, unreported, 17 February 1998. McManus had first been sentenced by Judge Walsh in the County Court on 28 August 1997.

[33] The sentence was amended on 9 March 2000 in respects that are not relevant for present purposes.

[34] See paragraph [43] above.

[35] See sentencing reasons at 1045-1046.