119 Given the nature of the challenge which is made to his Honour's order, it is now necessary to identify the material which was placed before the primary judge by the Crown in support of the application for a pronouncement. There was the material, to which Sully J has referred in some detail, of a formal nature which was designed to establish the statutory pre-requisites. There was also in evidence the Remarks on Sentence of the judicial officers who had sentenced the applicant in 1977 and in 1983 respectively. It may be noted that the applicant was still only a juvenile at the time of the 1977 offence. There was also a report from a police officer which provided some further background information about other offences of which the applicant had been convicted.
120 In addition, the Crown provided the primary judge with a number of other reports. There was a short report, prepared by the Probation and Parole Service in 1979, which contained an assessment as to the applicant's suitability at that time for release to parole. Two reports prepared in 1994 and 1995 respectively, which were also quite brief, were prepared for a similar purpose albeit that they concerned his suitability for release to parole in respect of the 1983 offences. It is readily apparent however that the applicant served his full sentence in respect of both the 1977 and 1983 matters. In other words, he was not released on parole on either occasion but served the entirety of those sentences which were at the relevant times, subject to remissions. There were also in evidence various psychiatric reports from Dr Lucire, Dr Westmore, Dr O'Dea and Dr Milton, all of which appear to have been prepared in the period immediately prior to the applicant's eventual release into the community in April 1996. It may be said that the experts were uniformly pessimistic in their prognoses as to the applicant's likely conduct upon release. Furthermore there was no evidence before his Honour that the applicant was suffering from a "mental illness" or "mental disorder".
121 The only material upon which the applicant relied before the primary judge was a report, to which Sully J has referred, provided by a psychologist, Mr Nolan. He briefly examined the applicant in February 2001. That report was apparently prepared for use in the sentencing proceedings for the substantive offences. For reasons that have not been explained, it was not tendered in those proceedings although as I have said it was before his Honour on the application by the Crown for a pronouncement. Its utility must have been limited by the fact that it was not prepared for that latter purpose. Nevertheless it was the only material before the primary judge that was more recent than 1996, a matter upon which his Honour commented.
122 Having considered Mr Nolan's report, the primary judge observed that he was "reluctant to classify Mr Stong as having no future prospects of rehabilitation. I think it would be wrong for me to do so. There is indeed, perhaps a little flicker of hope contained in the report of Mr Nolan."
123 So far as the issue of obtaining further more recent psychiatric reports was concerned, his Honour observed that:
[a]t the time of sentencing in February of this year I recommended to the Corrective Services Commission that Mr Strong be kept, if practicable, in the Sydney metropolitan area in order to facilitate independent psychiatric examinations of him to be arranged by the Crown and by his own legal advisers.
I am told from the bar table that Mr Strong attempted suicide and for that reason was transferred to the Bathurst Crisis Centre. No independent psychiatric examination has therefore been able to take place.
124 Ms Natalie Adams of counsel, who appeared on the applicant's behalf before the primary judge, swore an affidavit in these proceedings. Relevantly for present purposes she states that:
… Dr Neilssen (sic) was asked to see the appellant. He was subsequently unable to do so as the appellant was moved from Long Bay Correctional Centre to Bathurst Correctional Centre on suicide watch.
On the basis of Dr Neilssen's (sic) oral advice that there were no therapeutic programmes available to the appellant as he was unwanted on them and the fact that the appellant was being held in custody in Bathurst I decided that there was little point in seeking a third adjournment. In addition, I was concerned that any further delay would only prolong the appellant's state of uncertainty as to what was going to happen to him and hence add to his suicidal thoughts. Consequently the case proceeded without an up to date psychiatric assessment.
I have been provided with copies of the reports of Dr Allnutt dated 16 July and 19 September 2002. Had I been aware that an up to date psychiatric report would have been produced in the same terms as Dr Allnutt's reports and, specifically, containing the appellant's admissions both as to minimising his psychiatric symptoms in the past and to experiencing auditory hallucinations at the time of the application, I would have sought an adjournment.
If I had received a report in the same terms as the reports of Dr Allnutt I would have sought to rely upon it during the proceedings as I consider that the contents of Dr Allnutt's reports would have been relevant to the exercise of Judge Freeman's discretion as to whether or not to make the requested declaration pursuant to the Habitual Criminals Act 1957.
125 One can readily understand the dilemma which confronted counsel. No criticism can be sheeted home to her in the circumstances. The unfortunate fact remains however that no up to date psychiatric material was made available to the primary judge.
126 Furthermore, s 9 of the Act provides, as Sully J has noted, that "a judge shall consider any report in respect of such person that may be obtained by such judge from the Adult Probation Service". I agree with Sully J that it was not "an absolute pre-condition that a report must be first obtained" before the pronouncement could be made. It is clear however that the Crown brought that provision to the attention of the primary judge. Indeed his Honour observed of it during the course of giving an interlocutory judgment, that the opportunity existed for "a judge to order a pre-sentence report specifically related, it would seem, to the exercise of the declaration and subsequent sentence under the Act".
127 His Honour also remarked, correctly in my view, that he had been provided with an "obviously far from complete file…from the Department of Corrective Services". It is highly regrettable, and indeed quite surprising, that no-one during the course of the proceedings before the primary judge was apparently alive to the need to obtain such a report. As I have said, the most recent report from that source had been a short report, prepared in 1995 for a rather different purpose, in respect of the 1983 offences. The legislature clearly saw it as being a matter of importance. To my mind, it is a matter of considerable concern that the primary judge did not have available to him for his assistance, a contemporary professional opinion from that Service.
128 In R v Riley (1973) 2 NSWLR 107 this Court said that the court must be able to predict "with reasonable confidence that at the expiration of any term of imprisonment appropriate by current standards to the offences for which they are being sentenced, they will resume their criminal activities" (at 112). See also R v Fahey [1954] VLR 460. Reports dating back to 1996 were unlikely to provide the most secure footing upon which to make the required prediction.
129 In McGarry v The Queen (2001) 207 CLR 121, the High Court considered a West Australian provision which enabled a court when sentencing an offender, to also impose, in certain circumstances, an indefinite term of imprisonment, in addition to the term imposed for the offence itself (the nominal sentence). Such an order could only be imposed if the Court was satisfied that when the offender would otherwise be released in respect of the nominal sentence he or she would be a danger to society, or part of it.
130 In a joint judgment, Gleeson CJ, Gaudron, Gummow, McHugh and Hayne JJ said that:
[b]ecause sentencing judges who are asked to make an order for indefinite imprisonment are required to make a prediction about future behaviour, there will usually be a very large amount of material that is relevant to that question. In that regard, it would be expected that the prosecution would place all available and relevant material at its disposal before the court. If it is contended that the offender has some psychiatric condition which predisposes him or her to reoffending, it would be expected that the prosecution would lead expert evidence about that matter. If reliance is placed upon the offender's past conduct, full details of that conduct, including all of the evidence that related to it, should be available to the sentencing judge. In this, and all other respects of the matter, it would be expected that the offender would have a proper opportunity to meet the prosecution's case.
Orders for indefinite imprisonment are not lightly to be made. An application for such an order should be treated with commensurate care and attention to detail. (at 132)
131 Kirby J, in a separate judgment in which His Honour agreed with the majority, said:
In part, the reason why the system of criminal justice treats an order of indefinite imprisonment as a serious and extraordinary step, derives from the respect which the law accords to individual liberty and the need for very clear authority, both of law and of fact, to deprive a person of liberty, particularly indefinitely. In part, this approach rests upon the indisputable feature of almost all criminal sentencing in Australia that limits the sentence imposed to one that is proportionate to the offence of which the person has been convicted. In part, it reflects a tendency to recoil from preventive detention that involves punishing a person "not for something that he has done but because of something it is feared he might do". In part, it represents a realistic acknowledgment of the limitations experienced by judicial officers, parole officers and everyone else in predicting dangerousness accurately and estimating what people will do in the future.
On the occasions on which this Court has recently reviewed orders of imprisonment akin to that contemplated by s 98 of the Sentencing Act, it has emphasised that such punishment should not be ordered except after the observance of fair procedures and upon the basis of materials that are appropriate, both in kind and quantity, to the exceptional character of the order that is sought.
In Thompson the Court of Criminal Appeal itself had observed that "the pre-sentence and psychological reports relied upon by [the sentencing judge] were prepared in some haste with the further consequence that the psychological assessment which was carried out was not comprehensive". In this Court, Gaudron and Hayne JJ concluded that that finding led inevitably to the conclusion that the decision of the sentencing judge in respect of s 98 of the Sentencing Act, had miscarried. Inherent in that opinion was the proposition that, for such a serious order, having such profound effects upon the liberty of the prisoner, defects of the kind described in the sentencing materials were not tolerable. In my reasons, I endorsed this conclusion adding:
"Where there was any possibility that an order of indefinite imprisonment might be made, it was essential that the procedures observed should be regular and scrupulously thorough and that the materials, including the pre-sentence reports, should be as adequate and complete as fairness to the prisoner required." (at 141-2)
132 With respect, it appears that the principles enunciated in the passages to which I have just referred are equally apposite to the present case. In the result, this Court has an advantage denied to the primary judge. It has available to it, the reports of Dr Allnutt and Dr Nielssen, to which Sully J has referred. They were received without objection upon the question of resentence in respect of the substantive offences. Those reports clearly cast the applicant's circumstances in a rather different light.
133 Nor does the Crown, "given the rather unusual circumstances of the case", oppose the reception of this material upon the application that is brought in respect of the pronouncement which was made. That being so, it is unnecessary to further consider the question of whether it satisfies the test for admissibility as "fresh" or "new" or "additional" evidence. My inclination would be to so regard it, especially in light of the affidavit of Ms Adams.
134 I am further fortified in that view by the decision of this Court in R v Griffen (1969) 90 WN (Pt 1) (NSW) 548. It provides an example of a situation in which this Court was prepared to receive additional material that was not before the primary judge. There the offender was given a 5 year sentence consequent upon his conviction for robbery with striking. He was also given a sentence of 8 years after he was declared to be an habitual criminal. Herron CJ, who delivered the judgment of the Court, referred to oral evidence which had been received from a doctor who regularly visited the offender in gaol. His Honour said that:
[he] has known him for some considerable number of years, and he has told us that the period already served in gaol has made a very big difference to this man, that his outlook has changed, his prospects for the future are better than they were originally, that the cessation of drinking has improved him considerably, and the doctor feels his chances are ever so much better than they were and, consequently, he was of the opinion that a certain measure of rehabilitation was seen in him. We think that in the special circumstances aided by this new evidence the prisoner ought to have some opportunity of approaching the Parole Board.
It may be that the Parole Board will come to the conclusion that he is a confirmed alcoholic and is not able to be freed upon licence, but that is a matter for the Board and not for this Court to consider at this distance from the scene. We think on reflection that he ought to have an opportunity of having his case presented to the Board, and we say this entirely on the evidence that we have heard from Dr Murphy. He has provided us with an alternative to the very learned chairman's view that he was a danger in the community and hence the only alternative was that he be put out of harm's way for eight years.
In all of the circumstances, therefore, we feel that the Parole of Prisoners Act should apply to this applicant, and that he ought to have at least an opportunity of presenting his case; but he cannot do that whilst he is under a declaration as an habitual criminal. We therefore propose, with every respect to his Honour's view, with which we agree entirely, that the sentence that his Honour imposed at the time and in light of the then known circumstances was proper, and without the benefit of this opinion that we have that some institutional treatment may be available; and that this is a matter for the Parole Board. We therefore vary the sentence imposed by the learned chairman by confirming the sentence of penal servitude for five years to date from 23rd December, 1967. We delete the pronouncement that he be an habitual criminal, and the sentence of eight years hard labour on that pronouncement is thus extinguished, and we fix a non-parole period of two and a half years in total and order that the time spent in prison during the appeal will count as part of the sentence. (at 550-1)
135 The Court in Griffen observed that an habitual criminal was not then subject to the provisions of the relevant parole legislation. That remains the case. See s 54 of the Crimes (Sentencing Procedure) Act 1999. There remains of course, a system of conditional release whereby the Governor may, pursuant to s 7 of the Act, release an habitual criminal on license. In Riley, the last reported case which concerned the application of the Act, the Court was informed that there were then twelve men who were in gaol in this State, having been declared habitual criminals. The Court was also informed that "about 75% of habitual criminals are released on license when they have served two-thirds of their sentence, and the balance on completing five-sixths". (at 112)
136 In light of the fact that apparently no application had been made, prior to the one currently under consideration, since the 1970s, there is no information available as to what the contemporary practice in that regard may be. Clearly however any sentence which is imposed as a consequence of a pronouncement that a person is an habitual criminal must at least, to some extent, be indeterminate in nature by reason of the fact that the only mechanism by which a person can be released before the expiration of the full term is in accordance with s 7. That fact does not sit comfortably with current sentencing philosophy, an important element of which is designed to ensure that there is "truth in sentencing". That concept involves, as I understand it, transparency as to the process by which a sentence is arrived at, and certainty as to the result produced.
137 It may also be observed that there are apparent anomalies to which the application of the legislation gives rise. Any sentence which is imposed pursuant to the pronouncement (the pronouncement sentence) must run concurrently with any other sentence which is being served at the time of the pronouncement (the primary sentence). Accordingly for the pronouncement sentence to have any practical effect, the primary sentence cannot exceed 14 years. Perhaps the problem can be highlighted with an example. Assume that the applicant had been convicted of various serious sexual assaults and had, as a consequence, been sentenced to a sentence of 20 years' imprisonment with a non-parole period of 15 years. Any pronouncement sentence in such circumstances, could have no practical effect, notwithstanding the fact that it may have otherwise been a case which, prima facie, satisfied the requirements of s 4. The primary offence or offences of which the applicant was convicted were clearly of a less serious nature than the circumstances envisaged in the hypothetical example. Nonetheless the pronouncement sentence passed by the primary judge should it survive this challenge, will have profound consequences in terms of the period of incarceration which the applicant will be required to serve. The result is not only in my view anomalous, but it is scarcely an example of the application of the principle of equal justice. That is no minor consideration, particularly when it occurs in the context of legislation which Sully J has described as conferring "draconian powers having a very far-reaching potential effect upon the life and liberty of any person who is so pronounced and imprisoned". The concern is that the legislation may be invoked in circumstances in which an offender, about whom fears are entertained as to his future conduct by reason of his past behaviour, has been convicted of offences which, in relative terms, are not to be regarded as the most serious offences in the criminal calendar. Indeed the primary judge observed, when sentencing the applicant for the substantive offences in the present case, that:
[t]he legislature has seen fit to provide a maximum of only five years in respect of each of those charges. In most circumstances I am sure that is more than enough. In the present, however, given the prisoner's history, his patently demonstrable propensity, the persistence with which he stalked and intimidated this innocent young woman, the range of penalty available is barely adequate.
138 Before leaving the subject of the way in which the Act may apply, there is a further passage in the judgment of Kirby J in McGarry which bears, if I may respectfully say so, repetition: