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[2003] NSWCCA 123
mixed. Leave to appeal against the substantive sentences was granted, the sentences were quashed, and Strong was resentenced to three years for intimidation and four and a half years for stalking, partly...
The Court of Criminal Appeal found that the trial judge should not have refused all recognition of Strong's early guilty plea to stalking. It replaced the substantive sentences, while maintaining that the offences were serious and that Strong's history was relevant. The Court accepted that the statutory requirements for declaring him an habitual criminal had been met and left that declaration in place. However, it considered the 14-year sentence imposed after the declaration too severe and reduced it to eight years. Buddin J agreed that the substantive sentences needed reconsideration but would have quashed the declaration and sent the whole matter back to the District Court.
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In Regina v Robert John Strong [2003] NSWCCA 123, the New South Wales Court of Criminal Appeal considered two connected sets of proceedings: appeals concerning sentences for intimidation and stalking, and appeals concerning a later declaration and sentence under the Habitual Criminals Act 1957 (NSW).
7 cited instruments linked from this judgment.
Strong pleaded guilty to intimidating Annissa Maree Widders with intent to cause fear or mental harm, for conduct between 29 January and 13 August 2000, and to stalking her with that intent, for conduct between 13 August and 3 September 2000 ([2]-[4]). He also asked for two further offences to be taken into account: offensive language outside Widders's home and possession of a knife in a public place ([5]-[6]).
The conduct described in the sentencing materials included sexually explicit letters sent while Strong was in prison, watching Widders's home, following her, and making statements that she was his partner. The material recorded that Widders felt frightened and worried, changed her movements, and feared violence ([6]-[7], [30]-[35]). The sentencing judge also took account of Strong's history of sexual and stalking offences ([8]-[10]).
The District Court imposed four years' imprisonment for intimidation, followed by a partly cumulative five-year sentence for stalking, producing total head sentences of eight years ([15]-[17]). The judge refused any discount for the guilty plea to stalking ([12], [49]). After those sentences had been imposed, the Crown applied to have Strong declared an habitual criminal. On 29 June 2001 the District Court granted the application and imposed the maximum 14-year sentence available under s 6 of the Act ([19]-[24], [113]).
The Court of Criminal Appeal granted leave on the relevant matters. By majority, it replaced the substantive sentences with three years for intimidation and four and a half years for stalking, the latter commencing after a period of partial cumulation. It upheld the habitual-criminal pronouncement but quashed the 14-year sentence and substituted eight years ([104]-[105]). Dunford J agreed with Sully J. Buddin J agreed that the substantive sentences required intervention but would have quashed the pronouncement and remitted the proceedings to the District Court ([106], [108]-[109], [149]).
The sentencing appeal turned in part on whether the judge had treated the offences as “worst case” examples and whether the sentences properly reflected the offending. Sully J considered an extended debate about that label of limited practical use. The offences were serious, the complainant's evidence of fear was not challenged as untruthful or unreliable, and Strong's relevant record aggravated the offending ([36]). His history could inform sentence because, as the judgment explained through Veen (No 2), it could illuminate culpability, continuing disobedience, dangerous propensity, and the need for deterrence and protection. It could not, however, justify a punishment disproportionate to the current offences ([36]).
The Court rejected the claim that the totality principle required four separate sentences, one for each of the two principal offences and the two further matters. The statutory process for matters taken into account did not require that approach. The proper analysis was to sentence the principal offences, adjust at least one sentence to account for the additional matters, then decide whether the sentences should be concurrent, cumulative, or partly both ([40]-[43]). The two principal offences were distinct in character, occurred at different times, and each involved a series of incidents. Partial accumulation was therefore open to the sentencing judge ([43]).
The material error was the complete refusal to recognise Strong's guilty plea to stalking. Under s 22(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the judge had to consider both the plea and when it was entered ([50]). A plea does not create an automatic entitlement to a particular percentage reduction. The judgment noted that the utilitarian discount generally fell within a range, with timing a primary factor, but that some pleas might not reduce the sentence ([50]). Here, the plea meant Widders would not have to face Strong in court or undergo cross-examination. The Court considered that value sufficient to require a modest recognition of the plea, despite the strength of the Crown case and Strong's record ([51]-[53]).
The Court also considered psychiatric evidence that was not before the original sentencing judge. The reports described serious and difficult mental-health issues, including the possibility of intermittent psychosis, and recommended ongoing psychiatric care ([65]-[70]). Sully J treated that evidence as relevant to the balancing exercise, alongside the seriousness of the offending, the pleas, Strong's record, and public protection ([71]-[72]). The resulting sentences were three years for intimidation and four and a half years for stalking, with five years' actual custody represented within seven years of total head sentences ([72]-[73]).
On the Habitual Criminals Act appeal, the Court addressed the statutory preconditions. It concluded that the certificate of conviction and the Commissioner's certificate of imprisonment were before the sentencing judge and, read as a whole, proved two qualifying prior terms of imprisonment ([82]-[88]). It also held that s 9 did not make it compulsory to obtain a report from the Adult Probation Service or a successor service. The provision required consideration of a report if one was obtained ([89]-[92]).
The majority distinguished the validity of the pronouncement from the length of the resulting sentence. It accepted the sentencing judge's decision to pronounce Strong an habitual criminal, given the statutory requirements and the protective purpose identified in the judge's reasons ([98]-[100]). But s 6 allowed a sentence between five and 14 years, and Sully J concluded that the statutory maximum was not a sound exercise of discretion in this case. An eight-year sentence was considered proportionate in the circumstances, including the effect of the sentences for the substantive offences ([101]-[104]).
The judgment applied existing sentencing principles rather than announcing a new statutory regime. On antecedents, it applied Veen (No 2): criminal history can be relevant to assessing the current offence and the offender's propensity, but cannot produce a sentence disproportionate to the current offending ([36]). On totality, it applied the approach described in Wilkins and Perese: assess the principal offences, account for the additional matters, and then structure the sentences to reflect total criminality ([40]-[43]).
For guilty pleas, the judgment applied s 22 and Thomson and Houlton. The plea's timing and utilitarian value were relevant, but the decision did not establish a fixed discount or guarantee that every plea would reduce a sentence ([50]-[53]). Its concrete holding was narrower: on these facts, refusing any recognition of an early plea to stalking was error.
On habitual-criminal procedure, the judgment construed ss 4, 5, 6, and 9 of the Act. It held that the prescribed certificate could be assessed as a whole and that s 9 did not require a report in every case ([79]-[92]). It also stressed the exceptional and serious nature of the power, referring to Riley's warning that it should not be exercised lightly ([76]-[78]).
Buddin J's separate reasons raise a different concern about the operation of the Act. He referred to the Law Reform Commission's recommendation for repeal and to concerns about preventive detention, certainty, and anomalies in the statutory scheme ([110]-[112], [136]-[139]). He considered that the lack of current psychiatric and probation material meant that the pronouncement proceeding had miscarried and should be remitted ([127]-[143]). Those observations should be distinguished from the majority's holding: the majority dismissed the appeal against the pronouncement, whereas Buddin J would have allowed it.
The judgment does not set out a general ruling that habitual-criminal proceedings always require a contemporary report. Sully J held that s 9 did not make obtaining one an absolute prerequisite. Buddin J, however, considered the absence of adequate and up-to-date material important to the fairness and reliability of the discretionary decision in this case ([91], [127]-[140]).
At [36], Sully J explained that the offences protected the ability of “young and potentially vulnerable women” to go about their lawful affairs without persistent fear caused by unwelcome attention. In plain English, the Court treated the effect and context of repeated stalking as central to seriousness, rather than treating the statutory offence as inherently minor.
At [41], the Court set out a three-stage approach to totality: fix proper sentences for the principal offences, adjust at least one for the additional matters, and then decide how the sentences should operate together. This means that the sentencing structure must reflect the combined criminality, but separate sentences for every matter taken into account are not necessarily required.
At [51]-[52], the Court explained why the guilty plea mattered even though the prosecution case was strong. The plea avoided subjecting the complainant to a courtroom confrontation and cross-examination. In practical terms, the plea had value to the administration of justice and to the complainant, so the judge could not treat it as irrelevant.
At [76], the Court adopted Riley's caution that an habitual-criminal pronouncement “is a power not to be exercised lightly”. The Act was described as having potentially far-reaching consequences for liberty, and the Court required strict attention to its statutory preconditions ([76]-[79]).
At [91], Sully J said s 9 required proper consideration of a report if it had been obtained, rather than requiring the judge to obtain one as a condition of proceeding. That is the majority's interpretation of the text. It does not remove the broader question of what information is appropriate for a particular discretionary decision.
At [102]-[104], Sully J drew the distinction between the pronouncement and the sentence imposed after it. The majority left the pronouncement standing but reduced the sentence from 14 years to eight. In plain English, it accepted the decision to invoke the Act but found that the maximum term went too far on the facts before it.
The guilty-plea reasoning is relevant where an offender has pleaded guilty, particularly at an early stage, and the sentencing judge has refused any recognition of the plea. The judgment does not make an early plea automatically decisive. The significance depends on timing, utilitarian value, and the particular circumstances ([50]-[53]).
The totality reasoning is relevant where a court sentences for multiple principal offences and also takes other offences into account. It supports a structured assessment of the principal offences, an adjustment for the additional matters, and a separate review of how the sentences should operate together ([40]-[43]).
The antecedent-history analysis is relevant where prior offending resembles or sheds light on the current offending. The judgment permits the history to inform culpability, deterrence, and protection of the public, while maintaining the proportionality limit described in Veen (No 2) ([36]).
The Habitual Criminals Act reasoning applies to the statutory framework discussed in this 2003 decision. It is pertinent to questions about proof of qualifying previous imprisonment, the meaning of the report provision in s 9, and the distinction between a pronouncement and the sentence that follows it ([79]-[92], [101]-[104]). The judgment itself does not establish that the same provisions remain in force or describe any later legislative changes.
The supplied judgment contains no account of later courts citing or applying Regina v Strong. It therefore does not provide a basis to say how subsequent courts have treated this decision.
The judgment does discuss earlier decisions and their role in its own reasoning. It applies Veen (No 2) to the relevance and limits of antecedent history, applies Thomson and Houlton to guilty-plea recognition, and refers to Riley on the cautious exercise of the habitual-criminal power ([36], [50], [76]). Buddin J also considered McGarry and Griffen in addressing the materials appropriate for an exceptional detention decision and the Court's ability to receive further material ([129]-[140]). Those are descriptions of authorities considered in this case, not evidence of how later courts treated Strong.
The decision itself contains a substantial disagreement about the habitual-criminal proceeding. The majority upheld the pronouncement and substituted a shorter sentence. Buddin J would have quashed both the pronouncement and its sentence and remitted the proceedings, in part because current psychiatric and probation material was unavailable to the primary judge ([140]-[149]). Any account of the judgment's precedential significance should keep that difference visible.
The judgment does not determine the precise amount of discount required for a guilty plea in other circumstances. It rejects an automatic fixed discount, but holds that the complete refusal to recognise this plea was an error given its timing and practical value ([50]-[53]).
It also does not resolve every question about the evidence necessary for a future-risk assessment under the Habitual Criminals Act. Sully J found the statutory preconditions and upheld the pronouncement on the record before the Court. Buddin J considered the material inadequate and emphasised the importance of current, comprehensive information where detention powers have serious consequences ([100], [127]-[140]).
The majority's interpretation of s 9 leaves a distinction between a report not being an absolute statutory precondition and a report being important to a fair, informed exercise of discretion. Buddin J's reasons highlight that distinction, although his view on the ultimate remedy was not the majority position ([91], [126]-[140]).
Finally, the judgment discusses difficulties associated with the Act, including the effects of concurrent sentences and release on licence, but does not resolve the broader policy questions. Those observations appear in Buddin J's separate reasons and should not be treated as holdings of the majority ([135]-[139]).
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INTRODUCTION 2 On 22 November 2000 the applicant, Mr. Strong, pleaded guilty in the Local Court at Armidale to two charges, each of which alleged an offence contrary to section 562AB of the Crimes Act 1900 (N.S.W.). Any such offence attracts a statutory maximum penalty of imprisonment for 5 years and/or a fine of $5,000. 3 The first of those two charges alleged that the applicant, between 29 January 2000 and 13 August 2000, had intimidated one Annissa Maree Widders with intent to cause fear or mental harm. 4 The second charge alleged that the applicant, between 13 August 2000 and 3 September 2000, had stalked the same victim with intent to cause fear or mental harm. 5 The applicant was remanded for sentence to the District Court. On 20 February 2001 he adhered to his pleas before his Honour Judge Freeman, then sitting in the District Court at Armidale. He asked that two further offences be taken into account pursuant to s 32 and s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW); and his Honour proceeded accordingly. The relevant formal documentation gave the following brief descriptions of the two further matters:
[1] An offence of using offensive language contrary to section 4(1)(b) of the Summary Offences Act 1988 (NSW) . This offence was allegedly committed on 3 September 2000. The applicant was allegedly standing outside the house of Miss Widders and was yelling in a loud voice "Annissa Widders I love you. Annissa Widders I fuckin' love you".
[2] An offence of being in custody of a knife in a public place contrary to section 11C(1) of the Summary Offences Act 1988 (NSW) . This offence allegedly occurred at about 12.10 a.m. on 4 October 2000. The applicant was allegedly seen acting suspiciously outside a Pizza Store in Enmore Road, Newtown. He was spoken to and searched by police, and was found to be in possession of a large black-handled knife with a 15 cm serrated blade. The knife was located concealed in the right sleeve of the applicant's jacket. 6 The materials which were tendered by the Crown at the District Court hearing included a Statement of Facts prepared by Det. Snr. Constable Stevens in connection with the intimidation, stalking, and offensive language matter; and a separate statement of facts prepared by Snr. Constable Metcalfe in connection with the knife-related matter. These two statements summarise as follows the relevant facts:
(1) Intimidation "On the 28th January 1998 ………..(the applicant)…………was arrested for other unrelated stalking matters and received a prison sentence. During his time in prison, ……..(the applicant) …….. has been sending numerous letters to the victim Annissa Widders to addresses in Armidale. Those letters were of an explicit sexual nature outlining explicit sexual acts that …….. (the applicant)…… stated he wanted to perform on Annissa Widders. These explicit acts included cunnilingus and sexual intercourse. (The applicant)…… has never been in any relationship with Annissa Widders at all and has no reason to make these written advances towards her. He has only seen her previously at a relative's house and the victim states that she has never given any inclination that she was interested in him. The victim has never liked ……… (the applicant) ……….. and he appears to have become infatuated with her and has been sending the letters. The victim Annissa Widders was shocked and worried when she found out that ……..(the applicant) ……… had written these letters to her."
(2) Stalking and offensive language "About mid-August 2000, (the applicant), moved into 20 Brogan Street, Armidale, which is directly across the road from 9 Brogan Street, Armidale, where the victim Annissa Widders is residing with relatives. (The applicant) has been watching the victim and her house from across the road. He has been bragging to other persons that the victim is 'his woman' and 'Missus'. He has written on a flag belonging to Angela Marlowe, which is on the wall inside 20 Brogan Street, the following: 'BOB STRONG LVS ANISSA WIDDERS 2000 FOREVER I LOVE YOU' 'BOB STRONG LVS ANNISSA WIDDERS FOREVER TRUE LOVE' Police have obtained a statement from Angela Marlowe who gives evidence that the defendant admitted writing that on the flag, and also evidence of (the applicant) watching the victim across the road. About 9.00 p.m. on the 1st September 2000, the defendant was outside the victim's house in the dark, and followed her when she left the house on foot to go out. The victim had to run to a friend's house to call a taxi to get away from (the applicant). Later that night, from about 2.30 a.m. to 3.00 a.m. on the 2nd September 2000 (the applicant) was watching the victim in Beardy Street, Armidale after she ………. (left) …….. hotels in the company of friends. He also continued to watch her whilst she was waiting with friends to catch a taxi home. On the night of Sunday the 3rd September 2000, (the applicant) was outside the victim's house at 9 Brogan Street, Armidale in an intoxicated state, and he was swearing and yelling abuse and threats towards the victim residing at 9 Brogan Street. (However the victim was not home at the time due to fear of injury or worse from (the applicant). ) Police have obtained a statement from a witness who saw and heard (the applicant) making these threats and abuse. The abuse and threats and offensive language included: 'ANNISSA WIDDERS I LOVE YOU' and 'ANNISSA WIDDERS I FUCKIN' LOVE YOU' This offensive language was yelled and shouted out loudly by (the applicant) who at the time was in the street outside 9 Brogan Street, Armidale. (The applicant) was also seen to enter the yard of 9 Brogan Street and was approaching the house, however a police vehicle patrolled the street and (the applicant) was not seen or heard again that night."
(3) Unlawful Custody of a knife "About 12.10 a.m. on Wednesday the 4th day of October 2000 police were patrolling within the vicinity of Enmore Road and Station Street, Newtown. (The applicant) was observed to be acting suspiciously around the Domino's Pizza Store located on Enmore Road, Newtown. Police approached (the applicant) whilst he was walking along Enmore Road. As police approached (the applicant) they observed that (the applicant) appeared to be concealing something within the right sleeve of his jacket. Upon searching (the applicant) police discovered a large black-handled knife with a 15 cm serrated blade. When spoken to (the applicant) stated that he was looking after the knife for his brother. CNI/warrant checks were conducted on (the applicant). These inquiries revealed that (the applicant) currently had three first instance warrants in existence for his arrest. (The applicant) was subsequently arrested and conveyed to the Newtown Police Station …………………… ." 7 The statement prepared by Det. Snr. Constable Stevens concludes with the following: "The victim Annissa Widders states that she is very scared of (the applicant), the way he is speaking about her as 'his woman' and the way he has been following her and watching her, making her feel very frightened. The victim states she is in fear of him trying to rape her or use violence on her due to his behaviour." 8 The applicant stood for sentence with a very bad antecedent history of criminal offences. It suffices to quote the following passages in the learned primary Judge's sentencing remarks: "The Crown tells me in very brief outline that in 1983 the prisoner sexually assaulted a 17 year old whom he chose apparently at random, and before he could be arrested for that a few days later he broke into the flat of an elderly woman, severely beat her and engaged in sexual assault inflicting very significant injuries upon her. These matters came before the court and an extremely lengthy sentence was imposed upon the prisoner then, which was reduced by the Court of Criminal Appeal, but nonetheless it appears that the prisoner served in the ultimate almost the whole period, including his parole term, before being released in April 1996. In January the following year he indecently assaulted a woman unknown to him, that is a stranger in the street, and received for that a six month term of imprisonment. In January of 1998 he was convicted on three charges of stalking an 18 year old who was apparently unknown to him, and was sentenced to two years imprisonment, which was reduced on appeal to a minimum term of 18 months. From that it would appear that he would have been released in July of 1999 but within two months of his release he committed an act of indecency which earned him a further six months imprisonment from September of that year, he being released on 16 March 2000. I recount that history in order to identify the fact that it was whilst he was in prison serving that term for the act of indecency which had followed so closely upon his imprisonment for stalking that he began to write these horrific letters to his present victim……………. Following his release in March there does not appear to have been anything noted about him until the middle of August, at least then Ms Widders saw him, observed him watching her, and thereafter he engaged in a series of activities following her, making proclamations concerning a supposed relationship between them, writing declarations of his desire for her on a flag which was kept in a family member's home near where she lived, following her little brother, and finally provoking her application for an apprehended violence order by screaming obscenities involving her outside the house in which she normally resided, most of one night. She did not happen to be present on that occasion." 9 It should be added that the apprehended violence order which is referred to in the "material" was served on the applicant on 5 September 2000. On the following day he left Armidale. He failed to appear, as he was required to do, at the Local Court in Armidale on 18 September 2000. He was at large until 4 October 2000 when he was apprehended in connection with the knife-related offence previously mentioned. 10 The learned primary Judge took a severe view of the objective gravity of the offences for which sentence was to be passed. His Honour said: "The charge of intimidation relates to him sending a series of sexually explicit, indeed disgustingly so, letters to the victim, a young woman with whom he had little proper acquaintance. He had seen her in the houses of friends and relatives, there had never been any relationship between them, and for him to write in the terms which are reproduced from memory in a couple of statements, is an extraordinary and worrisome act on the part of this man. He has a long history of violent sexual misbehaviour."
And later: "(Counsel then appearing for the applicant) …says that his client, the prisoner, is somehow under the misapprehension that these activities represent acceptable overtures. I don't doubt ……. (counsel) ….., but I certainly have difficulty in accepting that anyone, including the prisoner, could labour under such a misapprehension. He appears to have little history of normal relationships but it must be clear, that is he must know, that his conduct is of a sort which is likely to cause fear in those to whom he declares his interest. He has been told that by family and friends often enough. The real worry is that for his other violent sexual acts no punishment has produced any alteration in his behaviour. Actual sexual assault and stalking have in common the exhibition of power by the perpetrator over the victim. Extremes of stalking can cause an actual paralysis of will and destroy the life and life-style of the victim, and this victim is entitled to have felt the gravest of fears because within the community undoubtedly this prisoner's past history is known. The likelihood that his intimidatory and stalking activities would escalate into actual violence must appear to the victim to be extremely real, and indeed not just to the victim would such a development appear likely." 11 The remarks on sentence do not canvass the applicant's subjective features; but they do contain three other remarks which are significant for present purposes. 12 First, his Honour stated that he would allow, in connection with sentencing for the stalking offence, no discount whatsoever on account of the plea of guilty. His Honour accepted that the applicant had in fact pleaded guilty "on the first occasion on which he was brought before the court". His Honour said that, notwithstanding that consideration, he would allow the applicant no discount because of "the strength of the Crown case against him and his persistence in the most frightening and potentially violent form of stalking one is likely to encounter". 13 Secondly, his Honour stated his firm and strong view that: "given (the applicant'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". 14 Thirdly, his Honour found that there were "no special circumstances I can identify". 15 His Honour passed, ultimately, a sentence for the intimidation offence of imprisonment for 4 years commencing on 4 October 2000 and expiring on 3 October 2004; with a non-parole period of 3 years commencing on 4 October 2000 and expiring on 3 October 2003. 16 As to the stalking offence, and taking into account the two additional matters of offensive language, and unlawful custody of a knife, his Honour passed the statutory maximum sentence, that is, a sentence of imprisonment for 5 years. That sentence was dated to commence on 4 October 2003 and to expire on 3 October 2008. His Honour set a non-parole period of 3 years to commence on 4 October 2003 and to expire on 3 October 2006. 17 The effect of this sentencing structure was to pass head sentences accumulated so as to total 8 years with an effective overall non-parole period of 6 years. 18 The applicant asserts that the sentences thus passed upon him are manifestly excessive and call for a more lenient re-sentencing by this Court. The grounds of appeal will be considered later herein. 19 After the sentences had been passed, the Crown Prosecutor then appearing indicated that the Crown was intending to make an application to have the applicant declared, and sentenced further as, an habitual criminal pursuant to the Habitual Criminals Act 1957 (NSW). 20 That application came before his Honour, then sitting in Sydney, on 27 June 2001. 21 On that occasion, counsel then appearing for the present applicant took a preliminary objection to the jurisdiction of the Court to entertain the application brought pursuant to the Habitual Criminals Act. The objection was essentially a simple one. It postulated that the proper construction of the Habitual Criminals Act required that, in the circumstances of the present applicant's case, his sentencing for the substantive offences had to be contemporaneous with his pronouncement, and his consequent further sentencing, as an habitual criminal. 22 His Honour, in a judgment given ex tempore, over-ruled the objection; and proceeded thereupon to deal with the Crown application. 23 It will be necessary to return to some of the detail of the hearing of that application. It suffices for the present to note that the Crown case was based upon a collection of documents that had been forwarded to the Judge in advance of the actual hearing on 27 June 2001. There was, otherwise, no evidence either oral or documentary. 24 On 29 June 2001 his Honour gave judgment on the Crown application. The application was granted. The present applicant was formally pronounced to be an habitual criminal; and he was sentenced thereupon to imprisonment for a term of 14 years, dated to commence on 4 October 2000, the same date as had been set for the commencement of the sentences that had been earlier passed on 20 February 2001. 25 The applicant challenges both the pronouncement and the consequent sentence.
The Grounds of Appeal 26 As to the sentences passed on 20 February 2001, there are in all six grounds of appeal. As to the pronouncement made, and the sentence passed, pursuant to the Habitual Criminals Act, there are nine grounds of appeal. 27 As to the sentences passed on 20 February 2001, each ground of appeal will be discussed separately in what follows. The terms of each ground will be set out as an introduction to the discussion of that particular ground.
The Substantive Offences - Ground 1 28 The ground is: "The learned sentencing Judge erred in imposing 'worst case' sentences for the intimidation and stalking offences". 29 The appellant submits that the sentencing Judge treated each of the intimidation and stalking charges as a "worst case" offence, when the evidence, fairly assessed, did not support such a view. 30 The evidence of Miss Widders, the object of the applicant's attentions, is contained in a lengthy statement given by her on 5 September 2000 to Det. Snr. Constable Stevens. It is the case, as the appellant submits, that Miss Widders reacted initially to the appellant's letters to her, after one of them had first been brought to her attention, by feeling "shocked and worried". 31 It is also the case, as the applicant further submits, that Miss Widders goes on in her statement to say that she "wasn't really frightened at the time". What she really meant by those remarks is obvious from the words immediately following in her statement: "……because I knew that he was locked up, but it did worry me".
32 The evidence of Miss Widders in connection with the stalking charge is much more extensive, and much more stark in the description of the effect upon her of the various occasions of stalking. 33 Speaking of an occasion dated at about mid-August, (see paragraph 12 of the statement), Miss Widders says that as soon as she saw the appellant: "………. I was frightened and scared because of all the letters that he had sent to me before. He saw me and knows who I am and I am scared about what he might do to me". 34 Speaking of an outing which she wanted to have on the evening of 1 September 2000, Miss Widders says, (paragraph 21 of her statement), that she had her brother walk her to the bus stop "because I didn't want to walk by myself. I have walked there many times before by myself, but I was really worried and scared about what I was told (the applicant) was saying about me ……….". 35 In the following paragraphs of her statement, Miss Widders gives a reasonably detailed description of the events of the evening. It is clear from what she describes that the appearance on the scene of the applicant so frightened her that she went to the nearby home of friends and enlisted their help in getting a taxi to take her safely to her next destination. As the evening wore on and into the early hours of 2 September 2000, the applicant continued to shadow the movements of Miss Widders. Her description of these incidents makes repeated reference to her real fear of what the applicant might do to her. Miss Widders concludes her statement to the police with a paragraph which is, in my opinion, of considerable present significance. It has been quoted earlier at paragraph 7. 36 It seems to me that the present case is one of those cases where there is not much that is of practical utility to be drawn from an extended debate about whether the sentencing Judge did in fact treat the two principal charges as "worst case" offences, and if so with what justification. I would prefer the following analysis:
[1] The two principal offences are not, generically, trivial offences. They give effect to a public policy that, relevantly, young and potentially vulnerable women like Miss Widders should be able to come and go about their lawful affairs without having to be constantly under a cloud of fear for their physical safety, that fear deriving from the uninvited, unprovoked and unwelcome attentions of some other or others.
[2] It was not put to the sentencing Judge, for there was no evidence capable of supporting such a submission, that the expressed fears of Miss Widders were untruthful, unreliable for some other reason, or significantly exaggerated.
[3] There was evidence put before his Honour as to the applicant's record of previous relevant offences. That record was troubling in that the applicant was shown to be a repeat offender in connection with sex-related offences, one of which was an offence of stalking.
[4] Counsel who appeared for the applicant at the sentencing proceedings in the District Court apparently made a submission, noted by the sentencing Judge in the remarks on sentence, that the applicant is "somehow under the misapprehension that these activities represent acceptable overtures" .
There was not, so far as I can see from the relevant Court transcript, anything put before his Honour in the way of a psychiatric report, psychological report, or an independent assessment of any other kind, apt, if accepted, to support the particular submission thus put to the sentencing Judge.
[5] Neither was there put to his Honour, as least so far as I can divine from that transcript, any other material bearing upon subjective considerations particular to the applicant.
[6] The entirety of the material placed before the sentencing Judge seems to me to have justified amply the following conclusions:
6.1 That the two principal offences were, both in absolute and in comparative terms, serious offences of their respective kinds.
6.2 That each of the two principal offences was aggravated by the factor referred to in [3] above.
6.3 That the additional offences, which the applicant himself had asked to be taken into account, had to be brought in fact to some proper account. That entailed necessarily some upward adjustment of the overall sentencing result that would have been achieved otherwise.
6.4 That in the case of each of the intimidation and stalking offences it was appropriate to regard the applicant's objective criminality, untempered by any subjective considerations, as calling for a sentence at the upper, rather than the lower, limit of the relevant statutory range. 6.5. That any leniency that might be attracted on account of subjective considerations must be reduced, if not withheld completely, because of the presence, in the applicant's particular case, of precisely the elements that the High Court of Australia described in Veen (No. 2) v The Queen (1988) 164 CLR 465, as justifying an approach, namely: "It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible." [164 CLR, 473]
And later: "There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. …………………………… The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." [164 CLR, 477] 37 Upon the basis of the foregoing analysis, I would not uphold Ground 1. Whether that entails that the sentences are let stand depends upon the resolution of the remaining grounds of appeal.
The Substantive Offences - Ground 2 38 The ground is: "The sentencing Judge erred in failing to apply the totality principle and/or in accumulating the sentences." 39 The applicant's first submission is that the sentencing Judge was obliged, by reason of principles established by the decision of the High Court of Australia in Pearce v The Queen (1998) 194 CLR 610, to fix initially four separate sentences, two of which would have related specifically to the two additional matters that were taken into account at the applicant's own request. 40 I do not accept this submission because: first, that is not what section 33 of the Crimes (Sentencing Procedure) Act requires; secondly, because that is neither expressed nor implied in the principles which are stated comprehensively by this Court in Reg v Perese [2001] NSWCCA 478; and thirdly, because Pearce itself was not dealing with the special requirements of Pt. 3, Div. 3 of the Crimes (Sentencing Procedure) Act. 41 What was required of his Honour by the totality principle was, in my opinion, an approach along these lines:
[1] The setting of a proper sentence for each, individually, of the two principal offences. "A proper sentence" means a sentence representing a fair balancing, according to the available evidence, of the relevant objective and subjective considerations.
[2] The proper adjustment of at least one of those sentences so as to impose some appropriate punishment for the two additional matters. In this connection, I am of the opinion that the nature of the two additional matters was such as to call for a modest increase in the sentence otherwise appropriate to the relevant principal offences.
[3] The proper review of the two proposed sentences so as to determine, but according to correct principle correctly applied, whether the two proposed sentences should be made concurrent, cumulative, or partially concurrent and partially cumulative. The correct principles in that connection are well established: Wilkins v Reg. (1988) A Crim R 445, especially per Lee CJ at CL, Carruthers J concurring. 42 The entirety of the evidence which was placed before the sentencing Judge, if tested according to the foregoing approach, does not yield, in my opinion, the conclusion that his Honour failed to apply the totality principle. It seems to me that his Honour's approach suggests, rather, that his Honour was very much alive to the need to assess total criminality. 43 That his Honour erred in deciding upon a partial accumulation has not been, in my opinion, established. The motive for the intimidation and the motive for the stalking were arguably the same, but that itself does not require only the imposition of wholly concurrent sentences: Reg v Spiero (1979) 22 SASR 543. The offences were distinct in character. They were committed at different times. Each offence embraced a series of discrete incidents of offending conduct. In those circumstances, I would not accept the submission that it was not reasonably open to his Honour to structure the sentences, as his Honour did, so as to make them concurrent in part and cumulative in part. 44 45 Whether or not the actual end result at which his Honour arrived ultimately ought to stand, is a question to be considered later, and separately from the identified particular errors which the applicant alleges. 46 I would not uphold Ground 2.
The Substantive Offences - Ground 3 47 The ground is: "The sentencing Judge erred in not discounting the sentence for stalking by reason of the applicant's plea of guilty at the first possible opportunity." 48 I infer that his Honour did allow some discount for the plea of guilty entered to the intimidation charge. His Honour's expressed opinion that the statutory maximum "range of penalty available is barely adequate" seems to have been a general opinion intended to catch both the intimidation and the stalking charges. If that be a correct understanding, then it seems that his Honour allowed some reduction on the intimidation charge, - from imprisonment for 5 years to imprisonment for 4 years, - and the recognition of the plea of guilty seems to be the likeliest explanation for that reduction, although his Honour nowhere says so in terms. 49 His Honour specifically refused to make any allowance for the plea of guilty entered to the stalking charge. His Honour's expressed reasons were: "the strength of the Crown case against him and his persistence in the most frightening and potentially violent form of stalking one is likely to encounter". 50 I take the relevant principles to be these:
[1] A sentencing Judge must take into account both the fact that the person standing for sentence has pleaded guilty to the offence for which sentence is to be passed and the time at which such plea was entered, or first foreshadowed: s 22(1) of the Crimes (Sentencing Procedure) Act 1999 .
[2] As a result of doing so, the Judge "may impose a lesser penalty than …(the Judge) …would otherwise have imposed" : ibid
[3] In New South Wales there are two distinct bases upon which recognition is given to a plea of guilty. One is the utilitarian value of the plea. The other is the value of the plea as an indication by the offender of genuine contrition for the offence.
[4] The recognition of the utilitarian value of the plea is conditioned by considerations which are stated as follows in the judgment of Spigelman CJ in Reg v Thomson and Houlton (2000) 49 NSWLR 383: "(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25% discount on sentence. The primary consideration determining where in the range a particular case should fall is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount."
[5] The recognition of a plea of guilty as an expression of contrition is conditioned by a consideration of the apparent inevitability of conviction had the offender pleaded not guilty and gone to trial. 51 In the present applicant's case there was, in my opinion, some room for the recognition of his plea of guilty to each of the two principal charges. I would reject out of hand any suggestion that the appellant was entitled to a virtually automatic 25 per cent discount on each sentence because of the utilitarian value of his two pleas of guilty. His standing as a serious and recidivist sex offender would suffice without more, in my opinion, to rebut that approach to the application of Thomson and Houlton. I do think, however, that a significant feature of the utilitarian value of the applicant's pleas was the fact that it became thereupon unnecessary to submit Miss Widders to the twin ordeals of an in-Court confrontation with the applicant, and a cross-examination which would have been, on any reasonable view, a painful experience for her. 52 I am, therefore, of the opinion that the learned sentencing Judge did fall into error in declining any discount of the sentence for the stalking offence. It need only have been, in my view, a modest discount in the light of, particularly, the Veen (No. 2) principles earlier mentioned herein at paragraph 36. I do not think, however, that the applicant's offences, serious as they undoubtedly were, disentitled him to any, albeit a properly modest, recognition of both of his pleas. 53 As to the matter of contrition manifested by the pleas, the Crown case was, in my opinion, both clear and strong on both principal charges; and, indeed, upon the two additional matters. In the circumstances of this applicant's case, I am of the opinion that a proper utilitarian discount would be sufficient to do justice. 54 It is expedient to defer, once again, consideration of what ultimate result might flow, in this Court, from the identified error.
The Substantive Offences - Ground 4 55 The ground is: "The learned sentencing Judge erred in finding that there were no special circumstances." 56 In the present case the correct starting point is, in my opinion, the following statement of principle taken from the judgment of Spigelman CJ in Reg v Simpson (2001) 53 NSWLR 704 at paragraph 73: "One practical effect of the statutory proportion has been to create a field of disputation which enables matters of fact and judgment to be expressed as if they constituted propositions of law. This arises only because the fetter is expressed in words which suggest a legal standard. It will be a very rare case in which there is no fact capable as a matter of law, of constituting a 'special circumstance'. The decision is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive." 57 The applicant submits that the sentencing Judge ought to have found special circumstances as constituted by "the applicant's institutionalisation and mental condition". I take this to mean that special circumstances should have been found in connection with the intimidation sentence; and that the allowance made for special circumstances in the stalking sentence ought to have been greater, on account of "institutionalisation and mental condition". 58 I do not accept these submissions. Even if it be assumed that his Honour erred in not finding special circumstances constituted by "institutionalisation and mental condition", it would not follow, in my opinion, that this Court should now intervene and disturb the non-parole periods set by his Honour. If it be accepted that the head sentences in fact passed are sustainable, then in my opinion the applicant's antecedent history would justify, from the point of view especially of the proper protection of the public, the fixing of non-parole periods in the order of the statutory proportion. 59 I would not uphold Ground 4.
The Substantive Offences - Ground 5 60 The ground is: "In all of the circumstances the sentences for Intimidation and Stalking are manifestly excessive." 61 The effect of the view that I take of Grounds 1 through 4 is that there has been identified one specific error, namely that raised by Ground 3. the nature of that error seems to me to be such as to require some measure of intervention by this Court. The measure of that intervention will depend upon the view take by this Court of the entirety of the evidence adduced on the hearing of the application for leave to appeal against the sentences passed in connection with the substantive offences. 62 Before dealing with that matter, it is convenient to note Ground 6. That ground is: "On the basis of fresh evidence as to mental disorder the sentences were not warranted in law or were manifestly excessive in the circumstances.: 63 Since there is to be, without particular reliance upon Ground 6, some intervention by this Court; and since the evidence which was placed before the Court for its consideration in that respect is the so-called "fresh evidence as to mental disorder"; I do not see any purpose in dealing specifically with Ground 6.
The Substantive Offences: Resentencing 64 It is useful to take as a starting point the following statement of principle with which Gleeson CJ introduces his Honour's judgment in Reg v Engert (1995) 84 A Crim R 67 at 68: "Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen (No. 2) (1988) 164 CLR 456 at 476; 33 A Crim R 230 at 237-238 as follows: "… protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform." A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No. 2) . Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender. It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise." 65 That the appellant suffers from serious mental problems is, in my opinion, clear from a number of psychiatric reports tendered in connection with any re-sentencing by this Court. Two such reports are from Dr. Stephen Allnutt, a specialist forensic psychiatrist: one is dated 16 July 2002, and the other is dated 19 September 2002. There is a single report dated 11 March 2003 from Dr. Olav Nielssen, also a special forensic psychiatrist; and the applicant's treating psychiatrist during the latter part of last year and the early part of this year. 66 Dr. Allnutt's first report was prepared after he had interviewed the applicant on three occasions. The report reviews in careful detail the applicant's personal and psychiatric background. It is noted by Dr. Allnutt that the applicant "has presented as a diagnostic dilemma since at least 1979"', and that in Dr. Allnutt's own view the applicant "meets legal criteria for 'mental disorder'. It is also possible that he periodically meets legal criteria for 'mental illness'." 67 The following excerpts from Dr. Allnutt's report explain those opinions of the doctor, and give useful insights into the situation with which this Court has now to deal: "Your client reported that he had minimised his symptoms in the past. When I put to him that to previous psychiatrists he had denied hearing voices, he stated, "I wanted them to get off my back. They write reports about me and turn them all around". On another occasion he said, "They write fabricated lies about me. I don't like speaking to them. They lie that I am a paranoid schizophrenic". He had been engaging in activities in gaol. Since coming to gaol, he had been doing aboriginal art. He had begun a Year 10 certificate. He was also using the computer. He had made a few associates with whom he socialised. He was sleeping and eating reasonably well and maintained adequate concentration, motivation and energy. He showed interest in antipsychotic medications but not sex drive suppressants. I asked him whether or not he would be prepared to take any medications. He stated, "If it's going to help me". I asked him whether he would be prepared to take any sex drive suppressant medication and he adamantly refused. He was however prepared to take medication "to take the voices away". He had been essentially abstinent from substances since his incarceration. I asked him whether he had used any substances since his incarceration and he reported on one occasion in Tamworth he received a charge for this and received punishment. He denied any other substance abuse during this incarceration. He also denied substance abuse in any other periods of incarceration. He had made no attempts at self-harm, stating "I haven't had the chance". He denied being diagnosed with any medical problems." 'Unfortunately, I was unable to evaluate his paranoid beliefs, ideas of reference, erotomaniac beliefs or ideas of external control in great depth. The presence of these phenomena in my view strengthens the argument that he may experience episodes of mental illness, because they are of the kinds of thought that people suffering psychosis report. However they may be overvalued ideas and not delusions. Overvalued ideas are unusual beliefs that are firmly held by the individual and are generally maladaptive but ultimately understandable in the context of the person's life. Thus they are believed to derive from the personality, not the illness. Overvalued ideas lie on (the) same spectrum as delusional beliefs, as described above. It is often difficult to distinguish overvalued ideas from delusional beliefs. All the above must also be considered in the context of a number of other factors. He has had multiple admission to psychiatric hospitals, predominantly Long Bay Hospital during his periods of incarceration. Admissions have been precipitated by threats of self-harm, threatening behaviour towards women and his reports of hearing voices. He has engaged in self-harm attempts in response to voices and has manifested aggression towards others. He has been treated with antipsychotic medications and antidepressants. He has tended to improve fairly rapidly. His recovery has sometimes occurred with medication. On other occasions recovery seems to have occurred spontaneously. He has been evaluated and come under the care of many different psychiatrists and psychiatric registrars. These specialists have been divided in their diagnostic formulation of your client. Some have diagnosed him with Personality Disorder of a Narcissistic, Borderline and Antisocial nature. Others have diagnosed him as suffering from a psychotic mental illness including Delusional Disorder, Schizophrenia and Psychotic Depression. Some psychiatrists have seen him as suffering from both a Personality Disorder and a Psychotic Disorder. Some psychiatrists have concluded that at the time that they assessed your client, he did not manifest symptoms of psychosis but likely had experienced them at some period of time prior to their assessment. Such varied opinion is not uncommon in psychiatry especially when the subject is reporting symptoms such as voices and paranoid thoughts. Your client presents as an extremely disturbed individual who tends to misperceive and misinterpret his environment to the extent that his behaviours are threatening to others and self-destructive to himself. In my view, your client's psychiatric disorder likely lies somewhere on the spectrum between that of a severe Mixed Personality Disorder predominantly of a paranoid nature with antisocial and borderline personality traits and Psychotic Disorder. Such a condition would in my view meet legal criteria for "mental disorder". It is probable that he experiences periods where his ability to rationally interpret his perceptual experiences as "real" or not, and make realistic evaluations of his beliefs about his environment is significantly impaired and hold beliefs of a delusional intensity and experience auditory hallucinations. At such times he can be regarded as suffering symptoms of psychosis. On these occasions, he would meet legal criteria for "mental illness". In this case, based on the information available to me it is not possible to exclude the presence of an intermittent psychotic mental illness with reasonable medical certainty." "Re Mental State at the Time of the Offence Your client gave me a brief outline of his understanding of how the offence unfolded and he told me that he had been hearing voices telling him to harm the victim. He then refused to speak to me any further. I was therefore unable to clarify the nature of the voices. It is possible that these phenomena may have been of a psychotic nature. If this were the case then the voices and beliefs associated with the voices would have likely impacted on his judgment at (the) time." 68 Looking more particularly at the offences committed against Miss Widders, Dr. Allnutt notes: "I asked him to explain how it came about that he had fallen in love with this woman. He then stated that he was "using her". He said he was going to get her to a place where he was going to harm her. The voices were telling him to do this. She had tried to get into his mind and tried to tell him she wanted to be with him for the rest of his life. She was saying she wanted to be with him. When I asked him how he knew this, he said she had told him on the occasions they had spoken. He said that she had told him she was in love with him. He would not go any further in relation to this." 69 Dr. Allnutt's second report was prepared in response to a request for the doctor's opinion about the applicant's future treatment, both while incarcerated, and post-incarceration. Dr. Nielssen's report is shorter, but is in the same vein. It suffices to quote from Dr. Nielssen's report: "Mr Strong requires ongoing psychiatric care, including long term treatment with psychotropic medication under the supervision of a psychiatrist. He also carries a greater risk of developing a florid mental illness if he were to resume using illicit drugs at any stage." 70 The three foregoing reports paint a sad picture of the applicant as a person whose real psychiatric problems are superimposed upon a background of economic and social disadvantage, and upon a history of drug abuse. The applicant, while in his current detention, has made efforts to acquire personal living and other useful skills. The incidents of his current imprisonment are best put in his own words, taken from an affidavit sworn by him on 13 March 2003 for use in the event of re-sentencing by this Court: "3. Ever since I came to gaol this time I have been on strict protection. Both the Long Bay and the Bathurst Crisis Units were difficult places because there was very little to do. Inmates are not allowed to have items in their cells such as a television or a radio and are removed from other parts of the gaol. I spent a lot of time on my own and only had a job as a sweeper for the last four months I was in Long Bay. 4. In January 2003 I was transferred to Junee gaol. I am still on strict protection but am now in a wing with a number of other inmates, including some other Kooris. It is better than the Crisis Units because there is room to move around and an oval we can go to. 5. I have not seen a psychiatrist since I was moved to Junee. I receive medication every day from a nurse. I was put on the medication by a psychiatrist at Long Bay in 2002. The medication calms me down and stops me hearing voices. I feel better than I did before." 71 In the applicant's particular case, it is, in my opinion, necessary to strike the required balance of objective criminality and subjective features in a way that:
(a) builds in some proper recognition of the pleas of guilty; but
(b) gives effect to the considerations earlier herein discussed by reference to Veen (No. 2) ; and
(c) keeps sensibly, but firmly, in the forefront of the re-sentencing exercise the imperative obligation of the Court to ensure the proper protection of the public. 72 I do not find this an easy exercise; but my conclusion is that justice would be done by the re-sentencing of the applicant as follows:
(a) for the offence of intimidation, a head sentence of imprisonment for 3 years;
(b) for the offence of stalking, and taking into account the two additional matters which the applicant asks to have taken into account, a head sentence of imprisonment for 4-1/2 years. The disparity between the two head sentences is explained: first , by the need for some increase in order to penalise the two additional matters; and secondly , to distinguish between an offence committed when the applicant was not within actual physical reach of Miss Widders; and an offence committed when he was within such reach of her.
(c) a measure of cumulation of the head sentences, but not a simple aggregation of the sentences. Totality and proportionality according to law would be achieved justly, in my opinion, by requiring the applicant to serve in actual custody 5 years of total head sentences of 7 years. 73 To those ends I favour the following orders:
[1] that leave to appeal against both sentences be granted
[2] that both sentences passed in the District Court be quashed;
3.1 On Count 1 of the indictment, to imprisonment for a period of 3 years to commence on 4 October 2000 and to expire on 3 October 2003; no non-parole period being specified because of the partial cumulation of the sentences on Counts 1 and 2 of the indictment;
3.2 On Count 2 of the indictment, to imprisonment for a period of 4-1/2 years to commence on 4 April 2003 and to expire on 3 October 2007, with a non-parole period of 2-1/2 years to commence on 4 April 2003 and to expire on 3 October 2005.
[4] that the Registrar of the Court forward urgently to the Commissioner of Corrective Services a copy of the medical reports referred to in paragraph 65 of this judgment, together with the recommendation that the same be attached permanently to the applicant's departmental files.
The Habitual Criminals Act Proceedings and Sentence - Grounds of Appeal Generally 74 No less than nine grounds were notified and argued. Those grounds are:
There was no evidence according to the mode of proof authorised that the applicant had on two occasions previously served separate terms of imprisonment.
His Honour erred in making a pronouncement without first finding that the Applicant had on two occasions previously served separate terms of imprisonment within the meaning of the Act.
In the alternative, his Honour erred in finding that the Applicant had on two occasions previously served separate terms of imprisonment within the meaning of the Act.
His Honour erred in the exercise of his discretion to make a pronouncement by failing to obtain a report from the Adult Probation Service or the Probation and Parole Service.
His Honour erred in the exercise of his discretion to make a pronouncement by drawing inferences which were not reasonably available on the evidence and relying upon those inferences.
His Honour erred in the exercise of his discretion to make a pronouncement, and in passing sentence under the Habitual Criminals Act , by failing to take into account the Applicant's subjective circumstances.
His Honour erred in failing to give reasons for imposing the maximum sentence under the Habitual Criminals Act.
The sentence passed under the Habitual Criminals Act was excessive in all the circumstances.
On the basis of fresh evidence as to mental disorder, the pronouncement of the Applicant as an habitual criminal and the consequent sentence were not warranted in law. 75 The right of the applicant to seek relief from this Court derives from section 5E(a) of the Criminal Appeal Act 1912 (NSW). The applicant requires, initially, leave to appeal against either or both of his pronouncement and sentence pursuant to the Habitual Criminals Act. Leave once granted, the substantive appeal is governed by section 6(3) of the Criminal Appeal Act. 76 There can be no gainsaying that the powers of pronouncement and imprisonment for which the Habitual Criminals Act provides are draconian powers having a very far-reaching potential effect upon the life and liberty of any person who is so pronounced and imprisoned. It was recognised by this Court, (McClemens CJ at Cl, Begg and Lee JJ), in Reg v Riley (1973) 2 NSWLR 107, that the power to pronounce a person to be an habitual criminal "is a power not to be exercised lightly", and is, moreover, "a discretionary power that ought not to be exercised unless it can be predicted with reasonable confidence that at the expiration of any term of imprisonment appropriate by current standards to the offences for which …….(the person) ….. is being sentenced, ………(he)…… will resume …….(criminal activities)" (1973) 2NSWLR at 112A, B. 77 I note the observation, which follows immediately, that "(t)he courts in this State have been unwilling to make the pronouncement as appears from the very small number of persons so declared ……….". I note the provision, made by section 6 of the Habitual Criminals Act, for a mandatory sentence, after pronouncement, of not less than 5, and not more than 14, years' imprisonment. 78 I take it to be a logical extension of the reasoning in Riley, and an occasion for applying what is, otherwise, a well-entrenched principle of criminal justice, that a pronouncement is not to be made, and a consequential sentence passed, without strict compliance with any statutory pre-conditions. 79 Section 4 of the Habitual Criminals Act prescribes a number of such pre-conditions. They are:
[1] that the particular offender be of or above the age of 25 years. The present applicant was born on 7 June 1959. He was, therefore, well above the age of 25 years as at 29 June 2001.
[2] that the offender be first convicted on indictment. The applicant was, plainly, so convicted on 20 February 2001. He was brought before the District Court pursuant to s 51A of the Justices Act ; but was dealt with by the District Court in all respects as though he had been indicted pursuant to s 51A (d) (ii).
[3] that the offender "has on at least two occasions previously served separate terms of imprisonment as a consequence of convictions of indictable offences, not being indictable offences that were dealt with summarily without his consent" . The applicant contends that this statutory provision was not fulfilled: see Grounds 1, 2 and 3.
[4] that the Judge who has been asked to pronounce, and then to sentence, pursuant to the Act, be "satisfied that it is expedient with a view to such person's reformation or the prevention of crime that such person should be detained in prison for a substantial time" .
[5] that the Judge "consider any report in respect of such person that may be obtained by such judge from the Adult Probation Service" : see section 9 of the Act.
[6] that the Judge exercise, thereupon, a discretion reposed in him by the Act, in fact to proceed to a pronouncement and consequential sentence. The applicant contends that the requirements 5 and 6 above were not satisfied: see Grounds 3, 4, 5 and 6.
The Habitual Criminals Act Proceedings and Sentence: the Statutory Pre-condition Number 3 above 80 The pre-condition requires proof of two distinct, albeit related, facts, namely:
[1] that the offender has served at least two previous and separate terms of imprisonment; and,
[2] that each such previous and separate term of imprisonment, if relied upon in support of an application for pronouncement and sentence pursuant to the Habitual Criminals Act , should have been served by way of sentence passed following a conviction upon indictment. 81 Provision is made by section 5 of the Habitual Criminals Act for specific, although not exclusive, means of proof of each of these two facts. 82 Proof of the antecedent convictions may be given by means of a certificate complying with section 5(1) of the Act. In the present case, certificates of conviction were tendered in proof of, relevantly, a conviction in the District Court at Sydney on 27 September 1977 and the passing, upon that day, of a sentence of imprisonment; and of four convictions recorded, either on 5 July 1983 when pleas of guilty were entered, or on 30 November 1983 when sentences of imprisonment were passed, in the Supreme Court at Sydney. It is, in my opinion, clear that these certificates were formally tendered to Judge Freeman, and were received and considered by his Honour. In my opinion these certificates complied with section 5(1) of the Habitual Criminals Act. 83 Proof of the antecedent service of terms of imprisonment may be given by "producing" a certificate under the hand of the Commissioner of Corrective Services. The certificate must comply with section 5(2) of the Act. Absent any dispute about the particular offender's identification with the offender named in such a certificate, - (and there was, and is, no such dispute in the present case), - the certificate must specify "the term of such imprisonment and the convictions in respect whereof such person was imprisoned". 84 It is clear, in my opinion, that a certificate purporting to comply with section 5(2) was obtained from the Commissioner of Corrective Services. Two points are taken in respect of that certificate: first, that there is no sufficient proof that the material was properly before Judge Freeman; and secondly, that the certificate is inadequate in form. The certificate is copied as annexure E to an affidavit sworn on 13 March 2003 in connection with the present application, by Mr. Paul Clark, the solicitor who prepared, and subsequently instructed Crown counsel at, the hearing of the Habitual Criminals Act application. 85 At the hearing of the present application there was extensive argument upon the first of those two points. Such evidence as there is seems to me to establish these propositions:
[1] The Commissioner's certificate was not formally marked as an exhibit, or otherwise marked for identification. (It appears, interestingly, that the certificates of conviction were marked as exhibit 1, although no record to that effect appears in the relevant Court transcript: see the note from Judge Freeman's Associate that is annexure A to the affidavit of Kimberly Sobb, solicitor, sworn on 13 March 2002 in connection with the present application).
[2] The circumstances leading up to the obtaining of the Commissioner's certificate, and concerning its use thereafter, are detailed in the affidavit, previously mentioned, of Mr. Clark: see in particular paragraphs 17 through 22.
[3] It is a fair inference from that affidavit of Mr. Clark that the Commissioner's certificate was included in a large bundle of documents provided by the Crown, in advance of the hearing on 27 June 2001, to Judge Freeman.
[4] It is a further fair inference that his Honour, Crown counsel, and counsel then appearing for the applicant, had in hand throughout the hearing on 27 June 2001 the Commissioner's certificate. That further inference arises, in my opinion, both from Mr. Clark's affidavit, and from a consideration of the course of the hearing before Judge Freeman as evidenced by the relevant Court transcript.
[5] The inference numbered 4 above is strengthened:
5.1 by the absence of any cross-examination of Mr. Clark upon his affidavit;
5.2 by the absence of any affidavit evidence from those who represented the applicant at the hearing on 27 June 2001. Interestingly, counsel who then appeared, (but who was not counsel before this Court), did swear an affidavit in connection with the present proceedings; but such affidavit deals only with the matter of the obtaining of psychiatric evidence; and nowhere suggests any lack of awareness, on 27 June 2001, of the Commissioner's certificate; or any apprehension then entertained that the certificate was deficient either in form or in content.
[6] Given the whole of the foregoing facts and circumstances, it is proper for this Court to proceed upon the footing that the Commissioner's certificate was in fact produced at the primary hearing; was properly admissible in evidence; and was treated both by the Judge and by both counsel, as being properly before the Judge. See: Watson v The Superintendent, Metropolitan Reception Centre (1971) 1 NSWLR 67, per Isaacs J, especially at 71C, D; R v Malcolm (1908) 8 SR (NSW) 6, followed by Gordon J in Ex parte Bowen (1917) 34 WN (NSW) 41. 86 In my opinion the applicant's first point has not been made good. 87 As to the form of the Commissioner's certificate, I agree with the Crown submission that the six pages which make up the certificate must be read with common sense as a whole. So read, the certificate establishes, in my opinion:
[1] that on 27 September 1977 the applicant was sentenced to imprisonment for a term of 4 years 6 months to date from 27 September 1977; a non-parole period of 2 years being specified;
[2] that such sentence was passed following upon the applicant's conviction in the District Court of the offence of assault with intent to rape;
[3] that the applicant was received accordingly into custody on 27 May 1977 and was discharged from that custody on 8 May 1980;
[4] that the applicant was sentenced to a term of imprisonment of 1 month, to date from 8 July 1983; such imprisonment being ordered upon conviction on 8 July 1983 in a Local Court, and therefore not after conviction upon indictment;
[5] that the applicant was received into remand custody on 7 May 1983; continued in custody upon his being sentenced on 8 July 1983; and would have been entitled to discharge from that custody on 29 July 1983 had it not been for the matters mentioned in the following paragraph hereof;
[6] that on 29 July 1983 the applicant was in remand custody in connection with four serious indictable offences, detailed in the Commissioner's certificate, in respect of which the applicant stood for sentence on 30 November 1983 after conviction in the Supreme Court;
[7] that the applicant was then sentenced to a series of terms of imprisonment, the structure of which entailed, put simply, a total of 25 years to date from 2 May 1983, with a non-parole period to expire on 2 May 1997;
[8] that the applicant appealed to the Court of Criminal Appeal against the asserted severity of those sentences, and remained in custody serving his sentences until the appeal was determined on 15 June 1984;
[9] that the appeal was successful to the extent that two of the four sentences were reduced, and the series of four sentences was restructured so as to entail, put simply, a total of 20 years to date from 2 May 1983 with a non-parole period to expire on 2 May 1997;
[10] that the applicant served his non-parole period, and was discharged from that custody, after having been credited with appropriate remissions, on 23 April 1996;
[11] that the applicant had served previously to his convictions upon indictment on 20 February 2001, two separate terms of imprisonment satisfying the requirements of section 4(1) of the Habitual Criminals Act . 88 In my opinion the applicant's second point has not been made good.
The Habitual Criminals Act Proceedings and Sentence: the Statutory Pre-condition Numbered 5 above 89 The applicant submits that, since the Adult Probation Service had ceased to exist prior to 2001, section 9 of the Habitual Criminals Act "raises the question whether the Act has fallen into disuse". 90 I do not see that proposition as being quite in point. What is really in point is whether section 9, upon its proper construction, requires that a Judge who is proposing to pronounce and sentence pursuant to the Act is obliged, as a statutory pre-condition of so proceeding, to obtain a report, if not from the Adult Probation Service, then from the Probation and Parole Service which does now what the Adult Probation Service did formerly. 91 In my opinion, the language of section 9, given its ordinary grammatical meaning in the context of the statutory scheme of which it is a part, does not lay down, as an absolute pre-condition, that a report must first be obtained. All that the section requires is that should such a report be placed before the Judge, then the Judge, before proceeding to pronounce and sentence, must give proper judicial consideration to the contents of the report. 92 I would not uphold the contrary proposition that founds Ground of Appeal 4.
The Habitual Criminals Act Proceedings and Sentence: Did the Learned Primary Judge's Statutory Discretion Miscarry? 93 It is expedient to commence this discussion by noting what process of reasoning is exposed in his Honour's remarks on pronouncement and sentence: "This Court is concerned with an exceptional individual and it is not called upon to defend or to attack theories of general criminology or penology nor to debate their validity then or now. For its part the parliament, far from repealing the legislation, has acted to ensure that it has kept current by amending it as recently as 1999 to ensure that the language of the Act is consistent with that used in related legislation. It is accepted that a pronouncement such as that sought is extraordinarily rare. That is as it should be. That does not answer the question, is this a case in which such a declaration should be made? …………………………………………………………………………. There are, it is noted, two bases upon which the pronouncement can be made. The Court is to be satisfied either that imposing an additional but concurrent sentence is necessary for the prisoner's reformation or for the protection of society. Reformation I accept is to be equated with rehabilitation. It is submitted that the Crown has proceeded on the basis there is no or virtually no prospect of Mr. Strong's rehabilitation. Certainly, lengthy sentences in the past have brought about no such reformation. Why then should one expect that a sentence in future will produce any positive response? I am reluctant to classify Mr. Strong 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. This, for the reasons given earlier, is not particularly persuasive and in any event seems to predicate a possibility to be explored over time in the future. As Mr. Nolan observes, as an indicator of reduced potential to external violence it is very small. I think the Crown does not hold out this very tentative prospect as the basis for incarcerating the prisoner in order to bring about his reform. The Crown does indeed seek the order primarily on the basis that this is for the protection of the community and is indeed the only avenue whereby that protection can be effected. That is because the sentences being served by the prisoner or whatever sentences may on appeal be substituted are constrained by principle to not contain any preventive element, (Veen No. 2). This Act is quite outside the well established principles of proper sentencing. It has, as its very foundation, the extraordinary concept of doing that which proper sentencing cannot do, that is, the imprisonment of a person solely because of the risk of recidivism. …………………………………………………………………………. It is suggested, as I understand ……… (counsel's) ……. Submissions, that the prisoner has not been afforded the whole range of therapeutic programmes which might have brought about some change. I am not persuaded this is so. Despite there being some possible ambiguity in the terminology used by Dr. Lucire I am persuaded by a number of references throughout the records that counselling has been offered and that the prisoner has not engaged relevantly in that process. He is adamant that there is no medication to which he will willingly submit. […Counsel…] is critical of some reports suggesting that it is unfair to expect the prisoner to take an anti-psychotic drug when his break outs are only transient. I had thought that the medication suggested was prophylactic but without expert evidence I make no finding in this respect. One might have thought, however, that in the interests of his own rehabilitation and consequent release the prisoner would have been prepared to try almost anything. Similarly […counsel…] rebukes the doctors for recording that the prisoner is unwilling to undergo what she calls chemical castration. These are arguments directed more, it seems to me, to the question of rehabilitation. Accepting that he has not been and appears still not to be willing to engage meaningfully in counselling and that he has not and will not undertake drug therapy, there is no reason, presently, to suppose that his attitudes will change. He has undeniably in the past been a danger to women. Nothing seems to have changed. It seems unlikely that anything will change. He is now and will continue to be a threat to the community, certainly for the foreseeable future. Who would release this man? At the end of his sentences he must be released unless the declaration sought is made. For the protection of society I am convinced that such pronouncement should be made. There is provision once the pronouncement is made for the prisoner to be released on licence. I note there is a convention as to when this will be considered. It remains a matter, however, for the authorities to decide when and if he should be released on licence and that will be dependent upon his condition and whether the danger he represents has passed. My concern is to ensure that for the protection of society sufficient time is allowed for perhaps the small spark identified by Mr. Nolan to take hold or at worst until the danger represented by the prisoner has diminished, simply by the passage of time." 94 It is convenient to consider next some matters arising from a report dated 14 February 2001, and prepared at the request of the applicant's then legal advisers by Mr. Philip Nolan, a psychologist. The assessment, as well as the final conclusions, expressed by Mr. Nolan deal with particular questions that had been put to him for comment. The matters thus raised were: the applicant's potential for violence; the likelihood of his re-offending; and his threats of suicide if imprisoned. 95 The assessment made by Mr. Nolan, after a personal interview with the applicant, is as follows: "The range of personality characteristics identified in the MMP1-2 generally appears consistent with Mr. Strong's behavioural history and the descriptions of him in the 1995 report of Dr. Lucire. The 1995 report does, however, contain references to significant psychotic symptoms, particularly in 1992, where Mr. Strong apparently reported auditory hallucinations of voices telling him to kill people. When questioned about his current state, he reported no such symptoms. Neither did he report any bizarre thoughts or dreams. His speech during my assessment interview was not disorganised and his responsiveness appeared normal. This suggests that although testing revealed characteristics associated with psychotic disorders, he is not currently in a psychotic state. His attempt to reduce the seriousness of his actions in the current offence, and to blame his trouble on his reputation are significant examples of the personality characteristic of blaming others as described above. It perhaps contains an element of delusional thinking, but is more likely an avoidance of personal responsibility. In the assessment interview, Mr. Strong expressed strong anger towards his victim in the current offence saying he wants to kill her. As well as the serious nature of this threat, it also indicates a projection of blame for his current situation resting outside his responsibility. As well as this threat concerning his victim, Mr. Strong made some statements expressing his disenchantment with society in general. This is indicative of his sense of alienation which was identified in testing. It would appear that with these personality characteristics and his current anger towards his victim and society that the prognosis for rehabilitation is poor. From the 1995 report of Dr. Lucire provided to me, it appears Mr. Strong expressed strong violence tendencies, making various statements over time about killing other people. While he has made such a statement about his victim this time, his other major statement has been that he will either escape or commit suicide to avoid a further lengthy period in prison. The MMP1-2 results suggest people with his profile may use suicide threats to manipulate people. I consider that Mr. Strong's current statement is more complex than simply manipulation. He stated to me that he really does not want to die, but that the desperation he would feel in facing continued imprisonment would strengthen his resolve to leave "dead or alive". When I asked Mr. Strong about sources of support in his life he identified his family and his mother in particular. He stated that he receives correspondence and occasional visits, depending on his location. In the community, he has no close personal relationships outside his family. While he identifies them as important to him, their influence on his behaviour does not appear to be strong. He claimed that he only committed offences when under the influence of alcohol or other substances. He claims his mother, who is his main personal support blames his offending on alcohol and drugs. It appears that in the controlled environment of the prison, his behaviour can be kept in check. In the community, the lack of close personal relationships outside his family and the effect of substances to reduce personal control are situational factors acting with his personality characteristics and may explain criminal behaviour in the community and his apparent general compliance in the prison setting. I have no information on the details of Mr. Strong's various offences. It appears to me simply from perusal of his criminal record that his offences of the last decade have been less physically violent than those of the decade before. The stalking charges may represent "early intervention" which has prevented more serious offences occurring, or they may represent a lower propensity to violence in Mr. Strong. If the latter possibility has any truth, there is a slight chance that his offending behaviour could lessen. This view is hypothetical, based on that assumption and the assumption that his current use of a suicide threat is not so much manipulative but represents an inner turning of his anger. Given the urgent nature of the request for my assessment and the limited historical information I have on Mr. Strong, this view is very tentative, but may warrant further evaluation. To address the specific issues listed at the commencement of this report, firstly one cannot ignore the level of anger he has expressed towards the victim and the threat he has made concerning her. It reflects similar behaviour reflected in Dr. Lucire's 1995 report. I have hypothesised that Mr. Strong's threat to escape or commit suicide may represent an inner directing of his anger rather than a manipulative strategy. I put forward that hypotheses only as something to explore over time in the future. As an indicator of reduced potential to external violence, it is very small. The anger Mr. Strong has expressed at society and his feelings of alienation do not suggest his offending career is likely to end. He is now forty-one years old, and demographically, offending behaviour might become less common in middle age. There is the possibility of attitude change occurring, but unfortunately, none was apparent through my brief assessment time. I presume it is most likely that Mr. Strong will receive a prison sentence. The one significant issue with him on this occasion is his reluctance to accept further imprisonment. At present it is accompanied by his rejecting responsibility for his offending. If this attitude changed, his wish to avoid prison might offer motivation to avoid further offending. Mr. Strong has made a significant threat to commit suicide if he is imprisoned. He has stated that he would attempt to escape before attempting suicide. I believe his statement is more than simple use of the suicide for manipulation. I believe he does have a strong reluctance about spending further time in prison , and in desperation or depression may act on his statement. The statement should be taken seriously. 96 Mr. Nolan's conclusions are: "Conclusion Despite my limited background and knowledge of Mr. Strong, the impressions I have gained in this assessment suggest there has not been much change in his behaviour or attitudes in the past five years. He appears to be a very angry person, externalising much blame. He does accept blame for his behaviour insofar as he sees his substance abuse as causing his criminal behaviour. He has applied for a methadone programme which is one positive step. Mr. Strong does not appear to be exhibiting signs of a psychotic disorder at present. His personality characteristics include alienation, anti-social attitudes and interpersonal suspiciousness. An hypothesis has been put forward that there is a slight indication that Mr. Strong has turned some external blame into anger with himself and hence thoughts of suicide. Time will tell whether there is such a shift in recognising and accepting personal responsibility. If indicators of that become stronger, then the possibility of Mr. Strong being able to live in the community without further offending would become more realistic." 97 The whole of the foregoing material does not seem to me to support any of the grounds 5, 6 and 7. Grounds 8 and 9 are, in my opinion, the grounds upon which any appeal against the Habitual Criminals Act pronouncement and sentence either stands or falls. 98 As to those grounds, the correct starting point is the proposition that his Honour, in pronouncing and sentencing pursuant to the Habitual Criminals Act, was exercising discretionary powers. The contrary was not contended at the hearing before this Court. 99 That being so, it is trite that this Court will not interfere with the primary Judge's exercise of those discretions unless it is plain that they have miscarried; the relevant guiding principles being set out by the High Court of Australia in House v The King (1936) 55 CLR 499, per Dixon, Evatt and McTiernan JJ at 504, 505. 100 I do not believe that there is any ambiguity in the learned primary Judge's reasoning. His Honour was convinced, plainly, that the applicant presented as a very dangerous man, whose antecedents suggested that he was a recidivist with, at best, very slender prospects of future rehabilitation; and, as such, a present and likely future threat to women. His Honour deduced, correctly as I respectfully think, that the Act having been invoked, the statutory pre-conditions had been established; and there was, thereupon, every good reason from the viewpoint of the protection of the public, to pronounce and sentence accordingly. 101 I am wholly unpersuaded that his Honour's discretion to pronounce, miscarried. The more difficult question is whether the sentence which his Honour thereupon imposed was, to borrow from House "……….. upon the facts ……… unreasonable or plainly unjust" so as to justify appellate intervention "…….. on the ground that a substantial wrong has in fact occurred". 102 I am reluctant to differ from as experienced a trial Judge in criminal cases as his Honour. I have to say, however, that I cannot see how, allowing for every proper apprehension about this applicant, it was a sound exercise of the relevant sentencing discretion to impose the statutory maximum penalty in a range as broad as that of 5 to 14 years. I think that there has been an ultimate miscarriage, and that this Court must do what it properly can do by way of correction. 103 The effect of what I would favour by way of re-sentencing on the substantive matters means that the applicant will serve 5 years in custody; and, if not granted parole, 7 years in custody. He cannot be released, therefore, before October 2005; and possibly October 2007. A concurrent sentence, passed pursuant to the Habitual Criminals Act, of 8 years, would extend until October 2008, the period of the appellant's detention. A sentence of that order, with such consequences, is in my opinion justly proportioned to the circumstances of the applicant's case. The applicant's condition is, by any reasonable reckoning, a difficult and troubling one. It requires careful and sensitive on-going monitoring and treatment. The applicant, however he might be released back into the general community, will need some very careful onging supervision. The effect of the sentence passed pursuant to the Habitual Criminals Act will give the relevant authorities some added flexibility in assessing whether, and when, and upon what basis, the applicant is to be returned into the general community. It might very well be that, in due course, it will be obvious that the only fair way of dealing with the applicant is by taking steps, if it is possible to do so, to have him dealt with as some kind of forensic patient pursuant to the relevant mental health legislation. No doubt matters of that character cannot be rushed; but, if there is to be purely preventive detention at all of the applicant, then it must be a matter of course that the period of such purely preventive detention is to be the minimum which the evidence suggests will be sufficient to enable the Corrective Services authorities, and the Prison Medical authorities to deal in a properly humane fashion with this applicant. 104 I would favour, therefore, the following orders:
[1] That the application for leave to appeal against the Habitual Criminals Act pronouncement be granted.
[2] That the appeal against such pronouncement be dismissed.
[3] That the application for leave to appeal against the sentence passed pursuant to that pronouncement be granted.
[4] That the appeal against such sentence be allowed; that the sentence be quashed and that the applicant be re-sentenced to imprisonment for 8 years to commence on 4 October 2000 and to expire on 3 October 2008
(1) that leave to appeal against both sentences be granted;
(2) that both sentences passed in the District Court be quashed; (3) that the applicant be re-sentenced as follows:
3.1 On Count 1 of the indictment, to imprisonment for a period of 3 years to commence on 4 October 2000 and to expire on 3 October 2003; no non-parole period being specified because of the partial cumulation of the sentences on Counts 1 and 2 of the indictment; 3.2 On Count 2 of the indictment, to imprisonment for a period of 4-1/2 years to commence on 4 April 2003 and to expire on 3 October 2007, with a non-parole period of 2-1/2 years to commence on 4 April 2003 and to expire on 3 October 2005. (4) that the Registrar of the Court forward urgently to the Commissioner of Corrective Services a copy of the medical reports referred to in paragraph 65 of this judgment, together with the recommendation that same be attached permanently to the applicant's departmental files.
(1) that the application for leave to appeal against the Habitual Criminals Act pronouncement be granted.
(2) that the appeal against such pronouncement be dismissed.
(3) that the application for leave to appeal against the sentence passed pursuant to that pronouncement be granted.
(4) that the appeal against such sentence be allowed; that the sentence be quashed and that the applicant be re-sentenced to imprisonment for 8 years to commence on 4 October 2000 and to expire on 3 October 2008. 106 DUNFORD J: I agree with Sully J. 107 BUDDIN J: I have had the advantage of reading in draft form the judgment of Sully J.
The challenge to the sentences for the substantive offences 108 So far as the application for leave to appeal in respect of the sentences imposed for the offences of intimidation and stalking is concerned, I am grateful to Sully J for His Honour's detailed analysis of the relevant material and the issues to which it gives rise. I am in substantial agreement with what His Honour has said in that respect. I simply note however that it is somewhat surprising that apparently no material of any kind whatsoever was adduced on the applicant's behalf before the sentencing judge. 109 I agree with his Honour that the applicant has established error in respect of Ground 3, namely that no discount was allowed for the plea of guilty concerning the stalking offence. That being so, it becomes necessary, as his Honour concluded, for this Court to intervene. I will return in due course to consider what consequence flows from that conclusion.
The pronouncement and sentence in relation to the Habitual Criminals Act 1957 (NSW) 110 In its Report No 75 on Sentencing, the New South Wales Law Reform Commission in 1996 recommended the repeal of various Acts, including the Habitual Criminals Act 1957 (NSW) (the 'Act'). It identified the following reasons for the repeal of the Act and certain other legislation: · They may take a sentence beyond that which is proportional to the criminality of the offence for which the offender is being sentenced. We particularly note, with respect to the Inebriates Act 1912 (NSW), that in cases where the principle of proportionality is not offended, the options available to the court would most likely be available to a sentencing court in any case. · In so far as these pieces of legislation seek to have an effect on an established pattern of behaviour, the Commission considers that such matters should be more appropriately dealt with in ways other than by extending a particular term of imprisonment. This is perhaps most obvious with respect to the Inebriates Act 1912(NSW), where proper medical treatment outside the criminal justice system would be more appropriate. · More generally, the beliefs which underpin the Acts in question are no longer appropriate or are provided for in other ways. For example, the Habitual Criminals Act 1957 (NSW) was passed in the belief that there was a class of habitual criminals who possessed "criminal qualities inherent or latent in [their] mental constitution". · The procedures under the Acts are archaic and do not correspond with current practice. For example, the Inebriates Act 1912 (NSW), and the Habitual Criminals Act 1957(NSW) both allow for a system of "release on licence" for persons declared under their provisions. · There has, in recent years, been little use of the provisions under the Habitual Criminals Act 1957 (NSW), the Crimes Act 1900 (NSW), and the Inebriates Act 1912 (NSW). The last reported case to deal with a sentence under the Habitual Criminals Act 1957 (NSW) was in 1973 when it was noted that the courts in New South Wales had been unwilling to make pronouncements under the Act. (at 233-4) 111 In its Discussion Paper No 33 which preceded the Final Report, the Commission noted that: Many submissions to the Attorney General's Sentencing Review favoured the abolition of the Habitual Criminals Act. Notably, the Office of the Director of Public Prosecutions was in favour of the repeal of extended sentence provisions. Given the fact that such provisions have fallen into disuse, the DPP's view is very significant. The discretion vested in the DPP is relevant to the decision to prosecute, and the provisions under which the alleged offender will be charged. The DPP's view of the value of such provisions is likely to influence the choice of legislation under which offences are prosecuted. (p 136-137) 112 Notwithstanding the recommendation of the Commission and the misgivings which have been otherwise expressed about the continued existence of the Act, it still remains validly enacted legislation of the Parliament of this State. It is against that background that the present application must be considered. 113 The provisions of the Act which are of present relevance are in the following terms: 4 . Judge may pronounce convicted person an habitual criminal (1) When any person of or above the age of twenty-five years is convicted on indictment and has on at least two occasions previously served separate terms of imprisonment as a consequence of convictions of indictable offences, not being indictable offences that were dealt with summarily without his consent, then if the judge before whom such person is so convicted is satisfied that it is expedient with a view to such person's reformation or the prevention of crime that such person should be detained in prison for a substantial time, the judge may, in addition to passing sentence upon such person for the offence of which the person is so convicted, pronounce the person to be an habitual criminal and shall thereupon pass a further sentence upon the person in accordance with the provisions of section 6. (2) When any person of or above the age of twenty-five years is convicted summarily before a Magistrate of an indictable offence punishable summarily only with the consent of such person, and has on at least two occasions previously served separate terms of imprisonment as a consequence of convictions of indictable offences, not being indictable offences that were dealt with summarily without his or her consent, the Magistrate may, in addition to passing sentence upon the person for the offence of which the person is then convicted, direct that an application be made by a registrar of the District Court to a judge to have such person pronounced to be an habitual criminal. If the judge to whom such application is made is satisfied that it is expedient with a view to such person's reformation or the prevention of crime that such person should be detained in prison for a substantial time, the judge may pronounce the person to be an habitual criminal and shall thereupon pass sentence upon the person in accordance with the provisions of section 6.
(3) This section shall apply: (a) whether any such previous conviction or imprisonment took place within or without New South Wales and either before or after the commencement of this Act, (b) whether any such previous imprisonment was served as a consequence of a conviction for an indictable offence committed before or after any previous pronouncement as an habitual criminal, made under this Act, of the person to whom the conviction relates, or any previous declaration as an habitual criminal, made under the Habitual Criminals Act 1905--1952 , of such person. (4) (a) Any term of imprisonment served by any person as a consequence of conviction of an indictable offence which term was served cumulatively upon any other term of imprisonment served by such person as a consequence of conviction of such an offence shall not, for the purposes of this section, be counted as a separate term of imprisonment previously served by such person as a consequence of conviction of such an offence. (b) Where any term of imprisonment served by any person as a consequence of conviction of an indictable offence was served concurrently or partly concurrently with any other term of imprisonment served by such person as a consequence of conviction of such an offence, such terms of imprisonment shall, for the purposes of this section, be counted as one separate term of imprisonment previously served by such person as a consequence of conviction of such an offence. 5. Proof of previous conviction and imprisonment (1) For the purposes of this Act, a previous conviction against any person, whether such conviction took place within or without New South Wales, may be proved by producing a record or extract of such conviction, and by giving proof of the identity of such person with the person appearing in the record or extract of conviction to have been convicted. A record or extract of a conviction shall consist of: (a) an extract from the indictment or the counts of the indictment on which the said person was convicted, (b) a statement of the verdict, (c) a statement of the sentence, certified under the hand of the clerk of the court or other officer purporting to have the custody of the records of the court by which such conviction was made. (2) For the purposes of this Act, previous imprisonment: (a) served within New South Wales by any person may be proved by: (i) producing a certificate under the hand of the Commissioner of Corrective Services specifying the term of such imprisonment and the convictions in respect whereof such person was imprisoned, and (ii) giving proof of the identity of such person with the person appearing in the certificate to have been imprisoned, (b) served without New South Wales by any person may be proved by: (i) producing a certificate under the hand of the Commissioner of Corrective Services or other officer in charge of penal institutions in the state or country within which the imprisonment was served, specifying the term of such imprisonment and the convictions in respect whereof such person was imprisoned, and (ii) giving proof of the identity of such person with the person appearing in the certificate to have been imprisoned. (3) The record, extract or certificate referred to in this section shall be admissible in evidence without proof of the signature or official character of the person appearing to have signed the same. (4) The mode of proving a previous conviction or previous imprisonment authorised by this section shall be in addition to and not in exclusion of any other authorised mode of proving any such conviction or imprisonment. 6. Sentence to be imposed on persons pronounced to be habitual criminals (1) The judge who, pursuant to the provisions of section 4, has pronounced a person to be an habitual criminal, shall pass a sentence of imprisonment upon such person for a term of not less than five years nor more than fourteen years. (2) Any sentence of imprisonment being served by any such person at the time the person is pronounced to be an habitual criminal shall be served concurrently with the sentence imposed pursuant to the provisions of subsection (1). 7. Governor may direct habitual criminal's release (1) If the Governor determines that an habitual criminal undergoing imprisonment or detention at the commencement of this Act, or detained in prison pursuant to a direction of a judge, justice or justices given under the provisions of section 8 of the Habitual Criminals Act 1905--1952 is sufficiently reformed, or for other good cause, the Governor may grant to the habitual criminal a written licence to be at large, for such period endorsed on the licence and subject to such conditions so endorsed as the Governor shall prescribe: Provided that where an habitual criminal is at such commencement serving a definite term of imprisonment, a written licence to be at large shall not be granted to the habitual criminal under this subsection until that term has expired or been otherwise vacated. (2) (a) The Governor may: (i) if the Governor is satisfied that the conduct and attitude of an habitual criminal during the period of such habitual criminal's imprisonment pursuant to a sentence imposed under the provisions of section 6 or 8 warrant such habitual criminal's release on licence under the provisions of this subsection, grant to such habitual criminal, at any time after the expiration of two-thirds of such sentence, a written licence to be at large, (ii) if for any other good cause the Governor determines that an habitual criminal sentenced under the provisions of section 6 or 8 should be released on licence under the provisions of this subsection, grant to such habitual criminal a written licence to be at large. (b) Where in the exercise of the royal prerogative of mercy the Governor proposes to remit any sentence imposed on an habitual criminal under the provisions of section 6 or 8 the Governor may in lieu of remitting such sentence grant to such habitual criminal a written licence to be at large. (c) Any written licence granted under this subsection shall be for such period endorsed on the licence and subject to such conditions so endorsed as the Governor may prescribe: Provided that such period shall not extend beyond the time when the term of imprisonment imposed on such habitual criminal under the said section 6 or 8 would, if the habitual criminal were not released on licence under the provisions of paragraph (a) or (b), expire by effluxion of time. (3) Nothing in this section shall limit or in any way affect the powers vested in the Governor in the exercise of the royal prerogative of mercy. … 9. Judge to consider report of Adult Probation Service Before sentencing any person under the provisions of this Act, a judge shall consider any report in respect of such person that may be obtained by such judge from the Adult Probation Service. 114 Although a jurisdictional challenge was mounted before the primary judge, that point has not been pressed before this Court. A number of other matters which go to the question of jurisdiction, have however been raised. Conversely none of those points were taken before the primary judge. I agree with Sully J that the various grounds which propound that the formal pre-requisites required by s 4 of the Act had not been complied with, must fail. I would add only this. Although the certificate obtained from the Commissioner of Corrective Services was not formally marked as a separate exhibit, I would be inclined to infer that it nevertheless found its way into evidence as part of other material which was marked as an exhibit. If I am wrong about that, then I am content to rely upon Sully J's analysis of the matter. 115 The applicant also submitted that the discretion vested in the primary judge pursuant to s 4 of the Act to make the pronouncement that the applicant was an habitual criminal, miscarried. Before making the pronouncement the primary judge had to be satisfied, pursuant to s 4(1) of the Act, that "it [was] expedient with a view to such person's reformation or the prevention of crime that such person should be detained in prison for a substantial time". It will be seen at once that the purposes of reformation of the individual offender and the prevention of crime are expressed to be in the alternative although it is not difficult to envisage that there may be a link between the two concepts. As the primary judge observed, the Crown sought the order "primarily on the basis that this is for the protection of the community and is indeed the only avenue whereby that protection can be effected". The Crown did not entertain any realistic prospect that further incarceration would facilitate the applicant's reformation. 116 It is clear that the primary judge made the pronouncement for the purpose of protecting the community. It can be safely assumed that his Honour concluded that the community should be protected by the further incarceration of the applicant and that this was the only means, for the foreseeable future, whereby the "prevention of crime" by the applicant could be guaranteed. In other words, the primary judge concluded that the applicant represented a real threat to the community in the future. That, in turn, depended upon an assessment of the likelihood of recidivist behaviour on the part of the applicant. 117 The difficulties of making such a prediction are well recognised. As Stephen J said in Veen v The Queen (1978) 143 CLR 458: No doubt the whole question of prediction of behaviour in the future is a most difficult one. Its very difficulty is in itself a potent reason against undue weight in sentencing being given to the protection of the community from what is predicted as the likely future violence of the convicted person. Predictions as to future violence, even when based upon extensive clinical investigation by teams of experienced psychiatrists, have recently been condemned as prone to very significant degrees of error when matched against actuality. (at 464) 118 Upon this question, the primary judge observed that: [h]e has undeniably in the past been a danger to women. Nothing seems to have changed. It seems unlikely that anything will change. He is now and will continue to be a threat to the community, certainly for the foreseeable future. Who would release this man? At the end of his sentences he must be released unless the declaration sought is made. For the protection of society I am convinced that such pronouncement should be made. There is provision once the pronouncement is made for the prisoner to be released on licence… My concern is to ensure that for the protection of society sufficient time is allowed for perhaps the small spark identified by Mr Nolan to take hold or at worst until the danger represented by the prisoner has diminished, simply by the passage of time.
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:
The stated preconditions to the exercise of the power appearing in s 98(1) are such that, on the face of things, a very large number of sentences would qualify as conferring on the sentencing judge the additional power to order that the offender be imprisoned indefinitely. Unless this very large power were confined in its operation, it would completely revolutionise the sentencing of offenders in Western Australia. In effect, it would render a very large number of offenders, sentenced for indictable offences, susceptible to a sentence of indefinite imprisonment. This would effectively restore the system of punishment of a general, indefinite imprisonment order subject to the exercise of discretions of officers in the Executive Government. … The general tendency of Australian sentencing legislation in recent years, including as reflected in the Sentencing Act, has been to emphasise certainty in, and clarity of, the sentences imposed by the courts. The terms of s 98 ought not to be read as converting the sentencing of all (or even most) offenders convicted of indictable offences in Western Australia to additional terms of indefinite imprisonment subject to the kinds of non-judicial supervision described. On the contrary, both in its language and context, s 98(1) is to be read as a source of a discretionary power. Precisely because it is expressed in such broad terms, and because it is so exceptional to the fundamental principles of sentencing observed in Australia, the terms in which the power is granted demand that it be exercised only in a wholly exceptional case where such exercise is necessary to achieve the purposes of criminal punishment and where the ordinary principles of criminal punishment would not suffice for that purpose. (at 145) 139 The matters which his Honour addresses are, in my view, equally relevant to the way in which the discretion pursuant to s 4 of the Habitual Criminals Act is to be exercised. The exercise of that discretion potentially had, as I have said, very significant consequences for the applicant. The primary judge was thus called upon to make not only a very important decision but also a very difficult one. Consistently with the principles enunciated in McGarry it was accordingly essential that the primary judge be provided with "all available and relevant material" which bore upon the decision which was to be made. Moreover it was necessary, given the task which confronted the primary judge, that the material which was provided was also up to date. 140 In the circumstances, I have come to the conclusion that the proceedings before the primary judge which were brought pursuant to the Habitual Criminals Act miscarried by reason of the fact that his Honour had before him quite inadequate material upon which to exercise the discretion which was reposed in him. Accordingly, it is my view that the appropriate course is to quash the pronouncement and the sentence which was imposed in consequence of it. The question then arises as to what course should then be followed. It is now almost two years since the pronouncement was made. It is highly desirable that the proceedings be brought to finality as soon as is reasonably possible. This Court has available to it material relating to the applicant's psychiatric condition. However given the way in which the matter unfolded in this Court, the Crown points out, with some justification, that it has not had the opportunity to test that evidence. The Crown indicated that it may wish to call additional evidence itself. These are not unimportant considerations. 141 It is also of significance that this Court does not have available to it a pre-sentence report. In those circumstances, it is my view that this Court is not properly placed to consider the application brought by the Crown for a pronouncement that the present applicant is an habitual criminal. That being so, I favour the submission made by the Crown that in the prevailing circumstances, the matter should be remitted pursuant to s 12(2) of the Criminal Appeal Act, to the District Court. 142 This Court has on appropriate occasions remitted matters to a "court of trial" in situations in which it has not been put in possession of all the necessary material to enable it to embark upon the task of resentencing. For recent examples see R v McLean (2001) 121 A Crim R 484; R v Leete (2001) 125 A Crim R 37; R v Pamplin [2001] NSWCCA 327. 143 As a matter of general principle it appears to me that the proceedings in relation to the substantive offences and the application for a pronouncement should be heard and decided together. That is because the considerations bearing upon the various questions in issue are likely to be inextricably linked and the ultimate decisions to be made may well have an impact upon one another. That is, in part, a product of the fact that any pronouncement sentence must run concurrently with the primary sentences. For that reason, I favour an order remitting the entire matter to the District Court for further consideration by it. 144 There is a further advantage in remitting the matter to the District Court. Such an order will have the effect of preserving any future entitlement which the applicant may have to review any decision which is made in the District Court following the remitter. See Histollo Pty Ltd v Director-General National Parks and Wildlife Service (1998) 45 NSWLR 661. 145 I return then briefly to the question of resentencing so far as the substantive offences are concerned.
146 With respect, Sully J has identified the matters which are to be weighed in the balance upon the resentencing exercise. It will of course be a matter for the judge who ultimately hears the matters to determine what weight should be given to the various factors that are relevant to that exercise. 147 Nevertheless that having been said, there is no doubt that the offences, including the Form 1 matters to which the applicant pleaded guilty, require the imposition of salutary penalties. Not only were the offences themselves of demonstrably objective gravity, but the applicant's antecedent history brought into play, as Sully J has pointed out, the considerations referred to by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465. Given the nature and extent of his criminal record, this was a matter that should assume considerable prominence in any resentencing exercise. Nevertheless, it is necessary to give appropriate weight to the applicant's pleas of guilty by reason of the fact that they indicated a willingness on his part to facilitate the course of justice. See R v Cameron (2002) 187 ALR 65, R v Thomson and Houlton (2000) 49 NSWLR 383 and R v Sharma (2002) 54 NSWLR 300. Furthermore, as Sully J has remarked, the pleas of guilty spared the complainant the ordeal of having to give evidence in either of the matters in respect of which she was a prospective witness. These are not insignificant matters. In my view they impact upon the appropriateness of the sentence passed in respect of the intimidation offence as well. 148 Weighty consideration also needs to be given to the material which was not before the primary judge. It includes the progress which the applicant has made whilst in custody. It is a relevant consideration that he is presently, and may well continue, to serve his sentence in strict protection. If that proves to be the case then the applicant's time in custody will be more burdensome than would otherwise be the case. The psychiatric evidence, which is now available, also needs to be brought into account. See R v Engert (1995) A Crim R 67. 149 Accordingly I propose the following orders:
That leave to appeal against the sentences for the offences of stalking and intimidation be granted and the appeals allowed.
That the sentences passed in consequence thereof be quashed.
That leave to appeal against the Habitual Criminals Act pronouncement be granted and the appeal allowed.
That the pronouncement and sentence passed in consequence thereof be quashed.
That all matters be remitted to the District Court for further determination by that Court. **********
Last Modified: 05/14/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Regina
Robert John Strong
CITATION : Regina v Robert John Strong [2003] NSWCCA 123 HEARING DATE(S) : 5 December 2002; 14 March 2003 JUDGMENT DATE : 8 May 2003
Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) LEGISLATION CITED : Summary Offences Act 1988 (NSW) Habitual Criminals Act 1957 (NSW) Criminal Appeal Act 1912 (NSW) Inebriates Act 1912 (NSW) Veen No. 2 v The Queen (1988) 164 CLR 465 Pearce v The Queen (1998) 194 CLR 610 Reg v Perese [2001] NSWCCA 478 Wilkins v Reg (1988) A Crim R 445 Reg v Spiero (1979) 22 SASR 543 Reg v Simpson (2001) 53 NSWLR 704 Reg v Engert (1995) 84 A Crim R 67 Reg v Thomson and Houlton (2000) 49 NSWLR 383 Watson v The Superintendent, Metropolitan Reception Centre (1971) 1 NSWLR 67 R v Malcolm (1908) 8 SR (NSW) 6 CASES CITED : Ex Parte Bowen (1917) 34 WN (NSW) 41 House v The King (1936) 55 CLR 499 R v Riley (1973) 2 NSWLR 107 R v Fahey [1954] VLR 460 McGarry v The Queen (2001) 207 CLR 121 R v Griffen (1969) 90 WN (Pt 1) (NSW) 548 R v McLean (2001) 121 A Crim R 484 R v Leete (2001) 125 A Crim R 37 R v Pamplin [2001] NSWCCA 327 Histollo Pty Ltd v Director-General National Parks and Wildlife Service (1998) 45 NSWLR 661 R v Cameron (2002) 187 ALR 65 R v Sharma (2002) 54 NSWLR 300 PARTIES : Regina Robert John Strong FILE NUMBER(S) : CCA 60145/01; 60475/01 COUNSEL : P. E. Barrett - Crown D. A. Buchanan SC/G. A. Bashir - Appellant SOLICITORS : S. E. O'Connor - Crown D. J. Humphreys - Appellant
(1988) 164 CLR 465
(1998) 194 CLR 610
(1979) 22 SASR 543
(2001) 53 NSWLR 704
(2000) 49 NSWLR 383
(1971) 1 NSWLR 67
(1936) 55 CLR 499
(1973) 2 NSWLR 107
(2001) 207 CLR 121
(1998) 45 NSWLR 661
(2002) 187 ALR 65
(2002) 54 NSWLR 300
(1988) 164 CLR 456
(1978) 143 CLR 458
Leave to appeal against the substantive sentences was granted, the sentences were quashed, and Strong was resentenced to three years for intimidation and four and a half years for stalking, partly accumulated. Leave to appeal against the habitual-criminal pronouncement was granted, but the appeal against the pronouncement was dismissed. Leave to appeal against the 14-year sentence under the Act was granted, the sentence was quashed, and an eight-year sentence from 4 October 2000 to 3 October 2008 was substituted. The Registrar was also directed to send the identified medical reports to the Commissioner of Corrective Services with a recommendation that they be kept on Strong's departmental file ([105]).