REGINA v S L D [2003] NSWCCA 310 | Case summary

31 October 2003 REGINA v S L D Judgment 1 HANDLEY JA: S L D, a boy aged thirteen years and ten months at the time of the offence, pleaded guilty to the murder during the night of 29 January 2001 of a three year old girl who lived nearby. On 30 August 2002, after an extended hearing, he was sentenced by Wood CJ at CL to imprisonment for twenty years to commence from 29 January 2001 with a non-parole period of ten years. He has applied for leave to appeal from his sentence on the ground that the sentencing Judge erred in assessing the risk that he would pose to the community in future and on the ground that the sentence was manifestly excessive. 2 The 29th January 2001 was a hot night and the victim's parents left the main doors of their house open with the screen doors locked. The applicant obtained entry to the victim's home by cutting the gauze and went into her bedroom. He removed her nappy without waking her and then carried her outside for a distance of some 300 metres. He then placed her on a concrete driveway and stabbed her in the chest with a knife with fatal results. 3 The sentencing Judge was satisfied that the applicant intended to kill the girl but he was unable to determine, on the criminal onus, whether the offence was premeditated or impulsive. He said that "in many ways a motiveless and inexplicable murder of the kind here seen is as serious as one which was preplanned and motivated" (para 17). 4 The Judge held that the applicant had to be sentenced in accordance with s 6 of the Children (Criminal Proceedings) Act 1987 and that he must apply decisions of this Court which placed significant weight on rehabilitation. He said that nevertheless, where the offence was one of gross criminality, as in the present case, punishment and personal deterrence also had to be taken into account. He also had to take into account what the future held for the applicant and the community when he was released. 5 His Honour carefully reviewed the relevant evidence and made findings as to the applicant's subjective circumstances. Until his adoption in 1993 these were horrific. His mother who had a history of substance abuse physically and emotionally abused her children. Intelligence testing placed him in the borderline disabled range (para 37) or at the low average range of intellectual functioning at the 18th percentile (para 47). 6 His Honour reviewed the medical and other expert evidence. It was not suggested that the applicant suffered from any form of mental illness. Mr Champion, a clinical psychologist, thought that the applicant's prognosis in terms of his future mental state and involvement in criminal offending was very poor (para 46). Dr Waters, a psychiatrist, thought that the likelihood of the applicant now changing into a reasonably socialised adult was "reasonably low" (para 61). He said that there were difficulties in coming to any definite diagnosis as to the presence of a personality disorder before the applicant was eighteen although his history meant that the chances of him developing an anti-social or substance abuse disorder or a borderline personality disorder were in excess of 50% and could be of the order of 70%. The fact that he had killed once made it even more likely that such a disorder would develop (para 63). 7 Dr Westmore, the other psychiatrist who gave evidence, accepted that while the prognosis was poor at the present time a positive outcome could not be excluded. He agreed with Dr Waters that it was possible that the applicant could comply with the ordered structures of the correctional system but resume dangerous behaviour once released and those most likely to be at risk would be the more vulnerable persons in society. 8 The Judge made the following ultimate findings: "126. In my view, his history is such that, consistently with the expert opinions placed before the Court, he must be judged as posing a significant level of future dangerousness and to be at a substantial risk of reoffending in both violent and sexual ways. There are also very strong indications … that he will develop a significant antisocial or borderline personality disorder, of some magnitude. 127. Whether that can be addressed in the course of the Robinson Program [at the Reiby Detention Centre], and precisely how S L D would behave once free of the structured and controlled environment of the custodial system, are problematic in the extreme …" 9 The Judge noted that under the legislative framework his only option was to fix a head sentence and if that was other than imprisonment for life, to specify a non-parole period. He said: "138. As the law presently stands, I must impose a sentence in the light of what is presently known, notwithstanding the circumstance that the none of the psychiatrists or psychologists who have examined S L D and who have given evidence, can be certain what the future holds, or what truly motivated him … 139. The only alternative, as I see it, is to impose a significant head sentence which would reflect my assessment that the present offence fell into the upper range of objective seriousness, and that S L D poses a significant risk of recidivism and of being a serious risk to the community in terms of potentially killing again or committing sexual offences." 10 In the light of those findings he passed the sentence which the applicant seeks to challenge. 11 The applicant's submissions, prepared in written form by Mr Zahra SC and presented orally by Mr Craigie SC were in summary that: · The finding by the sentencing Judge that the applicant "posed a significant level of future dangerousness and to be a substantial risk of re-offending in both violent and sexual ways" (para 126) could not be supported to the criminal standard. · The sentencing judge erred in concluding that the absence of motive was in the circumstances of the present case proof of and an indicator of future dangerousness. It is submitted that this conclusion could not be reached to the criminal standard. · The length and structure of the sentence is indicative of a significant component of preventive detention. · Because of the difficulties in the assessment of future dangerousness to the requisite standard, the resolution of the tension between the need to protect the community and rehabilitation should be weighted towards the rehabilitation of the prisoner. In this regard the applicant's youth and subjective features are significant factors. · In all of the circumstances the sentence imposed is manifestly excessive. 12 The written and oral submissions for the applicant reviewed the expert evidence and noted that the expressions used by the experts in their assessments of the applicant could not support findings as to his future behaviour and the risk he posed to society to the criminal standard. The concluding submission based on this analysis was: "It is submitted that the caveats expressed by the expert witnesses upon the making of a firm diagnosis are such that a conclusion that the applicant 'posed a substantial risk of re-offending in both violent and sexual ways' could not be supported to the requisite standard." 13 It was submitted, for this reason, that when setting the head sentence the sentencing Judge's reliance on his finding that the applicant posed a significant risk of violent behaviour in the future had resulted in a sentence which was manifestly excessive. It was also said to be manifestly excessive in any event. 14 Senior counsel for the applicant focussed his challenge on the head sentence and did not suggest that the non-parole period of ten years was itself excessive (T 15). 15 There is no need for me to further rehearse the Judge's careful findings of primary fact or his summary of the expert evidence which included extensive passages from the more significant witnesses. 16 Senior counsel for the applicant did not suggest that His Honour's findings as to past and existing facts, where they were adverse to the applicant, were not made to the criminal standard, and could not be supported. His challenges were confined to the Judge's findings as to the future, especially for the period during and after the second half of the head sentence. 17 The submission that findings by a sentencing judge as to the future that are adverse to the prisoner can only properly be made to the criminal standard took as its starting point the decision in The Queen v Olbrich (1999) 199 CLR 270, 280-1, based as it was on the general onus in our criminal law. However that decision was, in terms, limited to "facts", and future probabilities or possibilities are not "facts" in any meaningful sense. See also Weininger v The Queen (2003) 77 ALJR 872. 18 The principles which apply in such circumstances in civil cases were settled by Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. Brennan and Dawson JJ in their joint judgment said at 639-40: "Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past … To make a finding on the balance of probabilities as though the [future] prospect were something that had occurred in the past was to misconceive the process of evaluation." 19 The joint judgment of Deane, Gaudron and McHugh JJ at 643 was to the same effect. They said: "The future may be predicted and the hypothetical may be conjectured. But questions as to the future … are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future … events … it can only do so in terms of the degree of probability of those events occurring. The probability may be very high … or very low … But unless the chance is so low as to be regarded as speculative … or so high as to be practically certain … the court will take that chance into account … Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event … might occur, and adjusts its award of damages to reflect the degree of probability." 20 Similar principles have been applied in criminal cases. It has been recognised that it will seldom be possible to make predictions as to the future beyond reasonable doubt. However the sentencing process cannot ignore possible criminal behaviour by the prisoner in the future and the consequent risk to society. 21 The relevant decisions of the High Court commence with Veen v The Queen [No 1] (1979) 143 CLR 458 where the appellant had been sentenced to life imprisonment for manslaughter following a verdict based on diminished responsibility. This case, like the others that followed, turned on the risk the appellant posed to society on his release from prison. Stephen J, who was part of the majority who allowed the appeal and substituted a sentence of twelve years, said at 464: "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." 22 Jacobs J, who was also part of the majority, said at 489: "… the court itself must be satisfied that the prisoner has a mental disorder which will lead him to kill or seriously injure in the future before proceeding to sentence on that basis. It should be added that in the great majority of cases where mental disorder has been treated … as a reinforcement of the need for the longest permissible sentence, the psychiatric evidence … was overwhelming and most frequently unanimous that there was a present abnormal mental condition of a severe kind." (emphasis supplied) 23 Mason J, who wrote the principal judgment for the minority, said at 468: "The court must, in sentencing a person who has been convicted of a very serious offence involving violence, if his record and the expert evidence plainly demonstrate that there is a real likelihood of his committing that kind of offence again if he is restored to liberty, ensure by the order which it makes that he will not be released whilst that likelihood continues." (emphasis supplied) 24 Following his release Veen killed again in similar circumstances, was again convicted of manslaughter, and was again sentenced to penal servitude for life. He again appealed to the High Court which this time dismissed his appeal: Veen v The Queen [No 2] (1988) 164 CLR 465. The majority (Mason CJ, Brennan, Dawson and Toohey JJ) referred to the need in sentencing to have regard to the protection of society although an increased sentence "merely" by way of preventive detention was not permissible (473, 474). They said (477) that the sentencing judge "was entitled to attach great weight to the protection of society as a factor" and added (478) that "the appellant's mental abnormality makes him a grave danger to society if he goes at large". 25 In Chester v The Queen (1988) 165 CLR 611, which arose under special legislation in Western Australia, Mason CJ, Brennan, Deane, Toohey and Gaudron JJ in their joint judgment at 619 referred to cases where the sentencing judge was satisfied by acceptable evidence that the convicted person is "so likely to commit further crimes of violence (including sexual offences) that he constitutes a constant danger to the community" (emphasis supplied). The legislation did not contain the word "likely". 26 The next significant case was Bugmy v The Queen (1990) 169 CLR 525. The appellant had been convicted of murder and sentenced to life imprisonment but under later legislation he applied for the fixing of a minimum term. This was fixed at eighteen and a half years and he appealed. The majority, Dawson, Toohey and Gaudron JJ, who allowed the appeal, said in their joint judgment at 537: " The risk that the applicant might re-offend was of course a relevant factor in fixing a minimum term. But a minimum term of eighteen years and six months is of such length as to take the prospects of re-offending in this case beyond even speculation … the applicant's behaviour in prison is a relevant consideration, but the longer the minimum term the less importance it must assume, simply because of the impossibility of making a forecast of future behaviour so far ahead . Again, while the desire on the part of his Honour to protect the community is material to the fixing of a minimum term as well as a head sentence, its significance must be the less the longer the minimum term, simply because relevant forecasts cannot be made at such a distance ." (emphasis supplied) 27 Mason CJ and McHugh JJ, who dissented, said at 532: "In fixing a minimum term, a sentencing judge is bound to give close attention to the danger which the offender presents to the community. Naturally, as the length of the minimum term under consideration increases, so does the difficulty of making satisfactory predictions about the future progress of the offender and the danger he or she would present to the community. But that difficulty does not relieve the judge of his or her responsibility to take account of the need to protect the community. Necessarily the judge will be influenced by an assessment of the material before the court as to the prisoner's prospects of rehabilitation." (emphasis supplied) 28 It is significant that both judgments avoided the requirement of certainty ("will lead him to kill") used by Jacobs J in Veen [No 1] [para 22] and referred to forecasts and predictions and the majority referred to the risk of re-offending and the minority to the danger to the community. It is also significant that three of the Justices who sat in Bugmy also sat in Malec v J C Hutton Pty Ltd. Judgment was delivered in the former on 24 May 1990, and in the latter on 26 June and argument in the two cases overlapped. 29 In Mitchell v The Queen (1996) 184 CLR 333, which arose under later legislation in Western Australia which enabled a sentencing judge to order that the prisoner not be eligible for parole, the appellant who had been convicted on four counts of wilful murder and of associated sexual offences had been sentenced to strict security life imprisonment but the sentencing judge declined to order that he not be eligible for parole. The Full Court made that order following a Crown appeal but the prisoner's appeal to the High Court was successful. In their joint judgment Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 432 approved the remarks of Owen J, the sentencing judge, who said: "… I am not able to say that you will always be a danger to the public. That depends on whether you will stay [away] from drugs. Who knows what the future holds? I cannot prognosticate twenty years or more into the future on the basis of the material before me … if I were to make that decision now it would be that you not be released because I have little confidence in your commitment to free yourself from drugs. In the light of the expert evidence I am not able to say that this would be the case in twenty years or more from now." 30 In Boughey v The Queen (1986) 161 CLR 10 the Court considered the meaning of "likely" in s 156(2) of the Tasmanian Criminal Code which defined culpable homicide as including homicide caused by an act "which is commonly known to be likely to cause death or bodily harm", and in s 157(1) which defined murder as culpable homicide which the offender knew to be likely to cause death. Mason, Wilson and Deane JJ in their joint judgment said at 21-2: "In our view, the word 'likely' is used in both [sections] with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial - a 'real and not remote' - chance regardless of whether it is less or more than 50 per cent … To bury the word 'likely' in s 157(1) … beneath the gloss of 'more likely than not' and the explanation of 'a more than 50 per cent' or an 'odds on' chance would be … to attribute to the word 'likely' a requirement of a specific degree of mathematical probability which the word does not convey either as a matter of ordinary language or in its context in s 157(1) of the Code." 31 Gibbs CJ agreed with this conclusion (15). 32 Thus a finding that a prisoner is likely to re-offend does not even require a finding that it is more probable than not that he will do so, let alone a finding that this has been established beyond reasonable doubt. 33 The decisions in this Court are to the same effect. In R v Harrison (1997) 93 A Crim R 314, 319 Hunt CJ at CL, Newman and Ireland JJ in their joint judgment said: "… it should be emphasized that a sentencing judge is not required to be satisfied beyond reasonable doubt that a prisoner will in fact re-offend in the future. It is sufficient if a risk of re-offending be established by the Crown." 34 Recently in R v Robinson [2002] NSWCCA 359 Giles JA, Dunford and Greg James JJ in their joint judgment said (paras 48-9) "48. … What was said about likelihood of reoffending is relevant in the present case, where the imprisonment is for a very long time and the offence is murder. But certainty is not required, as indeed it could not be. 49. Giving weight in sentencing to protection of society against future reoffending must involve an assessment of both degree of likelihood and gravity of consequences. The likelihood must be a real likelihood, but certainty of reoffending can never be found. In looking to society's protection in determining the sentence the probability of the offender remaining a source of danger to the community and the gravity of the danger as a probability interact. [their Honours then referred to Harrison ] 50. In the present case the nature of the offence and the circumstances in which it was committed of themselves called for serious concern as to future reoffending." 35 The onus of proof in sentencing proceedings in respect of future possibilities has twice been considered by the Supreme Court of Canada. In Lyons v The Queen [1987] 2 SCR 309, 363-5 La Forest J delivering the judgment of Dickson CJ, Estey, McIntyre, Le Dain, and himself said: "The appellant submits … that s 688, in requiring proof that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons, or that there is a likelihood of the offender causing injury, pain or other evil to other persons … is fundamentally unfair in that the standard of proof required of the Crown is lower than that traditionally required in the criminal law … I do not believe that [this submission] is valid. First, it is important to recognise exactly what is and what is not required to be proved on such an application. Paragraphs (a) and (b) of s 688 both require proof that the offender represents a threat of some sort to society. It is nowhere required that it be proved that the offender will act in a certain way. Indeed, inherent in the notion of dangerousness is the risk, not the certainty of harm. The appellant asserts that a 'likelihood' is ipso facto not susceptible of proof beyond a reasonable doubt … The criminal law must operate in a world governed by practical considerations rather than abstract logic and, as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring … Moreover I am not convinced, even as a matter of logic, that the appellant's submission is sound. It seems to me that a 'likelihood' of specified future conduct occurring is the finding of fact required to be established … Logically it seems clear to me that an individual can be found to constitute a threat to society without insisting that this require the Court to assert an ability to predict the future. I do not find it illogical for a Court to assert that it is satisfied beyond a reasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm. That this is really only an apparent paradox is aptly captured by Morden J in R v Knight (1975) 27 CCC (2d) 343, 356: 'I wish to make it clear that when I refer to the requisite standard of proof respecting likelihood I am not imposing on myself an obligation to find it proven beyond a reasonable doubt that certain events will happen in the future - this, in the nature of things would be impossible in practically every case - but I do refer to the quality and strength of the evidence of past and present facts together with the expert opinion thereon, as an existing basis for finding present likelihood of future conduct'" 36 See also The Queen v Currie [1997] 2 SCR 260 at para 42 per Lamer CJ delivering the judgment of the Court. 37 The sentencing judge found that the applicant posed "a significant level of future dangerousness" and there was "a substantial risk" of him "reoffending in both violent and sexual ways" [para 8] and that he was "a serious risk to the community in terms of potentially killing again or committing sexual offences" [para 9]. At the same time he directed himself that he had to sentence "in the light of what is presently known" and that the experts were not "certain of what the future holds" [para 9]. 38 His Honour made findings on the criminal onus, which were open to him on the evidence, about what was "presently known" about the prisoner and on that basis made his findings about the risk to the community. He accepted that the prisoner's future was problematic and that he could not be certain what the future held. 39 The Judge's findings of present fact cannot be disturbed and on the basis of those findings he was entitled and bound to evaluate the risk that the applicant would pose to society on his release from prison. His Honour did not presume to assess the risk of future serious criminality on the basis that he was satisfied beyond reasonable doubt that the applicant would re-offend in this way. 40 A sentencing judge is not bound to disregard the risk that a prisoner would pose for society in the future if he was at liberty merely because he or she cannot find on the criminal onus that the prisoner would re-offend. The view that the risk of future criminality can only be determined on the criminal standard is contrary to all the High Court decisions since Veen [No 1]. 41 In any event his Honour structured his sentence so that he did not have to undertake the task of making definitive findings as to the degree of risk that the applicant would pose to society many years in the future. He crafted a head sentence, after carefully weighing the relevant factors, and fixed a non-parole period which accommodated the interest of rehabilitation and permitted an extended period of release on parole (para 140). 42 The present case is the converse of Chester [para 25], Bugmy [para 26] and Mitchell [para 29] where the sentencing judges imposed sentences which pre-judged the prisoner and the risk he would pose to society, eighteen and a half years, twenty years, or even longer into the future. 43 In this case the sentencing judge has fixed a non-parole period which is not, and could not be challenged, and has refused to make a binding forecast of future behaviour beyond that period. Effectively this was only eight years and six months into the future after allowing for the applicant's pre-sentence custody. Thereafter the assessment of the prisoner and the risks he will then pose to society have been left to be determined by the parole authorities who should have much better information as to the prisoner's rehabilitation and prospects at the end of the non-parole period and thereafter than the Judge had, or could possibly have had. 44 In my judgment therefore the sentencing Judge imposed a sentence which reflected "the impossibility of making forecasts of future behaviour so far ahead" [para 26 Bugmy] and avoided the problems which arise when sentencing judges attempt to do this. 45 Leave to appeal should be granted but the appeal should be dismissed. 46 SULLY J: I agree with Handley JA. 47 BUDDIN J: I agree with Handley JA. **********

REGINA v S L D

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Cases Cited (10)

Cited By (24)