Court of Appeal (WA)|2007-01-19|Before: Smith JA

TEAKLE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 15 (19 January 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : TEAKLE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 15

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Courts and Judges - Sentencing Judge conducting private conversation with author of psychiatric report without the knowledge or consent of the parties - Judge failing to disclose the fact and content of the conversation to the parties before sentencing - Risk to the integrity of the sentencing process - Breach of requirements of procedural fairness - Miscarriage of justice

Sentence - Wilful murder - Strict security life imprisonment - Minimum term before parole of 22 years - Whether inadequate discount given for plea of guilty

Appeal - Whether sentence should be set aside if ground of appeal succeeds but Court of Appeal would not have imposed different sentence

"HAS" v The State of Western Australia [2005] WASCA 29

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 80 ALJR 228

Benter v The State of Western Australia [2005] WASCA 245

Chivers v The State of Western Australia [2005] WASCA 97

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Fullgrabe v The State of Western Australia [2006] WASCA 138

Gifford v The King (1947) 49 WALR 97

Houghton v The State of Western Australia (2006) 30 WAR 266

Kanda v Governor of Malaya [1962] UKPC 2; [1962] AC 322

Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442

Little v The Queen [2001] WASCA 87

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mitchell v The Queen (1998) 20 WAR 257

Monaghan v The Queen (1990) 3 WAR 466

Morse v The Queen [1977] WAR 151

Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85

R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122

R v War Pensions Entitlements Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228

Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1

Robbins v National Trust Co [1927] AC 515

Russell v Russell (1976) 134 CLR 495

Tan v The Queen, unreported; CCA SCt of WA; Library No 960188; 1 April 1996

The State of Western Australia v Sabek [2005] WASCA 207

Verschuren v The Queen (1996) 17 WAR 467

Chow v Director of Public Prosecutions (1992) 28 NSWLR 593

Chua v The Queen [2001] WASCA 353

Fry v The Queen, unreported; CCA SCt of WA; Library No 8945; 12 July 1991

Jackson v The Queen [1990] WAR 105

Khoo v The Queen, unreported; CCA SCt of WA; Library No 960184; 2 April 1996

O'Connor v The Queen, unreported; CCA SCt of WA; Library No 940525; 22 September 1994

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282

R v Storey [1998] 1 VR 359

Roberts v The Queen [2003] WASCA 237; (2003) 28 WAR 381

Webb v O'Sullivan [1952] SASR 65

Williams v The Queen (1996) 17 WAR 17

1 ROBERTS-SMITH JA: I agree with the reasoning and conclusions of Pullin JA. I also agree with the additional observations made by Buss JA about the proper construction of s 15 of the Sentencing Act 1995 (WA). I adhere to the views about that which I set out in Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530 at [38] - [54]. However, on further reflection, I now consider my view then (at [55]) that the Magistrate there was entitled to seek additional information by obtaining it himself from court records or the Fines Enforcement Registry, provided he disclosed that to the parties and gave them an opportunity to challenge or make submissions on it, was not correct. I was mindful at the time of cases in which it had been held that the fact that information had come to a judicial officer privately would not vitiate the proceedings provided there was disclosure and an opportunity to be heard on it. On revising those cases, they seem to contemplate only the taking of judicial notice of published works of authority or situations in which information comes to notice inadvertently or by the action of some third party. The first is a well-recognised exception at common law (see the passage from the judgment of Malcolm CJ in R v GP (1997) 18 WAR 196, 211 - 212, quoted in Griekspoor (supra) at [51]). The second is a practical accommodation to the exigencies of life and does not countenance active private inquiry by a judicial officer.

2 For the reasons given by Buss JA, I agree that neither the common law nor s 15 of the Sentencing Act authorises a judicial officer to make a private inquiry, out of court, about any matter the subject of sentencing proceedings before him or her. However, should a judicial officer otherwise have such information brought to their attention, the proceedings will ordinarily not be vitiated where that information is fully put before the parties and they are given an appropriate opportunity to deal with it.

3 PULLIN JA: This is an appeal against sentence.

4 The appellant was charged that on 27 July 2004 at Tuart Hill he wilfully murdered Chantal Teresa Reed. The appellant pleaded guilty to that charge in the Supreme Court on 2 May 2005, and on 1 July 2005 he was sentenced by Justice Templeman to strict security life imprisonment with 22 years to be served before he is eligible for parole.

5 At the start of his sentencing remarks, the learned sentencing Judge noted that "because the offence is wilful murder I have two decisions to make: first to decide whether to impose a sentence of life imprisonment or strict security life imprisonment, and secondly to determine the length of

time you will have to serve in prison before being eligible for parole." These comments reflect s 282 of the Criminal Code, which set out the punishment for wilful murder, and s 90 and s 91 of the Sentencing Act, which set the minimum and maximum periods of imprisonment before parole eligibility. The sentencing Judge also referred to the factors to be taken into account in making those two decisions, including "the circumstances of the offence; [the appellant's] culpability; any aggravating or mitigating circumstances, and in regard to mitigating circumstances ... any relevant matters personal to [the appellant] ... regard to the protection of the community; to the question of deterrence, both to [the appellant] and generally, to punishment and reformation and retribution for [the appellant's] crime."

6 The facts of this case as stated by the sentencing Judge are as follows. Chantal Reed was a former neighbour of the appellant when he lived in Tuart Hill. They were neighbours for about 12 months until the appellant moved about two weeks before the offence. Ms Reed was a 25-year old single mother who lived with her two young children, a 2-year-old boy, and a 6-week-old girl.

7 At the time of the offence the appellant was unemployed and appeared to be suffering financial difficulties. He returned to his Tuart Hill unit on 26 July to collect mail, and spent time watching the deceased and her unit. It appears that during this time he formed an intention to rob the deceased. He returned to the deceased's unit the following day, some time between midday and 3 pm. He knocked on the door and was invited in. A discussion then took place in the kitchen/lounge, during which the appellant may have asked the deceased to lend him money. The conversation deteriorated into an argument, the culmination of which was that the appellant grabbed the deceased by the hair and dragged her into the bathroom/laundry area. He shut the door and threw the deceased to the floor, putting his knee on her throat. There was then a struggle, during which the appellant was cut on the finger by a knife the deceased was holding. It appears she had been preparing lunch when the appellant arrived and had the knife in her hand when he dragged her into the bathroom/laundry. The cut was quite deep, severing tendons to one of the appellant's fingers. At that point the appellant overpowered the deceased, took the knife from her and proceeded to stab her with it. She received defensive wounds to the hands and arms and right thigh. The appellant then delivered what was found to be the fatal blow, a 12 cm deep wound which penetrated her heart. Continuing the attack, the appellant turned the deceased over and stabbed her a further 10 times in the back, to depths ranging from 3 to 10 cms. He then turned her back onto her front and cut at her throat and wrists. He did that, he said, to make sure she was dead. The appellant then attempted to clean up and remove any of his own blood from the scene. He departed with the murder weapon, which he later disposed of, and locked the house behind him, leaving the two small children inside with their dead mother.

8 The deceased was discovered later that afternoon when relatives telephoned and were disturbed when it was answered by the 2-year-old boy. They attended the unit, broke in and found the deceased where the appellant had left her.

9 The appellant was identified as a person of interest a couple of months after the offence. He was interviewed by the police on the night of the 9 November to the morning of 10 November 2004, where he initially denied involvement before confessing.

"1 The learned sentencing Judge erred in allowing no or insufficient discount in the sentence imposed for the offender's fast-track plea of guilty and prior good antecedents.

2 The learned sentencing Judge erred when he privately discussed the content of the medical report with the psychiatrist involved, without affording counsel for the Appellant the opportunity to reply or make submissions to such."

Ground 1 - Discount for guilty plea and good antecedents

11 A guilty plea is a mitigatory factor (see s 8(2) of the Sentencing Act) which will usually attract a discount to the sentence which would otherwise have been imposed.

12 Section 8(4) of the Sentencing Act states that

"If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court."

13 It would be an error of law for a sentencing Judge not to state that he or she is giving an offender a discount on his sentence because of the plea. However, it is not an error for the Judge not to state the specific amount by which he or she has discounted the sentence: see Chivers v The State of Western Australia [2005] WASCA 97 at [52]; Fullgrabe v The State of Western Australia [2006] WASCA 138 at [29].

14 In this case, the sentencing Judge specifically mentioned both the guilty plea and the appellant's personal circumstances. He said:

"Your previous good character to which I have referred is a mitigating circumstance. So also is your plea of guilty and your confession. Although you hesitated before you confessed and although there was some hesitation before you pleaded guilty I am satisfied that your plea and confession does demonstrate deep remorse for your actions. ...

I am required under the Sentencing Act to tell you in open court if I reduce the sentence I would otherwise have imposed because of these mitigating circumstances, and that is indeed the case."

15 In light of those remarks there is no merit in that part of the ground of appeal which suggests that the learned sentencing Judge allowed no discount for the fast-track guilty plea or prior good antecedents. This aspect was rightly abandoned by counsel for the appellant during the appeal. The question then remains whether a large enough discount was given.

16 In sentencing an offender for wilful murder, a sentencing Judge has to make two discretionary decisions. First, whether to impose life imprisonment or strict security life imprisonment (s 282 (a) and (b) Criminal Code) and second, at what level to set the minimum period before parole (assuming parole eligibility is being ordered) within the range prescribed by s 90(2) and s 91(1) of the Sentencing Act. However, this does not mean that the Judge is doing anything more than imposing a single sentence, to which he or she has to apply any aggravating or mitigating factors before coming to a final figure. See Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 at [57].

17 While it has been recognised that discounts for pleas of guilty are routinely in the range of 25 - 35 per cent (see Little v The Queen [2001] WASCA 87 at [13]), there is no tariff for guilty plea discounts, and the final amount of discount given will always be dependant on the circumstances of the case (see Verschuren v The Queen (1996) 17 WAR 467 at 469).

18 A Judge sentencing for wilful murder may sentence the offender to life imprisonment, with a minimum period before parole of between 15 and 19 years (s 90(2) Sentencing Act), or to strict security life imprisonment with a minimum period before parole of between 20 and 30 years (s 91(1) Sentencing Act), or to imprisonment for the whole of the offender's life without parole (s 91(3) Sentencing Act). In this case, having noted that this was an offence which was in the upper range of offences of this type, the learned sentencing Judge gave the appellant strict security life imprisonment with 22 years to be served before being eligible for parole. This sentence sets the minimum period before parole at 8 years below the maximum of 30 years, and only 2 years greater than the minimum of 20 years set for strict security life sentences.

19 There are two matters to note in relation to life imprisonment sentences. First, the transitional provisions, which apply to reduce by a third all fixed term sentences given, do not apply to life imprisonment or strict security life imprisonment because they are, by definition, not fixed term sentences (see Sentencing Act s 85 and cl 2(1)). Secondly, it is difficult to apply discounts to life imprisonment sentences in the way they are applied to fixed term sentences. When sentencing to life imprisonment for wilful murder, for example, a sentencing Judge has a limited discretion as to the final sentence and the minimum period he or she sets before parole (see Mitchell v The Queen (1998) 20 WAR 257 per Ipp J). Whilst it is technically possible for a Judge to reduce the minimum term before parole for both a life and a strict security life by 25 per cent (from the maximum non-parole periods of 19 and 30 years respectively), this is only for sentences at the very top end of the scale. For example, the period of 30 years before parole could be reduced to 22.5 years with a 25 per cent discount, but a mid-range sentence of 25 years, if discounted by 25 per cent, would drop below the prescribed minimum of 20 years. Judges must be allowed to set a sentence which they feel is appropriate in all the circumstances, without being constrained by having to allow a set discount, or range of discounts, for a plea of guilty.

20 In this case, the learned sentencing Judge, having noted that this was a case of the very worst type, sentenced the appellant to strict security life imprisonment and set a minimum of 22 years before parole. In my opinion the sentence of strict security life imprisonment was fully justified. As to the minimum period before parole, it is, in my opinion, well within the discretionary range. Remorse as expressed and represented by the plea of guilty was taken into account and in my opinion fixing the minimum term at 22 years must mean that a substantial discount was given. In the light of the direction by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 that courts of appeal may only substitute their own sentence when a sentencing Judge has made a demonstrable error, and not merely when they would have imposed a different sentence than the one imposed by the sentencing Judge, there is no merit in the suggestion by the appellant that an inadequate discount was given for his plea of guilty and good antecedents.

22 In relation to an appeal against conviction, s 31(3) of the Criminal Appeals Act 2004 (WA) directs the Court of Appeal to dismiss the appeal unless under s 31(4) the Court allows the appeal. The only circumstances in which the Court of Appeal may allow the appeal in relation to sentence is if the Court forms the opinion that a different sentence should have been imposed. However, the Court does not review the sentence to decide whether a different sentence should have been imposed unless some error is revealed. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [3]. Usually the alleged error is an error made by the sentencing Judge in the exercise of his or her discretion in regularly conducted proceedings. In this case, the allegation is about an error consisting of a defect in the process. The appellant contends that there has been a breach of the requirements of procedural fairness amounting to a miscarriage of justice. If there has been a miscarriage of justice, then that will require a Court to consider what sentence should have been imposed. If the Court is of the opinion that no different sentence should have been imposed, then the appeal must be dismissed.

23 The circumstances in this case were as follows. A psychiatric report was prepared and placed before the sentencing Judge. The report was made the subject of comment by both counsel during the course of sentencing submissions on 22 June 2005. Neither party required the psychiatrist to be called as a witness. Counsel for the prosecution said in her submissions:

"When one then combines in the psychiatric report the conclusion so far as risk assessment that is made by the author of the report - and I'm reading now, your Honour, from the final paragraph of the report of Dr Wu dated 30th January. He concludes:

'The risk for him to re-offending in a similar way, given that he is sober, appears to be much lower.'

He goes on to make some recommendations which he believes would further reduce the risk of re-offending. He doesn't say he won't re-offend. He just says that the risk is lower."

24 The matter was adjourned until 1 July 2005 for the sentencing Judge to consider all the material before him. On 1 July 2005 the sentencing Judge sentenced the appellant. During his sentencing remarks the sentencing Judge said the following:

"I have to consider the protection of the community and in particular whether you are likely to be a risk in the long term. I have had regard to the psychiatric report and I refer in particular to the conclusion which the prosecutor referred to on the last occasion. The psychiatrist said:

'The risk for him to re-offend in a similar way, given that he is sober, appears to be much lower. I would also recommend that he received [sic] appropriate psychiatric and psychological counselling as appropriate measures to further reduce the risk of re-offending'.

I wasn't entirely clear what the psychiatrist meant when he referred to the risk being much lower and further reducing the risk of re-offending. I have spoken to him myself and the psychiatrist said that what he meant was that this report was, as he put it to me, a snapshot in time. It was an assessment of [the appellant] on the day on which he examined [him]. It was not intended to be a prediction of [his] likely condition many years hence when [he becomes] eligible for parole.

The psychiatrist pointed out to me, as I had noted in the report, that [the appellant] had been screened for other symptoms relating to bipolar disorder, psychosis, schizophrenia, but there was none elicited. In other words, as the psychiatrist said, he could find no psychiatric illness, no evidence of psychiatric illness, so that his view was that given an opportunity to overcome the depression and personality problems that [the appellant has] there is no reason to think in the long term that [the appellant] would ever re-offend again.

I therefore come to the conclusion that after the fullness of time you would not be a risk to the community and that you would never again be likely to commit an offence of this kind." (Emphasis added)

25 The appellant was not aware that the sentencing Judge had spoken to the psychiatrist until this was disclosed during the course of the sentencing remarks. It is the private conversation referred to by the learned sentencing Judge, and the failure of the Judge to give the appellant the opportunity of making submissions or clarifying what was said to his Honour, about which the appellant complains.

26 This Court, pursuant to s 40(1)(h) of the Criminal Appeals Act, requested the sentencing Judge to supply a report about:

(a) whether he obtained the consent of the parties before speaking to the psychiatrist;

(b) whether he disclosed the content of the conversation he had with the psychiatrist to the parties, and

27 The sentencing Judge has supplied his report which reads as follows:

"I am required by the Court of Appeal to supply a report about the matters referred to in pars (a), (b) and (c) in the Order annexed hereto.

I report as follows.

The final paragraph of the report dated 30 January 2005 of Dr Raymond Chong K Wu, a consultant psychiatrist, opened with the sentence:

'The risk for him [the appellant] to re-offend in a similar way, given that he is sober, appears to be much lower. I would also recommend that he received [sic] appropriate psychiatric and psychological counselling as appropriate measures to further reduce the risk of re-offending.'

This prognosis was not entirely clear to me, although it seemed to be favourable to the appellant because it suggested that the risk of re-offending would be low.

Section 15 of the Sentencing Act 1995 (WA) empowered me to inform myself in any way I thought fit in order to decide on the proper sentence to be imposed on the appellant.

In the exercise of that power, I telephoned Dr Wu and asked him to clarify the final paragraph of his report. His response was as set out in the first paragraph extracted from my sentencing remarks and appearing on page 2 of the Order.

Dr Wu went on to point out the matters set out in the second extract on page 2 of the Order.

The conversation I had with Dr Wu confirmed that his report was favourable to the appellant. In those circumstances, I did not think it necessary to notify the parties in advance of the sentencing hearing, as I would have done, had Dr Wu's observations been unfavourable to the appellant.

Against that background, I answer the specific questions set out in the Order as follows:

(a) whether he obtained the consent of the parties before speaking to the psychiatrist

(b) whether he disclosed the content of the conversation he had with the psychiatrist to the parties

Answer: Yes, during the course of my sentencing remarks.

(c) whether he invited submissions from the parties about the content of the conversation

28 A copy of the report was provided to the parties who were invited to make written submissions. The appellant submitted that:

"The sentencing transcript (AB 74D) shows that, after reciting the substance of the telephone conversation between Justice Templeman and Dr Wu, His Honour came to the conclusion that after the fullness of time you would not be a risk to the community and that you would never again be likely to commit an offence of this kind (my emphasis) ...

There was no clarification, nor were defence given the opportunity to address, what the phrase fullness of time meant and the time period concerned.

... The passages referred to in the Order and the quote referred to in the Report were prefaced by the learned sentencing Judge stating:

I have to consider the protection of the community and in particular whether you are likely to be a risk in the long term (my emphasis) (AB 74A) ...

It was with a view to determining long term prognosis His Honour sought clarification from Dr Wu. This is further buttressed by His Honour's reference to after the fullness of time."

"It is trite to say that were Dr Wu summonsed or requested to attend before the sentencing court on 1 July 2005 he could then have clarified matters upon which he was questioned by Justice Templeman in open court and, in such circumstances, could have been questioned by counsel for the Appellant and the Respondent with regard to matters raised both in his report and after clarifying the matters raised by Justice Templeman ...

In particular, given the references by Dr Wu and, to that extent, the learned sentencing Judge of the need for time to pass;

• I therefore come to the conclusion that after the fullness of time ... (AB 74D).

defence counsel could have sought to ascertain with some precision exactly what was meant by those phrases as they apply to the Appellant. ...

It is submitted the fact the learned sentencing Judge was arbitrarily of the view the information obtained was favourable to the Appellant and therefore he did not need to inform the Appellant of it, denied the Appellant's trial counsel the opportunity to have the issues raised and addressed in open court. ...

Were they so canvassed and further clarified, with counsel for the Appellant able to make further submissions on them, it is arguable, given the circumstances of the offence and, in particular, the fast track plea of guilty to the charge of wilful murder, a minimum period of 20 years to be served would have been imposed."

30 The respondent submits that there was no miscarriage of justice because it contends that the information was entirely favourable.

31 The discussion about the issues raised by this ground must begin with a consideration of the attitude of the common law and then consider the effect of s 15 of the Sentencing Act.

32 At common law it is a fundamental principle that a Judge must not hear evidence, receive representations, or receive any communication concerning a case otherwise than in the presence of, or with the previous knowledge and consent of, both parties: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; Kanda v Governor of Malaya [1962] UKPC 2; [1962] AC 322 at 337; R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122 at 127. If this principle is not adhered to, then subsequent disclosure by the Judge of the evidence, the representation or the communication may sometimes, but will not always, dispel any reasonable apprehension which may arise, that the Judge has been improperly influenced, and that the integrity of the judicial process has been compromised: Re JRL (supra) per Mason J at 351. An infringement of the principle will cause a miscarriage of justice, because a miscarriage of justice will occur whenever there is "such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper use of the word judicial procedure at all": Robbins v National Trust Co [1927] AC 515 at 518; TKWJ v The Queen ([2002] HCA 46; 2002) 212 CLR 124 at [64] per McHugh J. In Weiss v The Queen [2005] HCA 81; (2005) 223 ALR 662 at [18], the High Court said that the expression "miscarriage of justice" may be applied to any departure from trial according to law regardless of the nature or importance of that departure.

33 In a case where a Judge gathers and relies on documentary information, if the information is adverse to the offender, then ordinarily the sentence "will be set aside": R v Wise [2000] VSCA 169; (2000) 2 VR 287 per Ormiston JA at [21]. That observation must be read as subject to the proviso that if the Court considers the matter afresh and concludes that no different sentence should be imposed then the appeal will be dismissed.

34 In a case where the Judge gathers oral information in a conversation with a person in the absence of the parties, there is a potential for disputation between the parties, or between the parties or a party and the Judge, about what was said to the Judge. There is nothing which obliges the parties to accept the Judge's account of what he or she was told. If this disputation occurs, then the integrity of the judicial process will be compromised. The existence of the potential for disputation is just one of the reasons supporting the fundamental common law principle referred to in Re JRL (supra). Another is that the Judge's conduct may give the appearance of bias and may therefore infringe another fundamental principle that justice must both be done and seen to be done: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].

35 Having stated the common law position, the question is then about the effect of s 15 of the Sentencing Act 1995. Section 15 of the Sentencing Act had its ancestry in s 656 of the Criminal Code. The provision, as it appeared in the Code when enacted, read:

"The Court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the sentence proper to be passed."

36 It remained in the Code in that form until 1985. In 1947 in Gifford v The King (1947) 49 WALR 97, a Judge, in sentencing a prisoner who had no record of any kind, received and considered a police report in regard to the appellant's character and activities which was unfavourable to the appellant. The report was not shown to the appellant or his counsel, and it was admitted that the appellant had no previous convictions. Dwyer CJ, delivering the judgment of the Court, said that "[f]or a long time past" evidence of character had been handed up in the form of written testimonials or certificates of character. The Chief Justice said that if that were permitted in favour of the prisoner, then:

"... it is equally open for the Crown to submit a report by the police with the intention of presenting any opposing view, whether minimising the value of the evidence regarding character, or lessening the possibly favourable view which might be taken of it."

37 The Chief Justice said that it was "not necessary that such testimony should be given on oath and comply with the strict rule of legal evidence". Dwyer CJ also added that the Judge "is entitled to make his own inquiries in order to determine the propriety of a particular sentence". The appeal was dismissed. No reference was made to s 656 in the reasons for decision as a justification for what happened in that case.

38 The observations of Dwyer CJ came under consideration in Morse v The Queen [1977] WAR 151. Burt CJ delivered the lead judgment. In Morse, an antecedent report, which included an allegation that the appellant was a well-known associate of convicted drug dealers, came before the sentencing Judge. This was shown to the prisoner, who denied the allegation. The prosecution called a detective who gave hearsay evidence on oath to support the allegation. The Judge ruled he was authorised to receive it by s 656. The offender appealed and the appeal was allowed. Burt CJ delivered the judgment of the Court. In his reasons for decision he discussed the remarks of Dwyer CJ, and said that he did not think that Dwyer CJ was laying down any general proposition of law and that, if he did so, then Burt CJ said he disagreed with it. Burt CJ said that he acknowledged that Gifford's case may have recorded "the practice" as it was then, and as had since been followed, of receiving reports, including pre-sentence reports and references bearing on matters personal. He said that this was done in an informal way and sub silentio by consent. Speaking of the section as it then stood, Burt CJ said, concerning information put before the sentencing court containing information prejudicial to the offender, that:

"I can find nothing in s 656 of the Criminal Code which supports the view acted upon by the sentencing judge in the present case. The words 'as he thinks fit' in the paragraph now under discussion are words which make the sentencing judge the judge of the relevance of the tendered evidence to the discretion in sentencing which he is called upon to exercise. They are not words which give any different or extended meaning to the word 'evidence' so authorising the reception of hearsay information."

39 Burt CJ said that if information prejudicial to the accused was proffered by the prosecution, it must be "sworn to and proved by evidence which is according to the rules of evidence admissible".

40 Eight years later, s 656 was amended. It was amended in accordance with the recommendation of Mr M J Murray (as his Honour then was) in his report entitled "The Criminal Code. A General Review", which was delivered to the Attorney General and published by him on 28 September 1983. Mr Murray referred to the case of Morse, and particularly the aspect of the case where Burt CJ said that if there was a contest, then prejudicial material must be proved by compliance with the rules of evidence. The report then contained a recommendation as follows:

"I propose that Section 656 should be reframed (see Appendix A) to expressly permit what it was always thought the Section did authorise, and that is that the court might inform itself in such manner as it thinks fit in order to arrive at the appropriate sentence.

It is not anticipated that this involves any alteration in the proper practice of the courts. No doubt where there is a conflict of evidence for sentencing purposes the court would still require to resolve that conflict according to the strict rules of evidence, particularly if the conflict was to be resolved against the offender. However by preserving a discretion to the Judge the Section would sanction existing less formal procedures for receiving information in relation to sentence which are convenient to all involved in that process."

41 The proposed amended s 656 appearing in Appendix A was in the form which was then enacted by s 25 of the Criminal Law Amendment Act 1985 (No 119 of 1985).

"Before passing sentence or otherwise disposing of the case according to law the Court may inform itself in such manner as it thinks fit in order to decide upon the proper sentence to be passed, order to be made, or other disposition of the case."

43 It may be observed that the section, in this reformulated way, does not any longer refer to the court receiving "evidence". Section 656 was repealed when the Sentencing Act was passed. Section 15 of the Sentencing Act is to similar effect and it reads:

"To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit."

44 Once again it may be observed that this section does not provide that the court may "receive such evidence as it thinks fit" in order to inform itself as to the proper sentence to be passed, but now says that the court, in sentencing an offender, "may inform itself in any way it thinks fit". However, the new section does not use the statutory form which applies in some tribunals which expressly states that the rules of evidence are not to apply. See for example s 32 of the State Administrative Tribunal Act 2004 (WA). This Court has not received any submissions about whether that is the effect of s 15 and so I will not express a view about it. However, even if the section should be taken to have that effect, this does not mean that the effect of the rules of evidence should always be ignored. As Evatt J said in R v War Pensions Entitlements Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 256, when speaking of a statutory provision which stated that the tribunal was not bound by the rules of evidence:

"But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence as such do not bind, every attempt must be made to administer 'substantial justice'."

45 Whatever effect s 15 has in relation to the rules of evidence, the section does not diminish in any way the requirements of procedural fairness. As concluded by Roberts-Smith J (as he then was) in Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530 (applied by the Court of Appeal in The State of Western Australia v Sabek [2005] WASCA 207 at [29] and "HAS" v The State of Western Australia [2005] WASCA 29 at [49]), the section does not mean that a sentencing court may have resort to material without reference to the parties and without giving them an opportunity to be heard on it.

46 In this case an issue has arisen about the extent to which the statements made by the author of the psychiatric report to the sentencing Judge in the private conversation were favourable to the appellant. This exemplifies the particular problem associated with a Judge gathering oral information.

47 In this case, the sentencing Judge's action in failing to disclose the information to the parties before his sentencing remarks was a breach of procedural fairness and a miscarriage of justice amounting to an error, requiring this Court to consider whether a different sentence should be imposed. I should add, that the sentencing Judge acted in the belief that he was authorised to do as he did by reason of s 15 of the Sentencing Act. However, as I have explained, s 15 does not provide authority to a Judge to gather information which is not then disclosed to the parties before judgment.

48 A reference was made by both parties to Tan v The Queen, unreported; CCA SCt of WA; Library No 960188; 1 April 1996. In that case a sentencing Judge had, between conviction and sentencing, made his own inquiries about whether the appellant was a member of a kung fu school. The written information was that he was a member. The information contradicted what the appellant had said in evidence at trial. The information was disclosed to counsel before sentencing occurred. Heenan J (Murray J agreeing) said:

"It seems that the course taken by the learned trial Judge to inform himself as to the martial arts activities of the applicant was of an inquisitorial nature. To that extent it departed from the judicial role to which we are accustomed in our common law system, if only because it might suggest excessive zeal or even give rise to the apprehension that when sentencing the Judge would not perform his role with the necessary impartiality. It is a course which is unusual and it is a course which should not be taken. That leads us to consider whether the exercise of the sentencing discretion miscarried."

49 Unfortunately, no reference was made to s 656 of the Criminal Code (or s 15 of the Sentencing Act 1995 if it then applied). I therefore gain little assistance from the decision in Tan.

Whether a different sentence should have been imposed

51 Ground 2 having been upheld, it becomes necessary to consider whether a different sentence should have been imposed. The parties agreed that this Court should rely upon the submissions which were made before the sentencing Judge, along with the information contained in a mediation report which has been received by the Court, and on the written submissions made by the parties after the mediation report had been received. The parties have agreed that any information gathered privately by his Honour should be disregarded. I would accept that there is no information suggesting that the appellant was likely to reoffend. The mediation report was not ordered by the court under s 27(1) of the Sentencing Act. However, s 27(3) provides that whether or not a mediation report has been ordered, a mediator may give one to the sentencing court, and the parties agreed that the content of the report could be taken into account if either ground of appeal succeeded. The mediation came about because the victim's mother wanted more information about what happened on the day of the offence, including information about where the victim's children were when the appellant was in the unit. I do not propose setting out in these reasons the content of the mediation report, because the victim's mother has not been asked if she consents to the disclosure. However, what is clear from the mediation report is that the appellant did willingly participate and agree to meet with the victim's mother, which, as his counsel says in his further written submissions, reflects a strong positive step taken by the appellant towards his rehabilitation. His participation can also be accepted as evidence of the continuing remorse which was first expressed when he pleaded guilty. As it is necessary to reconsider what an appropriate sentence should be, I have re-examined the factors which bear upon the imposition of sentence. In sentencing the court must impose a sentence which is commensurate with the seriousness of the offence, which must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, including the vulnerability of the victim, along with the aggravating and mitigating factors. This was an offence of the utmost seriousness. The appellant knew the victim, began watching her and at some stage formed the intention to rob her. He gained access to the unit when he knew she was alone and he killed her in the circumstances which I have set out above. He did this while the victim's children were in the unit. He cut the victim's throat and wrists to make sure she was dead. He attempted to conceal evidence of his presence. He took the murder weapon away with him. He locked the house, leaving the two small children in the unit with the body and told no-one they were there. He suffers from no psychiatric illness which might explain his conduct. As points of mitigation, he suffered depression and personality problems, but there is no reason to think that he will be likely to offend again. He pleaded guilty and the plea of guilty plus the mediation report demonstrates that he is remorseful.

52 In my opinion, this was a case in the upper range of offences of this type, and it warrants strict security life imprisonment. Counsel for the appellant in his oral submissions did not contend that strict security life imprisonment was not the appropriate sentence. Instead he concentrated his submissions on what the minimum term before parole should be. He submitted that it should be 20 years. This is the lowest minimum which may be set. In my opinion, the points of mitigation, particularly his plea of guilty and his willingness to participate in the mediation, warrant an

order setting the minimum before parole at the lower end of the scale, but to set it at the bottom of the available range cannot be justified. I consider that the appellant should serve 22 years before being eligible for parole. Counsel for the appellant referred to Monaghan v The Queen (1990) 3 WAR 466 and the facts in that case. I see no value at all in referring to the facts of another wilful murder case and seeking to distinguish or compare the facts in that case from or to the facts in this case. By reason of s 31(3) and (4) of the Criminal Appeals Act the Court will only allow the appeal if, in its opinion, a different sentence should have been imposed. See Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385 at [60]; Benter v The State of Western Australia [2005] WASCA 245 at [31] and Houghton v The State of Western Australia (2006) 30 WAR 266 at [46]. In this case, I would not allow the appeal because, in all the circumstances, I would not impose a sentence different from that imposed by the sentencing Judge. I would therefore dismiss the appeal.

53 BUSS JA: The material facts and the grounds of appeal are set out in the reasons of Pullin JA.

54 I agree with Pullin JA, for the reasons he gives, that ground 1 is without merit.

Ground 2: section 15 of the Sentencing Act 1995 (WA) and its legislative history

55 Section 15 of the Sentencing Act 1995 (WA) provides:

"To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit."

56 Section 656 of the Criminal Code (WA) included a provision which was the legislative precursor of s 15 of the Sentencing Act. Before s 656 was amended by s 25 of the Criminal Law Amendment Act 1985 (No 115 of 1985), to give effect to a recommendation in the report of Mr M J Murray (as his Honour then was) entitled "The Criminal Code. A General Review", s 656 provided, relevantly:

"The Court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the sentence proper to be passed."

57 Mr Murray said, at 426 - 427 of his report, in relation to that provision:

" ... It was originally thought that that provision empowered the Court to receive information in any manner which it would accept in relation to sentence but there has now been some doubt thrown on the effect of the provision particularly having regard to its use of the word 'evidence'.

Of course courts commonly receive information in a form other than sanctioned by strict rules of evidence for sentencing purposes. They receive that information by way of antecedent and pre-sentence reports, psychiatric reports, written references and in the course of counsel's address in mitigation. But in the case of Morse v. R. (1977) WAR 151 our Court of Criminal Appeal ruled that at least where there was a contest of fact the Court was not empowered by this provision to receive hearsay information to enable it to pass sentence. To accommodate existing practice the Court was required to place what is in my respectful view a rather strained interpretation upon the provision. It held that information which was not according to the strict rules of evidence was admissible unless contested when it became inadmissible and the Court was thrown back upon the strict rules of evidence."

58 Mr Murray then recommended, at 427, that s 656 be amended:

"I propose that Section 656 should be reframed (see Appendix A) to expressly permit what it was always thought the Section did authorise, and that is that the court might inform itself in such manner as it thinks fit in order to arrive at the appropriate sentence.

It is not anticipated that this involves any alteration in the proper practice of the courts. No doubt where there is a conflict of evidence for sentencing purposes the court would still require to resolve that conflict according to the strict rules of evidence, particularly if the conflict was to be resolved against the offender. However by preserving a discretion to the Judge the Section would sanction existing less formal procedures for receiving information in relation to sentence which are convenient to all involved in that process."

The relevant provision of s 656, as amended pursuant to Mr Murray's recommendation, provided:

"Before passing sentence or otherwise disposing of the case according to law the Court may inform itself in such manner as it thinks fit in order to decide upon the proper sentence to be passed, order to be made, or other disposition of the case."

That amended provision was identical to the recommended provision in Appendix A to Mr Murray's report, and is not materially different from s 15 of the Sentencing Act.

59 A court may, at common law and apart from any reliance on such provisions as s 19 of the Interpretation Act 1984 (WA), have regard to reports of law reform bodies to ascertain Parliament's intention in enacting a statutory provision. See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 112 - 113.

Ground 2: private communications and inquiries by a Judge and procedural fairness

60 In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, a court counsellor approached a Judge of the Family Court in the Judge's private chambers to complain about the intended adjournment of the hearing of a custody application. The counsellor volunteered information about her qualifications as a prospective witness and canvassed aspects of the proceedings. After the conversation between the counsellor and the Judge, the Judge called counsel for the parties to her private chambers. The High Court held, by a majority, that the actions of the counsellor and the Judge gave rise to a reasonable apprehension that the Judge would not bring an impartial mind to the resolution of the issue. Mason J (who, with Gibbs CJ and Brennan J, constituted the majority) said, at 350 - 352:

"A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide. This principle immediately distinguishes the judicial branch from other branches of government, except in so far as they may be relevantly affected by the rules of natural justice. In conformity with the principle, every private communication to a judge made for the purpose of influencing his decision in a case is treated as a contempt of court because it may affect the course of justice. ...

...

... the receipt by a judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk. A failure to disclose that communication will seriously compromise the integrity of that process. On the other hand, although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other, subsequent disclosure will not always have this result. The circumstances of each case are all important. They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge.

The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong ((1976) [1976] HCA 39; 136 CLR 248, at 258 - 263); Livesey v NSW Bar Association ((1983) [1983] HCA 17; 151 CLR 288, at 293 - 294). This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done."

Also see the observations of Gibbs CJ at 346 - 347 and Brennan J at 369 - 370.

61 In R v Wise [2000] VSCA 169; (2000) 2 VR 287, Ormiston JA (with whom Brooking and Chernov JJA agreed) said, at 294 [21]:

"... a sentence should not be imposed if it is founded wholly or partly on material which has not come before the sentencing Judge in open Court: see R v Tait & Bartley ((1979) 24 ALR 473; 46 FLR 386 (Full Federal Court)). If any relevant material is gathered or obtained by the Judge from private sources or sources not available to the parties, which is capable of being used adversely to the offender, then, unless that course is specifically agreed to by counsel for the offender, the sentence will ordinarily be set aside: ibid."

In Wise, the sentencing Judge had obtained and relied upon a transcript of an earlier sentencing hearing relating to the offender which was not available to the parties. Also see R v Ulla [2004] VSCA 130; (2004) 148 A Crim R 356 at 361 - 363 [19] - [22].

62 It is a fundamental feature of the Australian judicial system that proceedings be conducted by a court which is, and is seen to be, independent and impartial, and that those proceedings should, with strictly limited exceptions, be conducted in public. See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 343 [3]; R v Tait (1979) 46 FLR 386 at 402; Russell v Russell (1976) 134 CLR 495 at 520.

63 Absent a clear legislative intent to the contrary, a statutory power conferred on a court must be exercised with procedural fairness. Compare Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 27 - 28 [81] - [83]. The rules of procedural fairness are concerned with procedures rather than outcomes, and they are therefore rules which govern what a court must do in the course of deciding how a statutory power should be exercised. In other words, the rules of procedural fairness are to be applied to the procedures by which a decision pursuant to the exercise of the statutory power will be made. Compare Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 80 ALJR 228 at 233 [16].

Ground 2: the proper construction of s 15 of the Sentencing Act

64 Section 15 of the Sentencing Act empowers a sentencing Judge to receive information which is not admissible under the law of evidence. The Judge is permitted to depart from the law of evidence, but he or she is not obliged not to apply that law.

65 The discretionary power conferred by s 15 must be exercised:

(a) in a manner which is consistent with, and does not prejudice or detract from, the integrity of the judicial process; and

(b) in accordance with the rules of procedural fairness.

66 It is unnecessary, in this appeal, to determine the precise ambit of s 15 or to articulate exhaustively how the power should be used. It is sufficient to state that the section does not authorise a sentencing Judge to engage in a private communication or undertake a private inquiry, on his or her own initiative and without the knowledge and consent of the parties, for a purpose relating to the sentencing of an offender.

67 If a sentencing Judge engages in a private communication or undertakes a private inquiry, on his or her own initiative and without the knowledge and consent of the parties, for a purpose relating to the sentencing of an offender, that conduct will tend to undermine public confidence in the judicial system and will involve the adoption of a procedure which is unfair to the parties. I am of that opinion for these reasons. First, the communication or inquiry will occur in the absence of the parties and without their knowledge or consent. Secondly, the communication or inquiry will not be conducted openly or in public. Thirdly, the Judge will be performing an inquisitorial function in which he or she will be involved actively in gathering facts. Fourthly, the Judge will not necessarily know, in advance, whether the communication or inquiry will reveal information which is capable of being used adversely or favourably to the offender. (But, in any event, any risk to the integrity of the judicial process, and the fairness of the procedure adopted, are not to be determined by whether the information obtained happens to be adverse or favourable.) Fifthly, even if the Judge has sought to make a proper record of the communication or inquiry, disputes may arise later as to the precise terms of the information which he or she has obtained and any associated nuances, especially if the information is sought or conveyed orally.

(a) engaged in a private communication with the psychiatrist, on his own initiative and for a purpose relating to the sentencing of the appellant, without the knowledge or consent of the parties; and

(b) failed to disclose to the parties the fact of that private communication, or the information he had obtained, before he commenced his sentencing remarks, in the course of which he imposed sentence.

69 In my opinion, the learned Judge's private communication with the psychiatrist, in the circumstances and for the purpose I have just mentioned, was not authorised by s 15 of the Sentencing Act or at common law. It should not have occurred.

70 Further, the learned Judge concluded, after his conversation with the psychiatrist, that "after the fullness of time" the appellant would not be a risk to the community. Plainly, that conclusion was a relevant consideration in his Honour's determination of the minimum term before eligibility for parole. The appellant (and the State) were entitled, in fairness, to a reasonable opportunity to explore and challenge the conclusion, its meaning, and the information on which it was based. In the circumstances, by engaging in the private communication and, also, by failing to make appropriate disclosure to the parties before he commenced his sentencing remarks, his Honour failed to accord procedural fairness.

72 Section 31 of the Criminal Appeals Act 2004 (WA) applies, relevantly, in the case of an appeal by an offender against the sentence imposed as a result of his or her conviction of an offence. An offender's appeal against sentence is referred to in s 31(1)(a). Section 31(3), (4) and (5) provide, relevantly:

"(3) Unless under subsection (4) the Court of Appeal allows the appeal, it must dismiss the appeal.

(4) The Court of Appeal may allow the appeal if, in its opinion -

(a) in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed; or

(b) ...

(5) If the Court of Appeal allows an appeal referred to in subsection (1)(a), it must set aside the sentence and -

(a) may instead impose a new sentence that is either more or less severe; or

(b) may send the charge back to the court that imposed the sentence to be dealt with further."

The effect of those provisions is that this Court may allow an offender's appeal against sentence if, and only if, it is of the opinion that a different sentence should have been imposed. Conversely, if this Court is not of the opinion that a different sentence should have been imposed, it must dismiss an offender's appeal against sentence.

73 In my opinion, if this Court decides, in the course of an offender's appeal against sentence, that the sentencing Judge has made a material error of law or fact which has affected the sentencing process or the exercise of the sentencing discretion, it is necessary for this Court to determine, afresh and for itself, the appropriate sentence, based on:

which are relevant and may properly be taken into account. If this Court would have imposed a sentence which is different from the sentencing Judge then it will have decided that a different sentence should have been imposed (within s 31(4)(a) of the Criminal Appeals Act), and it may allow the appeal. If this Court allows the appeal, it must set aside the sentence imposed by the sentencing Judge and dispose of the matter in accordance with either par (a) or par (b) of s 31(5). If, however, this Court decides that a different sentence should not have been imposed then it must dismiss the appeal.

74 In the present case, counsel for the parties accepted that if ground 2 was made out then this Court should determine, afresh and for itself, the appropriate sentence, on the basis of:

(a) the material before the learned Judge (except that part of the material, as recorded in the transcript, which concerns his Honour's private communication with the psychiatrist);

(b) the additional material before this Court (except that part of the additional material which concerns the private communication); and

75 I have read and considered the relevant material and submissions. I agree with Pullin JA, for the reasons he gives, that a different sentence should not have been imposed. The appropriate sentence for the appellant is strict security life imprisonment with a minimum term of 22 years before eligibility for parole. That sentence is identical to the sentence which the learned Judge imposed. The appeal should therefore be dismissed.

Sentencing Act 1995(WA)

Law Amendment Act 1985

Administrative Tribunal Act 2004

TEAKLE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 15 (19 January 2007)

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TEAKLE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 15 (19 January 2007)

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