Sentencing Act 1995, s 89, s 98

Sentence Administration Act 1995

1 MALCOLM CJ: In my opinion this application for leave to appeal should be granted but the appeal should be dismissed. I have reached this conclusion for the reasons to be published by Anderson J. I only wish to add one or two comments of my own.

2 The sole issue raised by the appeal against sentence relates to the imposition of the indefinite sentence on top of the finite terms for the various offences for which the aggregate term was imprisonment for 15 years. There is no application for leave to appeal against the aggregate sentence or any of the individual sentences imposed by the learned Judge, or the way in which they were structured. Consequently, there is no occasion for the Court to review the individual sentences or the aggregate term imposed by the learned sentencing Judge. In particular, I wish to make it clear that this Court has not been called upon to consider the adequacy of the sentence of imprisonment for 6 years for the offences which involved a violent kidnapping and rape of a 13 year old girl.

3 As Anderson J has rightly pointed out, the question to be decided in this case is not whether the members of this Court may have exercised the sentencing discretion differently, but whether the learned sentencing Judge erred in the exercise of his discretion: Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007. In my opinion, it has not been demonstrated that there was any such error.

4 WALLWORK J: The nature of the appellant's attacks on women and his attitude towards women, in my view bring his case within the description of a "very exceptional case" in the sense discussed by the Justices of the High Court in Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611. This enlivened the learned Judge's discretion to order an indefinite sentence. I agree with Anderson J's reasons and to the orders proposed by his Honour.

5 ANDERSON J: The applicant was presented in the District Court on an indictment containing 10 counts. These were counts of aggravated sexual penetration, aggravated indecent assault, indecent assault, kidnapping, deprivation of liberty, burglary and stealing a motor vehicle. The 10 offences involved six different victims. The sexual offences were committed against four different female complainants aged between 13 and 41 years. They occurred over a period of about a year, in the Mandurah area.

6 The applicant pleaded guilty to each of these counts. The facts stated to the learned sentencing Judge were as follows:

Counts 1, 2 and 3 (Indecent assault, deprivation of liberty)

7 At about 11.15 am on 18 December 1997, the complainant S, who was then aged 17 years, was walking along a footpath adjacent to Old Coast Road, Halls Head on her way to a friend's house in Falcon. The applicant approached her from behind riding a bicycle, stopped the bicycle next to the complainant and grabbed her with his right arm, pulling her towards him. He put his left hand under her top and bra and fondled her breasts. His right hand was touching the complainant's bottom and he said to her "You have a nice arse". He then tried to kiss the complainant. The complainant fought him off and the applicant appeared to ride away. After riding a short distance, he turned his bicycle around and rode toward the complainant again. He then got off the bicycle and threw it into nearby bushes. The complainant attempted to run away, but the applicant pursued her, grabbed her and threw her violently into the bushes. The complainant screamed and struggled, but the applicant managed to hold her down by sitting on her. The applicant overpowered the complainant, telling her that he intended to "make love" to her and he forced her to remove her pants and underwear. He then rubbed the complainant's exposed genitals and forced his hand under her bra and rubbed her breasts. It was evident to him that the complainant was menstruating and he therefore stopped his attack and demanded money. He was not given any money and rode away.

8 At about 11.30 am on 2 January 1998, the applicant was riding his bicycle along the cycling path beside Old Coast Road when he commenced to follow the bicycle being ridden by the complainant M. When the complainant noticed the applicant following her, she accelerated, but so did he and when he caught up with her he placed both his hands on the complainant's bottom and squeezed. He then lost control of his bicycle and the complainant was able to get away.

9 On 24 February 1998, the complainant had parked and locked her motor vehicle, valued at about $1,000, on Mandurah Terrace. The applicant managed to open the locked door, using some form of key or lock-picking device. He drove the vehicle away and used it for a number of days before abandoning it.

Counts 6 and 7 (Kidnapping, aggravated sexual penetration)

10 In the evening of 24 February 1998, the applicant, who was then driving the vehicle which he had just stolen, saw the complainant L walking north along Fremantle Road, between Madora Bay and the Singleton turn-off. He drove past her and parked the car in an information bay a short distance ahead. As the complainant walked past, the applicant offered her a lift to Singleton, which she accepted. The complainant was then aged 13 years. The applicant drove past the Singleton turn-off, which alarmed the complainant and she began to question the applicant. He responded by punching her once to the face and told the complainant that he hated women. The complainant commenced to cry. The applicant drove to a secluded area in Baldivis where he got the complainant to remove her clothes. He then placed the complainant against the boot of the car and forced his erect penis into her vagina. The complainant was terrified and crying and, after about a minute, the applicant stopped and told the complainant that he might leave her "in the bushes and come and see you every night". The applicant allowed the complainant to get dressed and he then drove her back towards Singleton and dropped her near the Singleton service station.

Counts 8 and 9 (Aggravated indecent assault, kidnapping)

11 At about 5 pm on 15 October 1998, the complainant J was walking along a limestone track to the beach near Dawesville. The applicant followed her and grabbed her from behind and spun her around and tore her shirt and bra from her body. He told her he intended to have sexual intercourse with her. He then punched the complainant twice to the face, grabbed her by the hair and banged her head against the ground. The complainant resisted and pleaded with the applicant, but he told her he would kill her if she did not give in to him. The applicant then dragged the complainant back to his vehicle and forced her into the front passenger seat. She continued to struggle and the applicant told her he had a gun in the back of the car and would kill her if she did not comply with his demands. She continued to attempt to escape from the vehicle and he detained her by gripping her lower clothing. After they had driven about a kilometre, he released his grip and the complainant opened the door and jumped from the vehicle sustaining injuries. Two women who were nearby came to her aid and the applicant drove off. The complainant received lacerations to several parts of her body and head which required medical attention.

12 Approximately an hour after committing the offences the subject of counts 8 and 9, the applicant drove to an address in Falcon with the intention of entering the house and committing an offence. The residents of the house were known to him. The applicant went to the rear of the house and forced open a rear window, climbed into the house and searched it, stealing $60 in money and a black, lace lingerie top valued at $30 from a bedroom drawer.

13 The learned sentencing Judge saw two victim impact statements, one by the complainant L and the other by the complainant J. It is obvious that both complainants are gravely traumatised by the applicant's attacks on them.

14 The applicant has a substantial history of offending. In 1990, at the age of 17, he was placed on a good behaviour bond in the Children's Court for 6 months in respect of two separate offences, one of possessing an offensive weapon and the other of stealing. In that year, he was dealt with for two other offences of stealing, one offence of being on a curtilage without lawful excuse and one offence of unauthorised use of a bicycle. In 1993, he was placed on probation for 2 years for stealing a motor vehicle and, in 1994, he was placed on probation for 15 months for driving without a licence. In January 1995, he was sentenced to three concurrent terms of 16 months' imprisonment in respect of three charges of wilfully lighting fires. The following month, he received a sentence of 6 months' imprisonment for breach of the probation order which had been made in respect to the 1993 car theft offence and he was sentenced to a further 15 months' imprisonment for an offence of burglary and he received four sentences each of 6 months' imprisonment in respect to four offences of motor vehicle theft. In December 1996, he received a sentence of 4 months' imprisonment for driving without a licence and, in 1997, he received a further sentence of 3 months' imprisonment for driving without a licence.

15 In addition to the convictions enumerated above, the applicant received a number of other convictions for a variety of offences which did not attract prison sentences.

16 It is notable that, on 26 March 1998, a little more than a month after committing the offences the subject of counts 5, 6 and 7 on the indictment, the applicant was presented in the Perth Court of Petty Sessions on a charge of breaching conditions of bail and stealing. The circumstances under which he came to be on bail do not appear from the papers. For each of the offences of breaching bail and stealing, he received a sentence of 3 months' imprisonment. The learned sentencing Judge was informed by the Crown prosecutor that the applicant was, in fact, in custody between 26 March 1998 and 8 September 1998. That statement was not contested by counsel for the applicant. It may be inferred that the period of custody resulted from a revocation of bail. It is of some significance that the offences the subject of counts 8, 9 and 10 were committed only a little more than a month after the applicant was released from custody on 8 September 1998.

17 It should be mentioned that in the pre-sentence report which was obtained by the learned sentencing Judge, the following paragraph appears in relation to this episode:

"Mr Thompson was again released to parole supervision (8/9/1998). File notes indicate that Mr Thompson reported regularly, albeit briefly, however when routine contact was made with his supervising officer on the second occasion of reporting, he requested that he be returned to prison. Mr Thompson was provided with contact details of several agencies involved in crisis counselling. The matter was referred to management who required Mr Thompson to put his request in writing. When this requirement was put to Mr Thompson (18/9/1998) he indicated that he had changed his mind. Very shortly thereafter he was charged with the matters for which he currently faces sentencing."

18 From this it appears that the offences the subject of counts 8, 9 and 10 were committed whilst the applicant was on parole.

19 It should also be mentioned that the vehicle which was being driven by the applicant at the time of the commission of the offences the subject of counts 8, 9 and 10 had been stolen by him. He was apprehended very shortly after committing the offence the subject of count 10 and appeared in the Court of Petty Sessions at Mandurah a few days later on 20 October 1998 when he was dealt with for the theft of the motor vehicle and for stealing petrol. He received sentences of 9 months' imprisonment and 3 months' imprisonment respectively, so that at the time of sentencing in January 1999 he was in custody. It would appear that he was also in custody on remand at that time with respect to a charge of wilful murder, for which he is due to be tried early next year.

20 After the applicant had been arraigned on 27 January 1999, the learned sentencing Judge heard extensive submissions and remanded the applicant in custody until 26 February for the purpose of the preparation of a pre-sentence report. A very comprehensive pre-sentence report was prepared by a forensic psychologist contracted to the sex offender treatment unit in the Ministry of Justice. On 26 February, his Honour heard further submissions in the light of the pre-sentence report and he remanded the applicant until 4 March, for sentence.

21 Both at the time of arraignment and on 26 February counsel for the Crown submitted that it was a case in which an indefinite sentence ought to be imposed, pursuant to s 98 of the Sentencing Act 1995.

22 In respect of counts 1, 2 and 3, which were two counts of indecent assault each attracting a maximum penalty of 5 years' imprisonment and one count of deprivation of liberty attracting a maximum penalty of 10 years' imprisonment, his Honour imposed a sentence of 3 years' imprisonment. These sentences were allowed to run concurrently. In respect to count 4 which was a charge of indecent assault attracting a maximum penalty of 5 years' imprisonment, the sentence was 3 years to be served cumulatively on the sentences imposed with respect to counts 1, 2 and 3. As to count 5, the charge of motor vehicle theft attracting a maximum penalty of 7 years' imprisonment, his Honour imposed a term of 1 year to run concurrently with the sentences imposed in respect of all other counts.

23 As to counts 6 and 7, which were charges of kidnapping the complainant L and aggravated sexual penetration of L, each attracting a maximum penalty of 20 years' imprisonment, his Honour imposed 6-year terms to run concurrently with each other, but cumulative upon all other sentences. As to counts 8 and 9, which were charges of aggravated indecent assault upon the complainant J and kidnapping of the complainant J, his Honour imposed two cumulative terms of 3 years' imprisonment. With respect to count 10, the charge of burglary, attracting a maximum penalty of 18 years' imprisonment, his Honour imposed a sentence of 1 year and allowed it to run concurrently with all other sentences. The aggregate custodial term was therefore 15 years' imprisonment.

24 The learned sentencing Judge then dealt with the matters of eligibility for parole and the making of an order for indefinite imprisonment. He did so in the following terms:

"I now turn to the question of eligibility for parole, pursuant to s 89 of the Sentencing Act. I remind myself that I must consider the seriousness and nature of the offences and the circumstances of their commission, as well as the antecedents of the offender, as well as the circumstances relevant to the offender which might be relevant to him at the time he would be eligible for release if any eligibility order for parole was made.

In my view, the seriousness and nature of the offences and the circumstances of their commission, together with the offender's antecedents, completely dwarf and overshadow any of the circumstances relevant which might be relevant at the time he would be eligible for release on parole. I decline to make an order for eligibility. I now turn to the issue of indefinite imprisonment and I turn to section 98 of the Sentencing Act. On the evidence before me I will make the finding and do make the finding that upon his release from custody in respect of the nominal sentence, the offender would be a danger to part of society, namely to females because of these factors. Without question, at this time he is a danger to parts of society, namely females. He bears a grudge against women generally and one of his answers in the video record of interview - he says, 'I would like to root someone else', when explaining why he acted as he did.

Dealing with the exceptional seriousness of the offence, we are not talking about one offence, we are talking about a continued pattern of very similar conduct when the offender preyed upon lone women walking during daylight hours. I am also persuaded, on the balance of probabilities, that there is a strong risk that the offender will commit other indictable offences of a similar nature. The history of his offending stands against him here.

In short, the nature of the offending is such that I have the firm finding that on the evidence before me I am of the view and I make the finding that the offender would be a danger to society at the date of his predicted release and that finding is so firm as to overwhelm all of the principles, all of the other more intangible considerations referred to in the Sentencing Act. I am therefore prepared to make a declaration ordering the offender to be imprisoned indefinitely. I turn to a reference in the matter of Jones, whereby Murray J said:

'Because of my view that the section is worded in such a way as to convey that the power it seeks to confer is of an exceptional character, it would seem to me to follow that the probability of danger would need to be demonstrated by clear evidence of the risk that the offender will commit further offences upon release. Further, it is clear that the anticipated offences are themselves to be of a degree of seriousness that they are to be indictable offences.'

I am conscious of all of these issues and of the necessity to regard the probability of danger as of considerable power or cogency and I do so regard it."

25 The notice of appeal filed on behalf of the applicant seeks leave to appeal against his sentences on the following grounds:

"(a) the Learned Trial Judge wrongly refused to consider parole;

(b) the Learned Trial Judge erred in law, or miscarried an exercise of his discretion, by ordering that I be imprisoned for an indefinite term."

26 It will be seen therefore that no complaint is made concerning the length of the head sentence of 15 years, nor as to the sentences imposed with respect to any of the individual offences, nor as to the manner in which the overall sentence was structured so as to produce the aggregate term. Neither is there any appeal on behalf of the Crown against the inadequacy of any of the sentences. The Court is therefore not concerned to review either the individual sentences or their aggregate. In particular, the Court is not concerned to consider whether a sentence to 6 years' imprisonment for what amounts to a violent kidnapping and rape of a 13-year-old girl is adequate.

27 On behalf of the applicant, it was submitted that the learned sentencing Judge misdirected himself when he said that "the seriousness and nature of the offences and the circumstances of their commission, together with the offender's antecedents, completely dwarf and overshadow any of the circumstances ... which might be relevant at the time he would be eligible for release on parole". Counsel for the applicant, Mr Mazza, submitted, in effect, that the seriousness and nature of the offences and the circumstances of their commission can never "completely dwarf and overshadow" those matters relevant to a consideration whether a convicted person should be granted eligibility for parole because it would mean that in every case of serious offending eligibility for parole should be denied.

28 Of course, it would not be correct to allow the seriousness and nature of the offending to displace all other considerations in determining eligibility for parole. Serious offences are usually met with prison terms. Generally speaking, the more serious the offence, the longer the term. One of the factors operating in favour of the grant of eligibility for parole is the length of time to be spent in prison. In Thompson v The Queen (1992) 8 WAR 387 at 396 the Court said:

"The severity of a sentence is relevant to the question of eligibility for parole ... "

29 The point is that the more serious the crime and hence the longer the sentence, the more imperative may be the need to consider the question whether the offender is likely to benefit from serving a portion of his or her sentence under supervision in the community. As has been pointed out many times in this Court, it is also relevant in the context of s 89(2)(d) of the Act to make a prognosis and the longer the custodial term, the more difficult it is to make a prognosis adverse to the offender as regards his or her rehabilitation.

30 However, the matters adverted to by his Honour were not confined only to the seriousness and nature of the offences themselves. His Honour also adverted to the circumstances of the commission of the offences; and to the applicant's antecedents. In this case, the past history of breaching bail conditions (twice) and conditions of probation (twice), and the fact that the offences the subject of counts 8, 9 and 10 were committed shortly after his release when the applicant was on parole clearly do outweigh the factors that might otherwise have supported the making of a parole order. In my opinion, it is impossible to say that the discretion whether an order for eligibility for parole should have been made in this case was not properly exercised.

31 Section 98 of the Sentencing Act 1995, which empowers a superior court to order an offender to be imprisoned indefinitely, is in the following terms:

(a) sentences an offender for an indictable offence to a term of imprisonment;

(c) does not make a parole eligibility order under Part 13 in respect of that term,

it may in addition to imposing the term of imprisonment for the offence (the 'nominal sentence'), order the offender to be imprisoned indefinitely.

(2) Indefinite imprisonment must not be ordered unless the court is satisfied on the balance of probabilities that when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society, or a part of it, because of one or more of these factors:

(b) the risk that the offender will commit other indictable offences;

(c) the character of the offender and in particular -

(i) any psychological, psychiatric or medical condition affecting the offender;

(ii) the number and seriousness of other offences of which the offender has been convicted;

(3) In deciding whether an offender is a danger to society, or a part of it, the court -

(a) is not bound by section 6 but is bound by any guidelines on the imposition of indefinite imprisonment in a guideline judgment given under section 143; and

(b) may have regard to such evidence as it thinks fit."

32 Of these provisions, Kennedy J said, in McGarry v The Queen [1999] WASCA 276:

"It is well established that a sentence of indefinite imprisonment is an exceptional sentence, and one which is not lightly to be imposed. A prisoner does not know at the commencement of his sentence how long the term which he will be required to serve will be. His or her ultimate release is dependent upon an executive act, the making of a parole order under Pt 3 of the Sentence Administration Act 1995. Such an order may be made at any time after the sentence of indefinite imprisonment begins - see Sentencing Act, s 101. Under s 20 of the Sentence Administration Act, the Parole Board is required to give the Minister a written report about a prisoner serving an indefinite term one year after the day on which the sentence began, and at three yearly intervals thereafter. By s 14, the Minister may at any time request the Parole Board to report about a person sentenced to indefinite imprisonment and it must give the Minister such a report whenever it is requested to do so by the Minister, and whenever it thinks there are special circumstances which justify its doing so."

33 The High Court has said that the exercise of the power to order an indefinite sentence should be reserved for very exceptional cases due to the stark and extraordinary nature of this form of punishment, the term of which is terminable by executive, not by judicial, decision. Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611, especially at 618 - 619; Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007; Thompson v The Queen [1999] HCA 43. See also R v Moffatt [1998] 2 VR 229. However, it is a discretionary power and the question is whether it was open to his Honour to make the order in this case.

34 In my view, it was open to the learned sentencing Judge to be satisfied on the balance of probabilities that the applicant presented a danger to society within the meaning of s 98(2). The offences for which he was sentenced included offences which were of exceptional seriousness. They included aggressive and violent sexual attacks on lone women in broad daylight. There was a distinct element of cruelty in his treatment of his victims over and above the inherent cruelty involved in a sexual attack. The conduct of the applicant had extended over a period of nearly a year. It is not in his favour that for part of that time he was in custody. The fact that he committed the last group of offences a few weeks after being released on parole tells against him. The brazen, random and callous nature of his attacks point to the conclusion that he is a danger to society. Underlying his offending is a state of mind which fortifies that conclusion. There is evidence that the applicant has a grudge against women. He was quite ready to hurt his victims. Two of them who pleaded for mercy and to be released were punched in the face. He gave little indication of shame or remorse during interview for the pre-sentence report, tending to deny guilt with respect to the majority of the sexual offences to which he had pleaded guilty and claiming to have been "beaten by the police" into making the confessions. The forensic psychologist reported a "severe lack of accountability for his actions" and a "tendency to distort his cognitive processes to justify his behaviour". The pre-sentence report reveals that the applicant had the practice of making obscene telephone calls and has a range of paraphiliac interests, including sadomasochistic activities "which he is attracted to perpetrating upon others for his own satisfaction". The conclusion was that "without the benefit of effective participation in an intensive treatment option, Mr Thompson's risk to the community remains high".

35 In my opinion, the applicant's antecedents and the nature and seriousness of the offences, the length of time over which they were perpetrated and the pre-sentence report before the learned sentencing Judge, left it open to his Honour to conclude that the applicant would be a constant and continuing danger upon his release. This is not to say that there was no material which gave any hope for the future. There is reference in the pre-sentence report to some aspects of the applicant's behaviour, including his frank acknowledgment of the extent of his deviant, dysfunctional and paraphiliac interests, which gives some hope for a positive outcome should the applicant elect to participate in what the forensic psychologist described as "therapeutic intervention" (pre-sentence report page 7). It must also be acknowledged that the applicant pleaded guilty under the fast-track system. When apprehended shortly after committing the offences the subject of counts 8, 9 and 10 in the indictment, the applicant made full admissions with respect to the offences charged in counts 8 and 9 and volunteered that he had committed the other offences set out in the indictment. He co-operated in assisting the police by taking them to the various crime scenes. The relevance of this conduct to the question whether an indefinite sentence ought to be imposed can only be that it may be interpreted as a sign of remorse and a desire for rehabilitation. The trouble is that there are also contraindications of remorse. There is evidence which gives the clear impression that the applicant had an uncaring attitude in respect to the commission of the offences and a complete disregard for the consequences and it is quite possible that this was simply carried through to confession so that the confessional behaviour may not in truth be a reliable sign of remorse. I think it was open to his Honour to take that view. There is the matter already mentioned, namely, the applicant's tendency to retract the confessions made with respect to the sexual offences and attribute those confessions to police beatings. In the pre-sentence report it is noted that the applicant acknowledged making several serious attempts upon his own life and to persistently engaging in suicidal ideation because he had "had enough of life". This does, I think, diminish the significance, in terms of remorse and rehabilitation, which is usually attached to confessions and co-operation.

36 In Lowndes the High Court reminded courts of criminal appeal of the importance of the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court is of a different opinion. At p 1010 the High Court said:

"Sections 89 and 98 of the [Sentencing] Act ... involve the making of discretionary judgments.

The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established ... Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. House v The King [1936] HCA 40; (1936) 55 CLR 499. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice"

37 The question is not whether we are of the same opinion as the learned sentencing Judge as to his disposition of the matter, but whether his Honour erred in the exercise of his discretion and I am not persuaded that he did.

38 I would allow the application for leave to appeal, but dismiss the appeal.