SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree with White J that the appeal against conviction should be dismissed for the reasons she has given.

2. It was very regrettable that an apparently experienced police officer could jeopardise the fairness of a lengthy and consequently costly murder trial by referring to facts from which an inference could possibly be drawn that the appellant had been convicted of a criminal offence resulting in a substantial term of imprisonment.

3. Mr Robson gave evidence that he had worked with the appellant on a daily basis from 1989 to 1997. On 22 April, the day the deceased disappeared, he went to his son's kindergarten for an interview. He left the kindergarten at about 3.30pm and travelled down Robinson Street (a street through which the deceased child usually walked on her way home from school). He there saw the appellant walking along the footpath in a "whitish" shirt. (Eye-witnesses said the man who attacked a young school girl nearby at about that time was wearing a white shirt.) At approximately 8.10pm that evening Mr Robson saw a news flash on television that a child was missing in that area. Later that night, when he was driving in that area, he saw police, stopped and passed on that information.

4. Ten days later, Detective Senior Constable Crouch gave the following evidence:

"We were at the intersection of Robinson and Dean Street when a correctional centre utility drove into that area ---

…

That vehicle was driven by Robson.  I spoke to Robson at the scene and he indicated things to me." 

5. Detective Crouch then gave evidence of lengthy unrelated details of the investigation. There was no suggestion the inadmissible evidence was anything other than inadvertence on the police officer's part.

6. It is impossible to know whether or not the jury drew from that combined evidence the inference that the appellant had been convicted of an offence for which he had served a substantial period of imprisonment. It seems certain that no reference was made to the inadmissible evidence in counsels' addresses or the judge's summing up. The jury did not request any redirections; there is nothing in the transcript to suggest the jury drew such an inference or placed any weight on the inadmissible evidence. There is a significant possibility that that inference was not drawn although the possibility that it was drawn cannot be excluded.

7. The learned primary judge gave careful and detailed reasons in exercising his discretion not to grant a mis-trial under s 60(1) Jury Act 1995.  The appellant has not satisfied me of any error on the part of the judge.

8. In any case, the appellant's appeal is not from the trial judge's exercise of discretion, but involves a consideration of whether on the whole of the evidence there has been a substantial miscarriage of justice: see the comments of Gibbs J (as he then was) with whom Mason J (as he then was) and Jacobs J agreed in Maric v R.^[1]

9. As White J has demonstrated, the prosecution case was very convincing.

10. I am conscious of the fact that this case involved the emotive and sensational murder of an innocent nine year old girl on her way home from school. There was a strong probability that she had been sexually abused. The case was therefore one where there was a real danger that feelings of prejudice would be aroused: see the comments of Gibbs J (as he then was) in De Jesus v The Queen.^[2]  The prosecution should have taken particular care to ensure that only properly admissible evidence was led.

11. The inadmissible evidence raised no more than a possibility of an inference being drawn by the jury that the appellant had been previously convicted; the inadmissible evidence was not highlighted and did not become an issue in the trial. I am not persuaded that this is a case where it is inevitable that the verdict was intrinsically flawed by the inadmissible evidence requiring a re-trial: cf Wilde v The Queen.^[3]  Additionally, the admissible prosecution evidence upon which the jury's attention was focussed in addresses and the summing up was overwhelming.  I am satisfied on the whole of the evidence that there has been no substantial miscarriage of justice.  The appeal should be dismissed.

12. I also agree with White J that, for the reasons she has given, the application for leave to appeal against sentence should be refused.

13. WHITE J:  The appellant was found guilty on 7 September 2000 of the murder of a  nine year old girl at Rockhampton on 22 April 1999.  He was sentenced to an indefinite term of imprisonment with a nominal life sentence on 9 November 2000.

14. He appeals against his conviction and seeks leave to appeal against the imposition of an indefinite term of imprisonment.

Appeal against conviction

15. The ground of appeal is a narrow one. The appellant complains that the learned trial judge erred in not discharging the jury upon the application of his counsel after certain evidence was given by one of the police witnesses, a Detective Senior Constable John Crouch. In the course of the trial Detective Crouch gave evidence that in the early evening of 22 April 1999 he and another investigating detective were leaving the area where the child had last been seen.  He was then asked by the prosecutor

“Okay.  Now, at some time around 8.30 did you see a utility which was driven by a man who you came to know as being Robson; is that right?-- Yes.  At about 8.30, Detective Senior Sergeant Trenaman and I were leaving the command centre.  We were at the intersection of Robinson and Dean Street when a correctional centre utility drove into that area-----

No, I want to talk about Mr Robson?-- Yep.

If we can go to Mr Robson, did Mr Robson speak to you at the scene?-- That vehicle was driven by Robson.  I spoke to Robson at the scene and he indicated things to me.” R493

16. Defence counsel properly waited until the prosecutor had completed Detective Crouch’s evidence-in-chief before raising with the trial judge, in the absence of the jury, that Detective Crouch had introduced a piece of evidence which might cause the jury to suspect that the accused was a person who had served a term of imprisonment.

17. Detective Crouch gave his evidence on 25 August 2000. On 15 August Benjamin John Robson had been called by the prosecution as a witness who identified the accused as a person seen near the place and at the time when the child disappeared.

18. In response to questions from the prosecutor Mr Robson said that he had lived in Rockhampton for approximately ten years and knew the accused. The following exchange occurred at R 106.

“All right.   And you, in fact, worked with the accused for about - how many years?-- Approximately around about eight.

They were - from when to when?-- Approximately around 1989 to 1996 or 7, somewhere around there, approximately.

And in that period of time, were you seeing him virtually everyday at work?-- Almost, yes.

Almost?-- Almost everyday.

You work, what - in that year, what, you were working five days a week?-- Back then we were working roughly five day weeks, yes, eight hour days.

Now, after you stopped working with him, did you still continue to see him in various places around Rockhampton?-- Yes.”

Mr Robson said that he had been for a parent/teacher interview at the kindergarten and was leaving at approximately 3.20 p.m.  He said that he was in “a work vehicle”, R 107, and as he travelled away from the kindergarten down Robinson Street towards Dean Street he noticed school children in uniform and an adult whom he recognised as the accused.  When he was almost level with him he pointed his finger at him in a gesture of acknowledgment which was returned.

19. Mr Robson gave evidence that he had seen a news flash on the television at 8.10 p.m.  that evening that a child was missing in the Robinson/Dean Streets area.   Shortly after, when he was driving down Dean Street he saw  police and that was the occasion about which Detective Crouch gave evidence.

20. Mr Robson was recalled to give brief telephone evidence on 21 August on a matter immaterial to this issue.

21. When the concern about Detective Crouch’s evidence was raised the prosecutor indicated that the witness had not been specifically told by him not to mention Mr Robson’s employment.  He said that he expected that it was understood.  There was no evidence to support any inference that the witness deliberately introduced the potentially prejudicial evidence.  The Court adjourned on Friday, 25 August 2000 at lunchtime and on Monday his Honour refused the application to discharge the jury and published extensive reasons.

22. Counsel for the accused had submitted that there was a real risk that the jury would infer that the accused had served a lengthy term of imprisonment by linking Mr Robson’s evidence that he had worked daily with the accused for about eight years and the evidence of Detective Crouch that he had seen Robson on the evening of 22 April 1999 driving “a correctional centre utility”.  This, it was submitted, might establish that the accused and Mr Robson had had a relationship of prisoner and prison officer.  The potential for harm was said to be magnified because the evidence was given by one whom the jury would regard as an experienced police officer.

23. The prosecution case was described by the learned trial judge in his reasons as “consisting of a number of strands of disparate evidence” of a circumstantial kind together with inferences which the jury were invited to draw from numerous conversations between the accused with the police and with a person co-operating with the police who occupied the same cell as the accused.

24. The child was attacked in an allotment on the corner of Robinson and Dean Streets, Rockhampton as she walked home from school wearing her school uniform. She was placed in the boot of a car driven by her attacker and taken away. On 6 May 1999 the appellant took police to bushland outside Rockhampton where her partially decomposed body was found.  By then decomposition had made it impossible to identify the cause of death or whether she had been sexually assaulted.  The advanced state of decomposition in her throat area was said to be consistent with her throat having been cut.

25. The attack was witnessed by the occupants of a house across the street from the allotment. The woman saw the entire sequence of events. Her husband and son saw various parts of it. A man, whom they had seen the previous day and shortly before the attack as he walked past their house, was seen to come up behind a young girl in a school uniform, strike her from behind, drop down to an area where she fell, move up and down for a short period, remove his shirt, throw her back pack away, move her a short distance, run off the allotment and across the street down from their house and drive a red car onto the allotment. He was seen to put something into the boot of the car and drive off.

26. Shortly before the attack the appellant and his girlfriend had been visiting an acquaintance, Fry, at her home which was only a few minutes drive from the allotment where the attack took place. He left there alone at about 3.10 p.m. He was then dressed in a white shirt, yellow shorts and wore no shoes. He returned to pick up his girlfriend about two hours later.

27. The appellant’s landlord gave evidence that when he returned to the units where he and the appellant lived at about 4.30 p.m. on 22 April he saw the appellant in the garage leaning over the washtubs. He next saw the appellant at about 6.30 p.m. that evening when he drove his car into the yard at the units and started washing dirt from it. By this time it was dark.

28. The appellant had been photographed by the Rockhampton Court security camera earlier in the afternoon of 22 April at the entrance to the Courthouse. He was seen to be dressed in shorts and t-shirt and wearing no shoes. The witnesses to the attack described similar clothing on the attacker.

29. The appellant’s girlfriend, described by the learned trial judge as being of limited intellectual capacity, gave evidence which could not be said to be altogether satisfactory, that after leaving Ms Fry’s house she and the appellant travelled to an area near the river. She remained in the car and saw him pick up something from the boot of the car that looked like a doll with blonde hair wearing a green uniform which he carried, like a baby, with both arms out in front. She said the appellant returned to the car without the “doll”.

30. A red car matching the description of the appellant’s car was seen leaving the allotment where the attack had taken place being driven very fast at about the time of the attack. The appellant was identified as the driver in various sightings in the late afternoon of 22 April. Tyre prints found at the entrance to the allotment where the car had been seen were consistent with having been made by the same type of tyres as were on the appellant’s car. Footprints consistent with having been made by the appellants feet, including some peculiar features, were found on the track in the allotment in circumstances where the jury was invited to conclude that the footprints were left by the attacker as he ran off to collect his car.

31. The appellant was seen walking along the footpath beside the allotment in the direction of the murdered child shortly before the attack. He was positively identified by one schoolgirl and another thought that a photo of the appellant looked like the man she had seen. Mr Robson had seen the appellant walking along the footpath near the allotment at about the time of the attack.

32. Blood with the same DNA profile as the deceased was found on the tail light assembly inside the appellant’s car. A shoe lace of the same type as one from the child’s shoes was also found in the boot. Hairs found in the boot of the appellant’s car gave a full DNA profile matching the child’s DNA profile which, according to the forensic scientist, was exclusive to the child.

33. Whilst he was in custody the appellant asked a man who was in the cell with him to get rid of a knife in the peg box near the washtubs in his garage. This conversation was recorded. The appellant described the knife and said that he wanted it to disappear because if he was caught with it he would be “gone”. Blood was found on the knife which gave a full DNA profile and which matched that of the deceased child.

34. The appellant gave a number of interviews to the police in the period between 22 April and 9 May.  He did not directly admit that he was the murderer.  He said that his mind was in a haze.  He sought to set up an alibi to the effect that he had gone to a wreckers yard to get some parts in the afternoon of 22 April and had then returned to pick up his girlfriend at Ms Fry’s home.  He maintained that a mate of his called “Squeaky” Uren had driven the car whilst he was at the wreckers.  Mr Uren was called and gave evidence that he was not in Rockhampton at the time.  A number of workers from the wreckers were called and none were able to recall seeing the appellant there on the day of the attack. 

35. On 5 May he asked the interviewing police that if the body was found “could I go down on manslaughter?”. He continued to claim black outs and having flash backs. On 6 May he told the police that he knew where he thought they might be able to find the body and he guided them to an isolated area outside Rockhampton in bushland off the Yeppoon Road. Her body was found in that area.

36. It was a strong prosecution case. The appellant neither gave nor called evidence.

37. It is well established, at least since Maric v R (1978) 20 ALR 513 per Gibbs J at 520, that when a trial judge has refused an application to discharge a jury and the accused has been convicted, the appeal is not against the exercise of the trial judge’s discretion not to discharge the jury but against the conviction.  It is for an appellate court to decide whether, on a consideration of the whole of the evidence, there has been a miscarriage of justice.

38. As Mason CJ observed in R v Glennon (1992) 173 CLR 592 at 604

“Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law”.

Although Glennon was a case about pre-trial publicity, Toohey J in Webb and  Hay v R (1993-4) 181 CLR 41 at 90 thought the observation apposite to the question whether an accused had suffered a substantial miscarriage of justice by reason of the inadvertent disclosure that she had been in prison.

39. The majority (Toohey, Gaudron, Gummow and Kirby JJ) in Crofts v The Queen (1996) 186 CLR 427 noted at p 440 that no rigid rule can be adopted to govern decisions on an application to discharge a jury for a potentially prejudicial event that occurs during the trial.  Their Honours concluded that much

“… depends upon the seriousness of the occurrence in the context of the contested issues;  the stage at which the mishap occurs;  the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. … much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.” pp 440 - 1.

40. In R v Knape [1965] VR 469, a decision impliedly approved by the High Court in Webb and Hay, the accused had conducted his own defence being careful to ensure that his prior convictions would not come out.  In the course of the evidence-in-chief of a witness called by the accused in answer to the question how long had he known the accused, the witness said at p 470  “About 1960.  I met him at Bendigo Training Prison”.  The Full Court concluded that by that unresponsive answer “the linchpin of his whole defence was knocked away”, p 471.  There was no suggestion that the accused had deliberately arranged for the damaging evidence to be given to engineer a mistrial.  The trial judge declined to discharge the jury.  On appeal the respondent submitted that no substantial miscarriage of justice had occurred since the prosecution case was very strong and conviction was inevitable, irrespective of evidence of the accused’s bad character.

41. In the course of his reasons Winneke CJ, who delivered the judgment of the Court, observed at p 472

“The law has long recognised the prejudicial effect of evidence of prior conviction and bad character, and that such evidence is calculated to render a fair trial improbable.  Thus as a matter of high policy evidence of such matters, apart from the well-known exceptions, is rigidly excluded. … The introduction of this evidence, therefore, cannot be regarded as some minor irregularity.  The question is whether in the circumstances of this case we are satisfied that no substantial miscarriage has actually occurred.”

  His Honour concluded at p 473 that

“An examination of the authorities leads us to the view that unless it can be said, upon the evidence, that the irregular disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty, the trial judge should exercise his discretion in favour of the accused.”

Having regard to the prejudicial nature of the objectionable disclosure and to the fact that it destroyed the underlying basis of the defence, the court concluded that it was impossible to say that the jury would inevitably, or without doubt, have convicted if the inadmissible evidence had not been given.

42. Both Webb and Hay and Knape were referred to extensively by the learned trial judge.  He concluded that it was not then apparent that the defence case would turn on issues of credit and that the inadmissible evidence might prove irrelevant.  He invited defence counsel to renew his application as appropriate. No evidence was adduced on behalf of or by the accused and no further application was made. 

43. Mr J Hunter, for the appellant, submitted, on the authority of Wilde v The Queen (19987-88) 164 CLR 365 at 375 per Deane J and 377-8, that where a trial is intrinsically flawed there is no place for the operation of the proviso and that the introduction of inadmissible evidence which invited an inference that the accused had been in prison for a lengthy period and therefore was of bad character was such a trial.

44. Brennan, Dawson and Toohey JJ in Wilde at pp372-3 said of this argument,

“It is one thing to apply the proviso to prevent the administration of the criminal law from being ‘plunged into outworn technicality’ (the phrase of Barwick CJ in Driscoll v The Queen (1977) 137 CLR 517 at 527); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted.  The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings.  If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice.  Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg v Hilderbrandt (1963) 81 WN (pt 1) (NSW) 143 at 148;  Reg v Henderson [1966] VR 41 at 43;  Reg v Couper (1985) 18 A CRIM R 1 at pp 7-8.”

Their Honours noted that there was no rigid formula to determine what constituted a radical or fundamental error,

“But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence.  In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.”

45. In this case, the learned trial judge did not, correctly in my respectful view, give any warning to the jury about the inadmissible evidence of Detective Crouch either at the time or when he came to give his charge to them and he was not asked to do so. To have done so would only have drawn attention to the inadmissible evidence which may have had no impact on the jury at the time when it was given. There was no direct evidence of the applicant’s former incarceration. There was a real likelihood that the jury did not pick up that on 22 April 1999 Mr Robson was employed as a prison officer. It was then necessary for the jury to make a link between Mr Robson’s evidence that when he “worked” with the appellant for about eight years ending in about 1996 or 1997 he was then a prison officer and the appellant a prisoner. It required them to remember back to evidence given on day 2 (15 August 2000) of the trial and relate it to evidence given on day 9 (25 August 2000). Even had the jury engaged in speculation along those lines there was no actual evidence about prior imprisonment and they were warned in the usual way to decide the case only on the evidence.

46. In my view, this was far from a situation where the verdict of guilty was “intrinsically flawed” by the failure to give the accused a fair trial as described by Deane J in Wilde at p 375.  The learned trial judge was right not to discharge the jury.  There was no miscarriage of justice.  I would dismiss the appeal.

Application for leave to appeal against sentence

47. The applicant seeks leave to appeal against the imposition of an indefinite term of imprisonment. When the applicant was convicted of murder on 7 September 2000 the prosecutor gave notice that he intended to seek an order for an indefinite sentence pursuant to Part 10 of the Penalties and Sentences Act 1992.  On 7 September 2000 the Attorney-General gave written consent to the application as required by s 165(1).  In further compliance with the provisions of the Act the further consideration of the application was adjourned until 9 November 2000.

48. Part 10 of the Penalties and Sentences Act provides for the imposition of a sentence of imprisonment for an indefinite term.  A court may, on its own initiative or on  application made by counsel for the prosecution, instead of imposing a fixed term of imprisonment, impose an indefinite sentence on an offender convicted of a violent offence, s 163(1).  A “violent offence” must be an indictable offence

“(i)that, in fact, involves the use of … violence against a person; and

2. for which an offender may be sentenced to imprisonment for life …”, s 162.

49. Before an indefinite sentence may be imposed a court must be satisfied

“(b)that the offender is a serious danger to the community because of -

1. the offender’s antecedents, character, age, health or mental condition; and

2. the severity of the violent offence; and

3. any special circumstances”, s 163(3).

50. In determining whether the offender is a serious danger to the community a court is required to have regard to

“(a)whether the nature of the offence is exceptional; and

2. the offender’s antecedents, age and character; and

3. any medical, psychiatric, prison or other relevant report in relation to the offender; and

4. the risk of serious physical harm to members of the community if an indefinite sentence were not imposed; and

5. the need to protect members of the community from the risk mentioned in paragraph (d).”

These identified criteria do not limit the factors to which a court may have regard in determining whether to impose an indefinite sentence, s 163(5).

51. The onus is on the prosecution to prove that an offender is a serious danger to the community, s 169. The court may make a finding that an offender is a serious danger to the community only if it is satisfied by acceptable, cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify the finding, s 170.

52. If an indefinite sentence is imposed a court must state in its order the term of imprisonment (the “nominal sentence”) that it would have imposed had it not imposed an indefinite sentence.

53. A court that imposes an indefinite sentence must review the indefinite sentence within six months after the offender has either served fifty percent of the offender’s nominal sentence or, if the offender’s nominal sentence is life imprisonment, after 13 years. Thereafter the court must review the indefinite sentence at intervals of not more than two years from the last review although an offender may apply at any time after the first review, if leave is given, on the ground that there are exceptional circumstances that relate to the offender. As the learned sentencing judge observed, there is something of an anomaly in s 171 inasmuch as the 1997 amendments to the Corrective Services Act 1988 provide that a prisoner serving a sentence of life imprisonment is not eligible to apply for release on parole until after serving 15 years of that life sentence.  Prior to those amendments, a prisoner serving a life sentence could apply for release on parole after 13 years.

54. Upon review the court must order that the indefinite sentence be discharged and sentence the offender under the Penalties and Sentences Act for the violent offence for which the indefinite sentence had been imposed unless it is satisfied that the offender is still a serious danger to the community, s 173(1).  If the court does not make such an order then the indefinite sentence continues in force.  When re-sentencing under s 173(1)(b) after the indefinite term has been discharged, the sentence then imposed is taken to have started on the day that the indefinite sentence was originally imposed and must not be less than the nominal sentence.

55. When the applicant was sentenced he was aged 49 years. He had an extensive criminal history. It included a number of appearances in New South Wales children’s courts for offences of dishonesty. His first lengthy term of imprisonment was imposed on 14 December 1972 when he was sentenced at Sydney Quarter Sessions to five years imprisonment for robbery with a non-parole period of eighteen months. He was released on parole on 19 June 1974. On 11 July 1974, shortly after his release, he raped a woman at Mt Druitt. He followed the victim at close distance as she walked across a bridge. Having caught up he asked her about a particular address. After they had walked a short distance, he put his hand over her mouth and forced her up a dirt track. He told her not to scream and forced her on to the ground. Hoping to avoid further violence, she submitted to rape.

56. On 17 and 20 July 1974 he committed two offences of assault with intent to commit rape. He went to a business and after a brief conversation with the woman operating it, put his hand over her mouth, threatened her and forced her into the back of the shop where he said he wanted sexual intercourse. Although terrified, she managed to delay him until people she knew were coming arrived to collect her. He ran off. He approached the other victim in a street, spoke to her and said abruptly that he wanted sexual intercourse with her. He hit her on the head very hard with his fist and she fell down a slope. Whilst she was trying to get up he pushed her down and lay on top of her. He took her by the throat and threatened to kill her. After he failed to effect penetration he walked with her for about half an hour until she managed to escape and gain refuge in a house nearby.

57. When he was being questioned about the rape at Mt Druitt the applicant told the police of another rape which he had committed in the Sydney Botanical Gardens at about 10 o’clock on the morning of 17 October 1972.  The victim, a French woman, who was visiting Australian with her husband to attend a conference was followed and grabbed from behind.  On this occasion he put his hand over the victim’s mouth and dragged her into the bushes.  She unsuccessfully resisted his efforts to rape her and was beaten about the head causing painful injuries to her face.  She also suffered injuries to her vaginal area from the force of the rape.  He stole the victim’s handbag. 

58. The applicant was sentenced to an effective twenty-one years imprisonment with a minimum term of seven years for this series of offences.

59. The applicant committed an aggravated assault in 1982 when he went to a house on the pretext of being interested in purchasing a car which was for sale. He grabbed the woman who answered his inquiry and when she resisted he explained his conduct on the basis that he was trying to prove a point that it would be easy to get into a house and rape the occupant. He received a sentence of two months imprisonment.

60. On 30 July 1985 the applicant committed rape at Mackay. A young woman was walking on a beach collecting driftwood and became aware of a man catching up with her. She was dragging a piece of wood and he offered help which she declined. Shortly afterwards he grabbed her from behind and put his hand over her mouth. She resisted but he forced her into the mangroves where she was pushed to the ground and raped. He was sentenced to twelve years imprisonment and appears to have served his entire sentence.

61. As his Honour observed there is a striking similarity in the way in which the applicant has committed offences. Lone females in public places were compelled by force and threats to go to a place where the risk of disturbance was reduced and sexual assaults were inflicted on each of them. The same element of a predatory sexual attack on a lone and vulnerable female in a public place was present here. It was, his Honour observed, vastly more aggravated because it led to the brutal murder of a child on her way home from school. His Honour was satisfied on the basis of witness observation, the state of the girl’s clothing when she was found, and the circumstantial evidence concerning the applicant’s belief about the length of time beyond which no forensic samples of any use could be obtained from the girl’s body, that there was a sexual motive in the attack. His Honour accepted that there was evidence that the applicant had cut the child’s throat. He described it as “an exceptionally evil crime” R 1166.

62. His Honour had before him a report from a Dr Fischer, a senior psychiatrist in the New South Wales Prisons Medical Service given in 1974, in which the applicant was described as a “classical psychopath”. Dr Fischer concluded that the applicant had no conscience formation; would use anyone and anything to his advantage without giving much thought to other people’s feelings; that he had little or no impulse control; and that “unfortunately there is no known treatment for this type of psychopathic state” R 1506.

63. His Honour noted that the psychologist who examined the applicant during his imprisonment for the 1985 offence said that the applicant’s long term functioning indicated the presence of a severe personality disorder exacerbated by low-average intelligence and a marked level of institutionalisation. He observed that the applicant had no insight as to the maladaptive nature of his behaviour and that there was nothing in his presentation to suggest anything but a gloomy future and nothing to suggest a reduction in the likelihood of re-offending.

64. He was described by another psychologist who saw him at that time as a borderline psychotic with a history of anti-social and impulsive behaviour with no prospect of change. Dr C Alroe, a psychiatrist who examined the applicant in 1993 in the course of his twelve year sentence for rape, concluded that the applicant was demonstrably not remorseful about his offences because of the callous indifference he exhibited when referring to them.  He concluded that the applicant fitted the criteria of antisocial personality disorder, was prone to recidivism and was untreatable.

65. A ground of complaint about the sentence in the written application is that the court had no up to date psychiatric report. That was entirely a matter for the applicant. As was mentioned by the prosecutor before his Honour, there was no capacity to compel him to submit to psychological or psychiatric testing.

66. His Honour rightly concluded that the offence involved extreme violence on a child. The history of his previous offences, the circumstances of the present offence and the findings of psychiatrists and psychologists who had examined him in the past show him to be a man who is extremely dangerous, especially to females, if he were to be at large in the community. His Honour described the applicant as “a sexual predator of the worst kind” who was devoid of any regard for the rights of women and children to go where they wished free from fear of harm. There was no reason to suppose that there was any prospect of his rehabilitation. His Honour concluded, rightly in my view, that the applicant was at the time of sentence a serious danger to the community and that there was in the future a high risk of serious harm to members of the community if an indeterminate sentence was not imposed. He expressed himself satisfied to a high degree of probability on the basis of evidence which was acceptable and cogent that the applicant was a serious danger to the community and imposed an indefinite sentence and a nominal sentence of life imprisonment.

67. Mr Hunter submitted that, accepting the serious nature of the offence, since the applicant would not be eligible for parole in respect of a life sentence until the age of 63 such a sentence would provide an appropriate level of protection to the community. In reality, Mr Hunter submitted, the applicant would be well into his sixties before his release on parole would be seriously entertained by the authorities. That, in my view, would constitute no protection to the community. There was no evidence to suggest that at age 65 or later the concerns about the applicant would in any way be diminished.

68. In Robert Anthony Wilson CA Nos 200 of 1996 and 333 of 1996 unreported decision of 28 November 1997, Pincus JA, with whom the other members of the Court agreed, said that the question of whether an applicant was a serious danger to the community was to be considered not only at the time of sentencing but also in the future.  So, too, in Fletcher CA No 243 of 1998 unreported decision of  25 September 1998, the Court of Appeal considered that that was the correct interpretation of s 163(3)(b) and (4)(d) of the Penalties and Sentences Act.

69. Against the applicant’s previous criminal history, the facts and circumstances of the offence for which he was being sentenced and the observations of psychologists and psychiatrists who had examined him in the past, in my view there was no other sentence which his Honour could appropriately have imposed upon the applicant.

70. I would refuse the application for leave to appeal against sentence.

71. The orders which I would make are

• dismiss the appeal against conviction; and

• refuse the application for leave to appeal against sentence.

72. DUTNEY J:  I agree with the reasons for judgment of White J and with the orders proposed.