R v Hatten[2007] QCA 46

SUPREME COURT OF QUEENSLAND

1. THE COURT: The applicant for leave to appeal against sentence pleaded guilty to one count of attempted murder. An indefinite sentence of imprisonment was imposed on him, pursuant to s 163(1) of the Penalties and Sentences Act 1992 (Qld), on a finding that he was a “serious danger to the community”. As is required by s 163(2), a nominal sentence was imposed: one of 15 years imprisonment. 

2. Counsel for the applicant on the sentencing hearing did not, on instructions, contest the imposing of an indefinite sentence, confining himself to a submission that because of his client’s abnormal personality and limited intellectual functioning, the nominal sentence should not be greater than 12 years imprisonment. In this Court, however, the applicant challenged the indefinite sentence, but not the nominal term of 15 years. He argued that the learned sentencing judge erred in finding that he was a serious danger to the community, because he failed to give sufficient weight to the protective effect of the finite 15 year term of imprisonment in considering the evidence relating to the risk of future offending.

The indefinite sentence regime

3. Section 163(1) of the Penalties and Sentences Act enables a court to impose an indefinite sentence on an offender convicted of a violent offence. (Attempted murder is a “violent offence”.) Before doing so it must be satisfied that Chapter 7, Part 6 of the Mental Health Act 2000 (Qld) does not apply^[1] and that the offender is a serious danger to the community because of:

“(i) the offender’s antecedents, character, age, health or mental condition; and

  (ii)  the severity of the violent offence; and

  (iii) any special circumstances.”^[2]

The court can make the finding only on its satisfaction –

“(a) by acceptable, cogent evidence; and

(b) to a high degree of probability;

that the evidence is of sufficient weight to justify the finding.”^[3]

4. Section 163(4) sets out a list of the factors to which the Court must have regard in determining whether the offender is a serious danger to the community. They are:

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

(b)the offender’s antecedents, age and character; and

(c) any medical, psychiatric, prison or other relevant report in relation to the offender; and

(d)the risk of serious physical harm to members of the community if an indefinite sentence were not imposed; and

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

Sub-section 5 makes it clear that that list of factors is not exhaustive. 

The attempted murder

5. The applicant, without explanation or provocation, accosted a middle-aged woman walking in a reserve and stabbed her a number of times as she endeavoured to get away from him. In all, she received 13 stab wounds to her hand, arm, chest, side and back. Two of the wounds, over the sternum, were described in a medical report as deep; they were 10 cm in length.

6. In the hours after the assault the applicant went to his father’s house and told him that he had stabbed someone, as a result of which the police were called. The applicant was interviewed. He said that he had been on his way to work from his uncle’s house where he had been living, but thoughts about hurting people, which he had constantly, drove him to the bush. He pictured how he might hurt people, how he might “bash them, stab them, choke them, hang them up”. When he initially arrived at the reserve, he intended to hang himself so as not to act on his violent thoughts but when he saw the woman something in him snapped and he lashed out with his pocket knife. He said that he had no thought of sexual assault but had a mental picture of himself killing her.

The applicant’s background

7. The applicant was 20 years old when he committed the offence. He had a criminal history as a child; he had pleaded guilty to two counts of attempted robbery, one count of indecent assault, one count of common assault and one count of rape committed in 1999, when he was 16 years old, and had been sentenced to six years detention. The rape involved an attack on a 12 year old child riding her bike through a park. He had forced her into bushes where he raped her, using a condom. He was arrested almost immediately, but was given bail. A month later, in separate incidents, he assaulted two 16 year old girls, grabbing them and demanding money from them. (He said later that he needed money to buy cannabis.) In the course of one assault he held the victim down and rubbed her breast and buttock. He assaulted a friend who came to her aid, slapping her across her face.

The psychiatric and psychological evidence

8. At the time he was dealt with in the Children’s Court and later while he was held in juvenile detention, the applicant was interviewed by a number of psychiatrists, psychologists and officers of the Department of Families, Youth and Community Care. All noted a lack of empathy for his victims. The various reports describe a background of disharmony and violence between the applicant’s parents, culminating in their separation when he was 14. After the applicant began high school he started to get into trouble, truanting, misbehaving and ultimately being expelled from school. He reported having had suicidal thoughts and having on occasion harmed himself in minor ways. He said that he sometimes experienced voices telling him to do things, including harming other people. A psychometric assessment established that his full scale IQ was within the borderline range.

9. A week after his apprehension on the attempted murder charge, the applicant was interviewed by a psychiatric registrar, Dr Voita, whom he informed that prior to the 1999 offending he had used cannabis, amphetamines and heroin; he had also, at the age of 15, sniffed aerosols and petrol. After his release from juvenile detention he had been using between 50 and 80 cones per day of cannabis. Eight months after his arrest, having cut himself with a razor, the applicant was examined in prison by a psychiatrist, Dr Schramm. He told Dr Schramm that after the attempted murder he had gone to other bushland to find another victim; he was unable to say why. Dr Schramm noted his lack of empathy with the victim.

10. Dr Donald Grant, psychiatrist, prepared a report dated 18 July 2005 for the assistance of the sentencing judge and gave evidence at the sentence hearing. The applicant had refused an interview; the report was based on the available material, including the briefs of evidence for the attempted murder and the 1999 offences, and previous psychiatric and psychological reports.              Dr Grant’s evidence was explored, but not challenged, in cross-examination.  He noted the applicant’s disrupted family background and limited intellectual resources.  He regarded him as having a “very disturbed personality with borderline and anti-social traits”.  Dr Grant did not think that the voices that the applicant reported hearing were indicia of psychiatric illness; he thought it more likely that they were drug-induced.

11. Dr Grant identified a number of features of particular concern: the fact that the applicant’s earlier offending behaviour had occurred when he was only 16; the extent of the violence used in the rape and the attempted murder, and the apparent escalation in violence between them; the emotional coldness with which the offences were carried out; the lack of warning signs before the behaviour in question making it difficult to predict impending offences; the fact that the offences were committed against strangers for motivations which were entirely internal to the applicant himself and were not identifiable; the applicant’s apparent inability to control his anger or impulses towards violence; his inability to understand the effects of his behaviour; his lack of understanding of future risks; the lack of any social network; the history of very heavy substance abuse; and the harm done to others.

12. It was unlikely, Dr Grant said, that the applicant could establish himself in any secure social position soon after leaving prison; and there was some risk that he would offend simply to get back into the prison environment. He presented a high probability of recurrent offending. His personality disorder was not amenable to treatment. The only positive thing Dr Grant could find to say was that the applicant was young and might yet be malleable and able to develop better controls over his behaviour. He could be expected to mature over the next 10 to 20 years and “hopefully [sic] over a period of years will develop further insights into his own behaviour and need for assistance”. Dr Grant was not asked specifically to deal with the question of the risk the applicant might pose at given times in the future; at the end of, say, ten or fifteen years in custody.

The sentencing process

13. The learned sentencing judge referred to Dr Grant’s opinion and the psychiatric and psychological evidence from the applicant’s period in juvenile detention as well as to the effects of the instant offence and the prior offences. He concluded that the applicant was “a particularly dangerous person and [would] remain so indefinitely.” He expressed himself satisfied that the applicant was a serious danger to the community “because of the considerations set out in s 163(3)(b)”. He proceeded to impose an indefinite sentence, and then turned to a consideration of the term of imprisonment which he would have imposed were it not for the indefinite sentence. He stated 15 years imprisonment as the appropriate term, declaring the period the applicant had spent in custody from 7 February 2005 as time already served.

The relevance of the nominal sentence

14. In Buckley v The Queen^[4] the High Court, emphasising the exceptional nature of an indefinite sentence, pointed out that the nominal sentence had a significance beyond marking the point at which review of the indefinite sentence would be required:

“where a judge, sentencing a dangerous offender, is deciding whether the protection of society requires an indefinite sentence, the protective effect of a finite sentence, fixed according to ordinary sentencing principles, including the need to protect the public, is a matter to be weighed carefully.”^[5]

Thus the need for the indefinite sentence was to be considered “in the light of the protective effect of a finite sentence”; and questions of risk assumed greater uncertainty because they had to be considered against a background in which the applicant would remain in custody for many years.^[6]  The parole system and the possibility of treatment in custody required consideration.^[7] It was possible that the system of review under the Act would be, in a given case, the only proper way of balancing community interests against justice to the offender; but, the Court said, “the protective potential of the ordinary sentencing regime needs to be examined first and most closely before deciding to depart from it”.^[8]

15. It is clear, in this case, that the significance of the nominal sentence was adverted to only in the context of when the review provisions would commence operation. The imposition of the indefinite sentence and the imposition of the nominal sentence were carried out sequentially, as distinct exercises. Counsel’s submissions did not direct the learned sentencing judge’s attention to the question of how the setting of a finite term might bear on risk; nor was any psychiatric or psychological evidence specifically addressed to that question, although Dr Grant’s reference to the possibility of maturation over 10 to 20 years highlighted the importance of this issue. The judgment in Buckley v The Queen was delivered after the date of sentence, but the relevance of this aspect of risk had been recognised well before then, in cases considering indefinite sentences, at both appellate and trial level.^[9]

16. Counsel for the respondent argued that the learned sentencing judge’s conclusion that the applicant would remain dangerous “indefinitely” demonstrated that he had considered not only present but future risk. But it is clear that the learned judge in making that finding did not –was not asked to – turn his mind to the effect of a finite sentence in reducing that level of danger and thus the risk to the community. Nor was there evidence on which he could do so. That error and lack of evidence require the granting of the application for leave to appeal and the setting aside of the sentence.

17. On the existing evidence, this Court cannot form an opinion as to whether an indefinite sentence “is warranted in law”.^[10]  There was some discussion as to whether the appeal should be adjourned to allow an application for re-opening under s 188 of the Penalties and Sentences Act, or whether the matter should be remitted to the Trial Division for a hearing de novo.^[11]  The Court was referred to its decision in R v McQuire & Porter; ex p A-G (Qld)^[12] in which the appellants’ appeals were allowed, their sentences set aside and the matter remitted to the District Court for determination by hearing de novo of the sentences to be imposed.  That seems the better course here also.

18. We make the following orders:

1. Grant leave to appeal against sentence.

2. Allow the appeal and set aside the sentence.

3. Remit the matter to the Trial Division of the Supreme Court for a hearing de novo of the sentence to be imposed.