R v Garland[2014] QCA 3

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.

[2] MORRISON JA:  This is an application for leave to appeal from the decision on the first review of an indefinite sentence imposed under s 163(2) of the Penalties and Sentences Act 1992 (“PSA”) (Reprint No. 5B).

[3] The applicant was sentenced for a number of offences by Hoath DCJ, on 23 October 1998.  As a result, four indefinite sentences were imposed on four charges of rape.  Life imprisonment was nominated (in each case) as the term of imprisonment the court would have imposed, had it not imposed an indefinite sentence.[1]

[4] An appeal was instituted against the sentence, but later abandoned.

[5] Section 171(1)(a)(ii) of the PSA (Reprint No. 5B) required that the court that imposed the indefinite sentence:

“… must for the first time review the indefinite sentence within 6 months after an offender has served … if the offender’s nominal sentence is life imprisonment – 13 years of the nominal sentence …”.[2]

[6] That first review was heard by the learned primary judge on 13, 14 and 16 August 2012, with the decision being handed down on 29 August 2012.  The learned primary judge decided that he would not discharge the indefinite sentence, with the consequence that the indefinite sentence continued in force.  It is that decision in respect of which leave is sought to appeal.

Legislative provisions

[7] The applicable provisions appear in the PSA, s 3 of which sets out the purposes of that Act as including:

(a) collecting into a single Act general powers of courts to sentence offenders;

(b) providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and, in appropriate circumstances, ensuring that protection of the Queensland community is a paramount consideration;

(c) promoting consistency of approach in the sentencing of offenders; and

(d) providing sentencing principles that are to be applied by courts.

[8] The normal sentencing principles appear in s 9 of the PSA.  Apart from those appearing under s 9(1) dealing with the purpose of punishment, rehabilitation, deterrence and denunciation, the purpose of protecting the Queensland community from the offender is also specifically mentioned.[3]  By s 9(2), a court, when sentencing, must have regard to a number of factors including the penalty prescribed for the offence, the nature of the offence and how serious it was, the offender’s antecedents, aggravating or mitigating factors, assistance given and time spent in custody.  For an offender such as the applicant, who was convicted of a violent offence, s 9(4) requires the sentencing court to “have regard primarily” to 11 other factors.  They include:

(a) the risk of physical harm to any members of the community if a custodial sentence were not imposed;

(b) the need to protect any members of the community from that risk;

(c) the circumstances of the offence;

(d) the nature or extent of the violence used in the commission of the offence;

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

(f) anything else about the safety of members of the community that a sentencing court considers relevant.

[9] Sections 11 to 13A also stipulate matters which are to guide a court in sentencing an offender.

[10] In 1998 when the applicant was sentenced, s 163 of the PSA (Reprint No. 5B) provided as follows:[4]

“(1)A court may, instead of imposing a fixed term of imprisonment, impose an indefinite sentence on an offender convicted of a violent offence on –

(a)its own initiative; or

(b)an application made by counsel for the prosecution.

(2) In imposing sentence under subsection (1), the 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.

(3) Before a sentence is imposed under subsection (1), the court must be satisfied –

(a)that the Mental Health Act 1974, part 4 does not apply; and

(b)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.

(4) In determining whether the offender is a serious danger to the community, the court must have regard to –

(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).

(5)Subsection (4) does not limit the matters to which a court may have regard in determining whether to impose an indefinite sentence.”

[11] In the case of the applicant the court stated, pursuant to s 163(2), that the nominal sentence was life imprisonment.

[12] Periodic review of an indefinite sentence imposed under s 163 is required under s 171.  At the time that the applicant’s review was conducted, the provision relevant to the review hearing was s 173 of the PSA (Reprint No. 11C) which provided:

“(1)Unless it is satisfied that the offender is still a serious danger to the community when a review is made under section 171 or 172, the court must –

(a)order that the indefinite sentence is discharged; and

(b)impose a sentence (a finite sentence) on the offender under this Act for the qualifying offence for which the indefinite sentence was imposed.

(2)If a court does not make an order under subsection (1)(a), the indefinite sentence continues in force.

(3)A finite sentence –

(a)is taken to have started on the day the indefinite sentence was originally imposed; and

(b)takes the place of the indefinite sentence; and

(c)must be not less than the nominal sentence.”

[13] The only difference between that section as it stood in 2012 (Reprint No. 11C), and its content in 1998 (Reprint No. 5B), was that subsection (1)(b) had been amended.  In 1998 it provided:  “… sentence the offender under this Act for the violent offence for which the indefinite sentence was imposed”.  The change is immaterial to this application.

Contentions on the application for leave

[14] The applicant’s contentions focussed on a number of alleged errors in the reasoning of the primary judge, namely:

(a) assessing the danger to the community by reference to an immediate notional release into the community and by projecting that assessment into the future for at least two years;

(b) misapplying or not applying the dicta of the High Court in Buckley v The Queen;[5] and

(c) not properly accounting for the protection given to the community by the parole board, given that the applicant’s nominal sentence was life imprisonment.

[15] The central point put by the applicant was that the learned primary judge should not have reached the conclusion that the applicant was still a serious danger to the community within the meaning of s 173(1), because:  if the indefinite sentence was discharged that would simply mean that the applicant would continue his imprisonment on the basis of the nominal sentence, namely the life sentence; and that would not mean an immediate release into the community because, if the applicant made an application for parole, the applicant’s release would be governed by decisions made by the Parole Board.  Thus, it was contended, the protection of the community was ensured because: the possibility of his release would be governed by the Parole Board; the Board was constrained by its own guidelines; and that meant that the applicant would not be released if there was an unacceptable risk to the community.[6]

[16] In argument, the applicant’s central contention was distilled to the proposition that if the primary judge had adopted the correct construction of the legislation then the inevitable result would have been that the indefinite sentence should be discharged and the nominal sentence imposed.  This was said to follow from these essential steps:

(a) section 173(1) provides that the court must discharge the indefinite sentence, unless it is satisfied that the offender is still a serious danger to the community;

(b) the question of whether an offender is still a serious danger to the community refers back to s 163(4), which specifies five things to which a court must have regard in determining whether an offender is a serious danger to the community;

(c) section 163(4)(d) specifies one of those matters, namely the risk of serious physical harm to members of the community if an indefinite sentence were not imposed; that required the court to proceed on the basis that the indefinite sentence does not remain in place;

(d) section 163(4)(e) requires the court to have regard to the need to protect members of the community from that risk; and

(e) if, on the review, an indefinite sentence was not imposed because it was discharged, there would be no relevant risk of serious harm, nor need to protect members of the community, because the applicant would not be immediately released, and any release would only be by way of an application for parole, at which point the Parole Board would assess whether there was an unacceptable risk to the community.

[17] The applicant accepted that the logical extension of these contentions was that in every case where there was an indefinite sentence imposed and the nominal sentence was life, the first review would inevitably result in the discharge of the indefinite sentence.

The primary judge’s approach

[18] The hearing before the primary judge occupied three days, during which time evidence was adduced from expert and non-expert witnesses.  The experts included psychiatrists (Dr Lawrence and Dr Reddan) and a psychologist (Dr Madsen).  The non-expert witnesses included Mr Wood who, at the relevant time, was the principal adviser of the Sexual Offending Programs Unit in Queensland Corrective Services.  There was also a report by Ms Lynas, Director of the High Risk Offender Management Unit of the Queensland Corrective Services.

[19] The applicant’s antecedents were recorded by the primary judge.[7]  That review included considerable detail about the nature of the applicant’s extensive and violent criminal history prior to being sentenced by Hoath DCJ in 1998.  I do not need to set out all of those matters, but it is appropriate to summarise the following aspects of the applicant’s criminal history:

(a) the applicant was sentenced for the first sexual offences committed by him, at age 14;

(b) between mid-1985 and late 1992  there were many sexual assaults, as well as very many general assaults of all kinds, four counts of wilful damage, an escape and a preparation to escape;

(c) the applicant was imprisoned for seven years in 1988, and later for four years in 1989;

(d) the offences dealt with by Hoath DCJ in 1998 included four indefinite sentences imposed for four counts of rape with life imprisonment being specified as the “nominal sentence” on each of those counts;

(e) in addition there were three counts of indecent assault with circumstances of aggravation, also attracting sentences of life imprisonment;

(f) there were numerous other sentences for various other offences, though none of them exceeded five years;

(g) the offences dealt with in 1998 resulted in a 45 count indictment, with a total of 32 individual complainants, with 11 sexual offences being committed in relation to four of those complainants; and

(h) in addition, all offences were committed within one week of being granted parole for the previous sexual offences, and four months after being released from custody to home detention in 1997.

[20] Since the sentences were imposed in 1998, the applicant had spent over nine years in solitary confinement, with the longest consecutive period being from 2001 to 2008.  Outside of solitary confinement there had been a number of incidents and breaches recorded, including displays of anger, smashing furniture, threatening prison officers, positive results to drug tests, possession of a syringe, and various incidents of aggressive behaviour.

[21] The learned primary judge also reviewed the various programs which had been undertaken by the applicant whilst in custody.  Those programs completed included anger management and violence intervention programs.  However, there had been no completion of any sexual offending programs, though this was attributable to the applicant being placed in maximum security and detention units.

[22] The applicant was born in 1971 and was therefore 41 at the time his review was conducted by the learned primary judge.  Because of his extensive criminal history, it was the case that from 1982 he had spent approximately 18 months only outside gaol or similar institutions.  Much of his period in gaol had been spent isolated from the general prison community.  Apart from lawyers, he only had regular contact with a retired Catholic priest and the applicant’s half-brother.

[23] The primary judge also examined thoroughly the evidence before him as to whether the applicant was able to demonstrate any awareness of, or ability to, control his sexual urges and drives, as well as whether there was any true remorse being shown by the applicant.  He reached the conclusion that the applicant’s actions and verbal responses were directed towards giving those who were interviewing him or who had power over him, what they wanted to hear.[8]

[24] Based on the evidence from the psychiatrist and the psychological reports that the applicant still constituted a significant risk of re-offending, his Honour concluded:[9]

“The final conclusion that I reach from the psychiatric and psychological reports (as adjusted for deletion of “inadmissible” material), taking also into account my own conclusions about the respondent, is that whatever prospect there might be in the longer term future with existing, or new, management programmes directed to reintroducing the respondent to the general prison population, notwithstanding many of the difficulties or barriers to such a management plan, there remain aspects of the respondent’s behaviour and personality that, as at the present time, would lead to a significant risk of reoffending in ways that would involve engaging in non-consensual, coercive sexual behaviour in the general community.  Even though I will canvas it later, I also conclude that there is evidence that paraphilia is an additional aspect of the respondent’s condition, because, although I am sceptical about the tests and assessments being conclusive of it, the tentative approach of Dr Reddan to it causes me concerns.  Even if I were to find to the contrary, there is still enough concern arising from all the other accepted material of relevant risk.”

[25] Further review of the question of risk, and the applicant’s background and criminal history, is not necessary.  That is because Mr Cooke QC, who appeared for the applicant, did not challenge the evidence before the learned primary judge, nor his finding, that if the applicant were released into the community there would be a risk of serious physical harm to members of the community.[10]  The concession was made in these terms:

“We don’t dispute the fact, your Honour, that the evidence in front of the judge indicated that the appellant would be a risk to the community if he were released into the community.  But that, with respect, is not the question which the court had to determine on the review.  The court has to determine whether he’s going to be that sort of risk if the indefinite sentence is not maintained.  Now, where he’s going to be locked away in prison if the indefinite sentence is not maintained, he’s not going to be a risk to the community.”

[26] Properly understood, the concession was that the risk to the community if the applicant were released was the risk identified in s 163 of the PSA, namely the risk of serious physical harm to members of the community, and would warrant a finding that the applicant was a serious danger to the community within the meaning of s 163(3) of the PSA.

Primary judge’s conclusion on “risk”

[27] The learned primary judge noted a number of concerns which he had in relation to the applicant.  These included:

(a) Dr Reddan’s concerns about the applicant’s reluctance to discuss, in any meaningful way, aspects of his sexual fantasising;

(b) the applicant’s feigned lack of recollection concerning conversations which he had with Mr Wood concerning “role-played coercive sex”;

(c) the fact, as found, that the applicant exercised “that control which he does have to formulate appropriate verbal and physical responses to achieve favourable outcomes on issues such as moderating his behaviour, controlling his aggression and providing statements about remorse”;

(d) his conclusion that Dr Lawrence and Dr Madsen had “raised very significant doubts in my mind about the effectiveness of any rehabilitation programs that have been able to be undertaken”;

(e) the agreement by both Dr Reddan and Dr Lawrence that the applicant’s past history is the best indicator of the future; and in particular Dr Reddan’s conclusion that the applicant “has not had enough time to really demonstrate that he has effective impulse control and that there would be a significant risk of reoffending if released “today””.[11]

[28] Those concerns led his Honour to say:[12]

“As discussed above, I do have significant concerns about accepting the respondent’s evidence, both as to its truth about his actual feelings and the extent to which he is able to exercise sufficient control over his actions when faced with the reality about which he now still has continuing fantasies of non-consensual, coercive sexual acts.”

[29] The learned primary judge reviewed, separately, each of the elements required by s 163(4) of the PSA (Reprint No. 11C).[13]  He noted that senior counsel for the applicant, in cross-examining Mr Wood during the review hearing, had described the applicant’s offences which led to the imposition of the indefinite sentences as “horrific sexual offences”.[14]  Not surprisingly, that description, when applied to a more particular consideration of the offences, warranted his Honour’s finding that the offences were “exceptional”.[15]

[30] That analysis led his Honour to the point where he had to evaluate the risk of serious physical harm to the members of the community.  In that respect he referred to the fact that under s 173(1) the court is obliged to order the discharge of the indefinite sentence “unless it is satisfied that this respondent is still a serious danger to the community when this review is made”.[16]  He went on:[17]

“As I have indicated, there is a temporal aspect which I will deal with next.  Associated with the ascertainment of that risk is the need to protect members of the community from that risk.”

[31] The reference to the “temporal aspect” was to various matters considered by the learned primary judge at paragraphs [108] to [116] of the Reasons.  It is important to an understanding of his Honour’s Reasons later, to see just what he identified as the “temporal aspects”.

[32] The primary judge started by acknowledging that s 173(1), on its face, suggested that the question of whether an offender was still a serious danger to the community was to be ascertained “at one particular moment in time only (namely, at the very time of making the review)”.[18]  He went on to identify that s 163 required the court to be satisfied that the offender “is” a serious danger to the community (using the present tense), even though no contemplation of immediate danger from imminent release could be entertained.  That was an obvious reference to the fact that but for the indefinite sentence, the offender would get the benefit of the parole system.

[33] His Honour then gave detailed consideration to the High Court decision in Buckley v The Queen,[19] which was obviously the source for his Honour’s phrase “temporal aspects”.  Buckley considered s 163 of the PSA, but in the context of the judicial exercise involved when the initial sentence was imposed.  Acknowledging that the risk to be weighed was the risk “if an indefinite sentence were not imposed”, that court stated that one of the matters of particular difficulty in the case was the “uncertainty that is necessarily involved in estimating the danger to the community of a person who, on any view, will be incarcerated for such a long time”.[20]

[34] In that case the nominal sentence was 22 years rather than life.  In that context the High Court held that the “operation of the parole system, and the possibility of treatment while in prison, are matters that call for close attention”.[21]  It went on to state that for an original sentencing judge the protective potential of the ordinary sentencing regime needed to be examined first and most closely, before deciding to depart from it.

[35] The learned primary judge acknowledged that the decision on a review under s 173 of the PSA involved considerations of risk into the future.  Even the two year interval between periodic reviews “requires a consideration of risk assessment during that admittedly relatively short period”.[22]

[36] His Honour then had the following to say:[23]

“But the unspoken question yet to be addressed is that which loomed large with respect to the facts in Buckley.  That question involves whether, by close attention to the operation of the parole system, and the possibility of further treatment while in prison, the protective potential of the “ordinary sentencing regime” can deal effectively with the level of risk that exists and will, if it does, continue to exist.  That is, if this Court were to consider, as a preliminary determination only, that immediate, or pre-subsequent review, release (on a notional basis) would present, to the relevant satisfaction, a serious danger to the community so that effectively no parole application should be able to be made under the “new” sections 174 and following, it would mean that there would be a 2 year period before the next review.  But, should the court not also consider what treatment has been proposed concerning the level of risk and what effect it might have on the paraphilia, both being matters which would involve a specialist board such as the Queensland Parole Board determining what danger to the community then existed at the hearing of such an application for parole in the meantime?  With respect to this review, it is simply a review of the original imposition of the indefinite sentences.  It in no way generates any immediate release but, rather, on a discharge of the indefinite sentences simply permits the parole provisions under Part 10 to have application.  Why does not that “protective potential” raise questions not only for the “future” 2 years but also for some shorter period, particularly if protection is arguably available by that path?”

[37] That passage identifies the temporal aspects that his Honour had in mind.  Though similar in character to the considerations which applied at the original sentencing, the difference was the overall duration applicable at a review, namely two years maximum.  Clearly the “temporal aspects” involved a question of whether the availability of parole was a factor that gave the community the protection which the PSA required, even in the face of the risk posed by someone on whom an indefinite sentence had been pronounced.

[38] The primary judge had been urged to follow the course adopted by Mullins J in R v Fletcher.[24]  In that case Mullins J was conducting a periodic review in respect of an indefinite sentence where the nominal sentence was life imprisonment.  The offence was of disabling in order to commit rape, and Fletcher was the subject of psychiatric assessments, all of which revealed that he was a high risk of re-offending in a sexual, violent fashion.  One psychologist had concluded that the nature of Fletcher’s risk behaviour was “severe to potentially fatal”.  Another had concluded that Fletcher had:

“… deep seated and severe psychological and emotional conflicts that have produced intermittent, devastating, sexual violence leaving a trail of severely damaged women and one dead victim”.[25]

[39] Justice Mullins held that she had to “consider the present risk that the respondent presents to the community, and prospective risk to the community, if the indefinite sentence were discharged.”[26]  Her Honour then acknowledged that if the indefinite sentence were discharged and a life sentence were in place,

“the respondent’s eligibility to apply to (sic) parole, both in respect of such life sentence in lieu of the indefinite sentence, and the life sentence that was imposed on him for the offence of murder in May 1998, has already arrived.”

And then went on:

“That means that, for the purpose of this review, I do not need to project forward very far at all to consider the prospective risk to the community, if the respondent were to apply and be granted parole.”[27]

[40] Mullins J then reviewed in some detail the evidence summarised above as to Fletcher’s nature and risk, and concluded:

“… I am satisfied that the respondent is still a serious danger to the community, both now, at the time the review is being made, and in the short to medium future when a parole order could be granted, if the respondent were not the subject of an indefinite sentence.” [28]

[41] The learned primary judge referred to the fact that senior counsel for the applicant had urged him not to follow the course adopted by Mullins J in R v Fletcher.  As to that he said:[29]

“As canvassed above, it is my view that the correct approach is that, besides an assessment being made at the time the review decision is made of risk, an assessment also needs to be made, to give due effect to the temporal issues, to at least the end of the 2 year period mandated by s 171(1)(b) of the PSA and the role, in that time, of how parole can be brought into account in determining whether the imposition of a “finite” sentence would have a sufficient protective effect for the particular finite sentence in the case in question.  Those are to be decided in the context of the exceptional nature of the course that is taken when an indefinite sentence is imposed and, as here, where it is contemplated to be continued.”

[42] It is clear that in that passage his Honour’s reference to giving “due effect to the temporal issues” is a reference to the passage in paragraph [114] of the Reasons where his Honour addressed the question whether, within the two year interval to the next review, the availability of parole would provide protection against the risk.

[43] To return, then, to the way in which the primary judge dealt with the question of risk, it becomes evident that his Honour contrasted the two positions when considering whether the applicant was a serious danger to the community.  The first was without consideration of the “temporal aspects”.  Thus, his Honour said:[30]

“Stripping the conclusion of its temporal aspects – though for the moment only – I am, for all the reasons that I have canvassed in these Reasons, satisfied to a high degree of probability that the respondent is now a serious danger to the community because, if notionally released at the moment, the Queensland community (outside the prison system) would be at risk of serious physical harm from the respondent in that I find that he has not yet reached the stage where he has such control over his impulses that the fantasies which he still has about non-consensual, coercive sexual acts will not be played out if so notionally released.  Therefore, there is a need to protect members of the community from that risk.”

[44] It is plain that in [133] his Honour’s reference to the applicant being “notionally released at the moment” was a hypothetical exercise, looking at the question without taking into account the temporal aspects, “though for the moment only”.

[45] His Honour then went on to assess the same question, but taking into account the temporal aspects.  His Honour’s Reasons in paragraphs [135]-[139] are as follows:

“[135]One particularly complicating feature at the present time is that, although it has been thought that the prospects of actually predicting the likelihood of any offender’s reoffending once released would be better towards the end of the prisoner’s sentence than at the beginning (see, for instance, Muir JA relying upon the evidence led when speaking for the Court in Buckley, in 2008), the evidence in this case, at least with respect to the 2 year term before the next review, suggests that it will depend upon how any treatment provided, and accepted, under any management program devised by Corrective Services has an effect in a positive way.  In précis, no clear prognosis for necessary improvement can be reached now.

[136]Even in such a set of circumstances, it is my view that it is still proper for a judge on review, in considering the risk of serious harm – or to use the term of the legislation “danger” – to members of the community if an indefinite sentence were to be discharged, to consider “the protective effect of the finite sentence that would otherwise” result:  see Buckley at [40].  As further discussed, it “may be” that the “system of review” provides the “only appropriate method” of “relating” the interests of the community to the requirements of justice to an individual offender:  at [43].

[137]In this proceeding, if a decision were to be made that the court make an order that the indefinite sentences be discharged and that the (inevitable) sentences of life imprisonment be imposed (being not less than each of the nominal sentences), the parole provisions would then be available for utilisation by the respondent.  It is clear from Buckley that the operation of the parole system is a matter that calls for close attention and that the protective potential of the ordinary sentencing regime needs to be examined first and most closely before deciding to depart from it.

[138]For this respondent, a Queensland Parole Board would, as illustrated by Gunn v Queensland Corrective Services Commission & Queensland Community Corrections Board[31] not be restricted to considering only evidence legally admissible in accordance with technical rules of evidence.  Its principal concern would be with the future and whether, if released, there would be a risk to the community that the respondent, as applicant for parole, would reoffend:  at folio 9.

[139]While I accept that a forceful argument can be advanced for considering that the more appropriate course would be to now conclude that the indefinite sentences ought be discharged and thereby leave the protective effect for the community to the parole system, even placing to one side the practical complications attendant on the other life sentences, since no clear conclusion can be reached about a discernable diminution in the risk of serious physical harm to members of the community for the whole of the 2 year period, I determine that neither the temporal aspects nor the ordinary sentencing regime, although properly accounted for, does generate a conclusion that sways me from the preliminary decision that I have reached.”

Discussion

The provisions of the PSA

[46] The appropriate point at which to commence is by examining the text of the PSA, in context.  As the High Court said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[32]

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself.  Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.  The language which has actually been employed in the text of legislation is the surest guide to legislative intention.  The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”

[47] The governing principle is still taken to be the following passage from Project Blue Sky Inc v Australian Broadcasting Authority:[33]

“However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.  Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision.  But not always.  The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

[48] Section 163 is contained in Pt 10 of the PSA,[34] which deals with “Indefinite sentences”.  Section 162 defines an “indefinite sentence” to be “a sentence of imprisonment for an indefinite term that … must be reviewed under this part … and …. is to continue until a court orders that the indefinite term of imprisonment is discharged.”

[49] Section 163(1) gives the court power, on an occasion of imposing a sentence for a particular type of offence, to impose an indefinite sentence “instead of imposing a fixed term of imprisonment”.  The offence required for such a sentence in 1998 (pursuant to Reprint No. 5B), when the applicant was sentenced, was a “violent offence”, defined as meaning certain offences which were punishable by life imprisonment.  Section 163(1) was later amended to define the required offence differently, as a “qualifying offence”, defined by reference to a series of offences in Sch 2 to the PSA.  Reference to that schedule shows that many of the offences are ones of violence, with the bulk of them punishable by imprisonment of at least 10 or 14 years, or life.[35]

[50] The significant matter to note about s 163(1) is that the court may impose an indefinite sentence instead of a fixed term.  Given the nature of the requisite offences, any fixed term would almost certainly result in the offender being imprisoned for a period before access to parole became available.

[51] The power under s 163(1) can be exercised on the court’s own initiative, or on application by the prosecutor’s counsel.  If a court imposes an indefinite sentence it is required under s 163(2) to “state in its order the term of imprisonment (the nominal sentence) that it would have imposed had it not imposed an indefinite sentence”.

[52] Section 163(3) sets out two factors as to both of which the court must be satisfied, before it can impose an indefinite sentence.  The first is that certain provisions of the Mental Health Act do not apply.[36]  The second is 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 offence; and (iii) “any special circumstances”.[37]  The phrase used is “because of” which means there must be a direct causal link between the matters specified and the conclusion under s 163(3)(b) that the offender is a serious danger to the community.

[53] Two things can be noted about s 163(3)(b).  First, the state of satisfaction that the offender is a serious danger to the community is one that can be reached notwithstanding the availability of a fixed term sentence.  That follows from the fact that the court must reach that state of satisfaction before being able to impose an indefinite sentence, which it can do instead of a fixed term: s 163(1).  Secondly, there is no requirement that relates to the impact of the parole regime.

[54] In determining whether an offender is a serious danger to the community, s 163(4) stipulates that the court “must have regard to”, amongst other things, “the risk of serious physical harm to members of the community if an indefinite sentence were not imposed”,[38] and “the need to protect members of the community”[39] from that risk.

[55] There is a difference between what is required under subsection (3) and subsection (4).  Under s 163(3) the court cannot impose an indefinite sentence unless it first reaches a state of satisfaction which includes that the offender is a serious danger to the community.  The phrase “must be satisfied” is used and clearly indicates the mandatory nature of that requirement.  Absent that state of satisfaction a court cannot impose an indefinite sentence.

[56] The various matters in s 163(4) are ones that are mandatory for the court to take into account.  However, the requirement is simply that the court must “have regard” to those matters.  It is not bound by them to come to any particular conclusion.  The matters set out in s 163(4) are therefore merely factors to take into account in determining the main question, which is whether the offender is a serious danger to the community.  In that sense one could characterise the issue in s 163(3), whether the offender is a serious danger to the community, as being a jurisdictional issue, without which the court cannot impose an indefinite sentence.  The matters in s 163(4), however, are not the same, as they are matters to which the court must have regard, but what weight is given to them is a matter for the court.

[57] It may be accepted that s 163(4)(d), by referring to the “risk of serious harm to members of the community if an indefinite sentence were not imposed”, requires the court to have regard to whether the offender would constitute such a danger even under a fixed term of imprisonment.  Plainly, a fixed term incorporates the prospect that the offender will, at the appropriate time, apply for parole, and also that the Parole Board will have to consider whether to grant it.  That requires the court to grapple with that assessment in light of the High Court’s words of caution in Buckley v The Queen, as to the uncertainty involved in assessing the risk in the particular temporal context.[40]

[58] However, there is nothing in the words of s 163(4)(d) which says that the mere existence of the prospect that the Parole Board will deal with an eventual application for bail is sufficient to compel the court to a particular view of the risk referred to in that subsection.  Indeed the wording of s 163(1) shows that no such arbitrary limit is evident nor should it be inferred, for two reasons.  First, the power to impose an indefinite sentence arises only on sentencing for the relevant offence, and not at some later stage.  All that happens subsequent to the occasion of sentencing is that if an indefinite sentence has been imposed the system of reviews is applicable under s 171 and s 173.  However, that does not involve the imposition of an indefinite sentence, but rather the issue of its discharge.  Secondly, the court can come to the view that the offender is a serious danger to the community even under a fixed term, because an indefinite sentence can be imposed instead of a fixed term.

[59] Section 163(5) provides that subsection (4) does not limit the matters to which a court may have regard “in determining whether to impose an indefinite sentence”.  The subject matter of subsection (5) is different from that in subsection (4).  Under subsection (4) those five factors are to be taken into account in determining whether the offender is a serious danger to the community.  Having made that determination the court would then have to exercise its discretion as to whether the circumstances warranted an indefinite sentence.  That is the subject matter of subsection (5).  The court can take into account the matters in subparagraphs (a) to (e) of subsection (4), when deciding whether to impose an indefinite sentence.  But the court is not limited to those matters.

[60] The PSA provides for a review under s 171 and s 173.  The first review must occur “within 6 months after the offender has served…50% of the offender’s nominal sentence”, or if that sentence is life imprisonment, 13[41] or 15 years.  That will mean that, in most cases, the first review is taking place close to the time when the offender would be reaching the point at which parole could be sought.  Under s 173(1) the court has to decide whether it is satisfied that the offender is “still a serious danger to the community when a review is made”.  If the court cannot reach that state of satisfaction then it is obliged to discharge the indefinite sentence.  The words of subsection (1) make it clear by the use of the phrase “when a review is made” that it means that the relevant offender is currently a serious danger at the time when the court conducts the review.

[61] Further, the use of the words “is still a serious danger to the community”[42] makes it clear that the reviewing court does not have to re-examine the initial sentencing decision which imposed the indefinite sentence.  In other words, the review under sections 171 or 172 starts with an acceptance that at the time of the indefinite sentence being imposed, the relevant offender was found to be a serious danger to the community.  That this is the correct approach receives support when one considers the wording of s 176 which makes provision for the reports to be used on a review.  Under s 176(3) those reports “are to be relevant to the period from the time the indefinite sentence was imposed on the offender or the last review was made by the court”.

[62] On a review the temporal difficulties addressed in R v Buckley[43] are different.  On the original sentencing the court is dealing with the situation where, if it imposes an indefinite sentence, the next review will be some years away.  On a review the time period to the next review is only two years.  That has an obvious effect on the consideration of the matters in s 163(3) and (4).

[63] In my respectful opinion there is nothing in the PSA provisions which warrant the conclusion for which the applicant contends.

Unlikely results on the applicant’s contentions

[64] Clearly a sentencing judge is faced with the fact that if a fixed term is imposed that will inevitably mean that at some point the offender will be able to access the parole regime.  However, the section gives power to impose an indefinite sentence instead of a fixed term.  There is nothing in the wording of s 163 of the PSA which suggests that prospect overcomes the risk to the community posed by an offender who comes within s 163(3)(b).  On the applicant’s argument no indefinite sentence would be imposed in any such case, because the prospect of the Parole Board sufficiently eliminating the risk would be there in every case.  Had that been the intention of the legislature one would have expected to find some words that would suggest such an outcome.  There are none.

[65] The effect of the applicant’s contention, at least in cases where the nominal sentence is a life sentence, is that the court’s review under s 171 of the PSA would become an arid exercise.  On such a review the nominal sentence will always be such that the offender will be able to access the parole regime if the indefinite sentence is discharged.  On the applicant’s contention, every indefinite sentence would have to be discharged on the first review, merely because of the parole regime.  Once again if that had been the intention of the legislature, one would have expected to have found some words indicating such an outcome.

[66] When the PSA was introduced in 1992, the provisions of Pt 10 relating to indefinite sentences was part of the original Act.  In enacting those provisions it cannot be doubted that the legislature was well aware of the fact that finite sentences involved the availability of the parole regime.  Notwithstanding that, s 163 provides power to the court, in an appropriate case, to impose an indefinite sentence.  It provides its own constraints, including that it is restricted to offences where, in the main, the term of imprisonment is substantial; in most cases the term of imprisonment is life.  The court must be satisfied that the offender constitutes a serious danger to the community under s 163(3)(b).  And, in determining that question, the court is required to have regard to the five specific matters in subsection (4).

The applicant’s approach is contrary to authority

[67] The plain words of s 163 give the court power to impose an indefinite sentence notwithstanding that the alternative fixed term (the nominal sentence) brings with it a form of protection to the community by reason of the parole provisions.  There can be little doubt that s 163(4)(d) and (e) would require a consideration of whether the protective element could be met by the normal process of the parole provisions.  Such an approach would conform with Buckley v The Queen.  But there is nothing in the plain words of the section which suggests that the availability of parole must be taken by the court to meet the need for protection in such a way that it means there is no risk of serious physical harm posed by the offender.  To adopt that interpretation is to not only ignore the evident legislative purpose in s 163, but to effectively read into the section a serious qualification on the power it provides to the court.  Indeed, that approach would mean that an indefinite sentence would rarely, if ever, be imposed because in every case there is, at some point of a finite sentence, the prospect of the parole board’s governance of the question of release.

[68] Further, that approach would run counter to what this Court had to say in The Queen v Fletcher.[44]  That was an appeal against the imposition of an indefinite sentence under s 163 of the PSA.  One contention was that having made the finding that Fletcher was a serious danger to the community, nonetheless the discretion ought to have been exercised to decline to impose an indefinite sentence, because the statutory regime under the Corrective Services Act 1998 governed any question of release under a life imprisonment.  That was rejected in these terms:

“Before the learned sentencing judge, it was contended that the special position of a person serving a term of life imprisonment so far as any question of release is concerned under the statutory regime of the Corrective Services Act 1988 justified an exercise of discretion in the applicant’s favour.  However, it is clear that the Penalties and Sentences Act by its terms contemplates the making of such an order where the nominal sentence is life imprisonment and the applicant’s counsel conceded that no error could be identified in this respect in the learned sentencing judge’s exercise of discretion to impose the indefinite sentence.”[45]

[69] The applicant sought to distinguish Fletcher on the basis that it was decided before the High Court’s decision in R v Buckley.  However, nothing in R v Buckley affects this Court’s recognition of the fact that an indefinite sentence can be imposed notwithstanding that under the nominal sentence there is a statutory regime as to release.

Applicant’s approach rejected by the primary judge

[70] It remains to observe that the applicant’s contention was raised before the primary judge in a slightly different way.  At [103] of the Reasons the primary judge recorded that contention:  there could be no serious danger to the community, in that the relevant “community” for the purposes of s 173(1) could not exist, because there was no imminent release into the community.

[71] The primary judge held that such an interpretation mistook the purpose of s 173 to be a determination based upon implication of immediate release, not in any notional sense, but in a real sense.  He went on:[46]

“Since it is obvious that any original imposition of an indefinite sentence is made in circumstances where protection, by postponed release indefinitely, is the touchstone, and since the satisfaction that must be reached here is whether the offender “is still” a serious danger to the community – and therefore requiring the continuation of that protection of the community – it is clear that such an interpretative approach is erroneous.”

[72] I agree with his Honour’s observation in that respect.

Conclusion on the applicant’s contention

[73] For the reasons given above I reject the applicant’s contention that the mere fact that the applicant’s eventual release (if any) would be controlled by the Parole Board, has the effect that the primary judge could not have found that there was a risk of serious harm to the community if the indefinite sentence was not continued.  Once it is understood, as it should be, that the impact of the parole provisions is merely one factor to be weighed in the decision made under s 173(1) and s 163(4), the applicant is driven to contending that the primary judge erred in some way in his consideration of those factors.

Contentions as to other errors

[74] One of the applicant’s main contentions is that the primary judge erred by assessing the danger to the community on the basis of an immediate notional release.  That contention must be rejected.  His Honour made it plain in his consideration of the “temporal aspects”[47] that a review under s 171 of the PSA did not generate any immediate release, but rather the discharge of an indefinite sentence merely permitted the parole provisions to have application.[48]  His Honour’s references to “temporal aspects” or “temporal issues” included the fact that the impact of the availability of parole came into consideration.[49]

[75] His Honour’s consideration of a notional release scenario was merely the hypothetical question, shorn of its temporal aspects.[50]  Given his Honour’s finding at [116] that the correct approach was to take into account the temporal aspects, what was said in  [113] cannot be reasonably read as other than part of his Honour’s consideration, but not his conclusion.

[76] In my respectful opinion what his Honour did was consistent with the approach of Mullins J in R v Fletcher.[51]  In each case it was recognised that discharge of the indefinite sentence would not result in immediate release, but merely the possible engagement of the parole provisions.  In each case the court looked to the possible release on parole within the interval to the next review period, namely two years.  In that respect the exercise sits well with the requirements of s 173(1) insofar as it imports the consideration in s 163(4)(d) of the PSA, namely consideration of “the risk of serious physical[52] harm to members of the community if an indefinite sentence were not imposed”.  In Fletcher Mullins J assessed the present risk of serious danger, both at the time of the review and in the short to medium future when a parole order could be granted.  That is what the primary judge has done in this case.

[77] His Honour made findings about the applicant, which are not challenged on appeal, and which have an impact on the question of whether his Honour erred in refusing to discharge the indefinite sentence.  Those findings included:

(a) the primary judge had concerns about the applicant’s veracity on certain issues, and was hesitant about accepting the genuineness of his statements of remorse;[53]

(b) the applicant was circumspect, if not deliberately refraining from recalling or remembering, as to circumstances involved with his thought processes and control mechanisms for dealing with sexual fantasising;[54]

(c) Dr Reddan found the applicant “somewhat evasive” about aspects of his masturbatory fantasies, though the applicant acknowledged that at times “he still finds thoughts or images of coercive sexual contact arousing”;[55]

(d) Dr Reddan’s doubts about the applicant’s sincerity in his responses, particularly to sexual matters, led to the finding that the applicant’s action and verbal responses were tailored so as to give the recipient what they needed to hear or wished to hear;[56]

(e) the applicant showed a capacity and ability to control the way in which perceptions might be formed of him and demonstrated a lack of concern for, or recognition of, the significance of his transgressions concerning engaging in any sexual activity with other prisoners;[57]

(f) of the psychiatrists, Dr Reddan was the more circumspect in her conclusions; she concluded that there “would be a significant risk of reoffending” if the applicant were to be released today and “I don’t think you need to be a psychiatrist in a way to work that out”;[58]

(g) Dr Madsen concluded that the applicant remains a high risk of committing a future sexual or violent offence and his long involvement with treatment appeared to have had a limited impact on successfully managing his offending behaviour;[59] and

(h) notwithstanding that Dr Madsen was of the view that the applicant had displayed some insight into his offending behaviour, and did not appear to overtly deny or minimise the extent of that behaviour, nonetheless the applicant “remains at a high risk for committing a future sexual or violent offence”.[60]

[78] Those findings, as well as his Honour’s assessment generally of the psychiatric and psychological evidence, combined with his own findings that there was no clear conclusion that could be reached about whether programs over the next two years would provide any necessary improvement, provide an ample basis for his Honour’s conclusion that the discharge of the indefinite sentence was not warranted.

[79] In making that finding his Honour expressly proceeded on the basis that it was appropriate for him as the judge on review, to consider the protective effect that a finite sentence would provide otherwise.[61]  Notwithstanding his acknowledgment of the availability of the parole provisions should a finite sentence be the result of the review, his Honour determined that he was not satisfied that there would be a discernable diminution in the risk of serious physical harm to members of the community for the whole of the next succeeding two year period.[62]  Having made that finding it was, in my respectful opinion, open to his Honour to make the finding he did.

[80] One significant finding was that which his Honour made at [135] of the Reasons, where he held that no clear prognosis for necessary improvement could be reached in relation to the likelihood of the applicant re-offending if released.  In other words, the evidence did not demonstrate that the risk of serious harm to the community would lessen in the two years following the review.

[81] Notwithstanding that finding, the primary judge went on to consider whether the parole provisions would provide adequate protection against the risk.  Far from failing to properly analyse or take into account the protection given under the Parole Board, that was a matter specifically addressed by his Honour at [137] to [139] of the Reasons.  Once again the significant finding to his Honour’s conclusion was that expressed at [139], namely: 

“… since no clear conclusion can be reached about a discernable diminution in the risk of serious physical harm to members of the community for the whole of the 2 year period, I determine that neither the temporal aspects nor the ordinary sentencing regime, although properly accounted for, does generate a conclusion that sways me from the preliminary decision that I have reached.”

[82] In my respectful opinion it is plain that the primary judge did not take some arbitrary approach based on notional immediate release, ignoring the fact that the parole provisions would be available to the applicant.  To the contrary, his Honour proceeded expressly upon the basis that if the indefinite sentence were discharged, the applicant would be able to apply for parole at the right time.  Nonetheless, it was the fact that the evidence did not demonstrate that there would be any diminution in the risk of serious physical harm during the next review period, that led his Honour to conclude that the indefinite order should not be discharged.

[83] His Honour’s findings as to the psychiatric and psychological evidence were not challenged on appeal.  Similarly, there was no challenge to his Honour’s finding that the evidence did not demonstrate that there would be a discernable diminution in the risk of serious physical harm to members of the community over the next succeeding two year period.  Given that finding it is not possible, in my respectful opinion, to demonstrate that his Honour erred in concluding, as he evidently did, that the parole regime did not obviate the risk.

[84] One contention advanced in the written submissions was that the primary judge confused the “exceptional nature” of an indefinite sentence as described by the High Court in Buckley v The Queen with the exceptional nature of the crimes committed by the applicant.  The error was identified as being in the primary judge’s Reasons at [126].  I am not persuaded that there is anything in this ground.  The primary judge clearly appreciated that the comment by the High Court was in respect of the exceptional nature of the imposition of an indefinite sentence, and used that merely to inform his understanding of what might be exceptional under s 163(4)(a) of the PSA.  His Honour did not confuse the concepts.

[85] I do not consider that his Honour has been demonstrated to have been in error in any relevant respect.

Disposition

[86] For the reasons expressed above I would refuse the application for leave.

[87] PHILIPPIDES J:  I agree that the application for leave to appeal from the decision of the primary judge on the first review of the indefinite sentence imposed under s 163(2) of the Penalties and Sentences Act 1992 (PSA) should be refused for the reasons stated by Morrison JA.