Lowndes v R [1999] HCA 29; 195 CLR 665; 163 ALR 483; 73 ALJR 1007 (17 June 1999)

Last Updated: 17 June 1999

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

PETER ANTHONY LOWNDES APPELLANT

AND

THE QUEEN RESPONDENT

Lowndes v The Queen [1999] HCA 29

17 June 1999

P55/1998

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of Western Australia in relation to the Crown appeal against sentence made on 8 August 1997 and dismiss the Crown appeal to that Court.

On appeal from the Supreme Court of Western Australia

Representation:

D Grace QC with R D Young for the appellant (instructed by Gunning)

S P Pallaras with J A Girdham for the respondent (instructed by Director of Public Prosecutions (Western Australia))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Lowndes v The Queen

Criminal law - Sentencing - Sexual offences - Appellant sentenced to six years with parole eligibility - Crown appeal - Order for indefinite imprisonment made by appellate court - Considerations relevant to making indefinite imprisonment order - No material error by sentencing judge or in resulting sentence identified - Appellate intervention and re-exercise of sentencing discretion impermissible.

Sentencing Act 1995 (WA), ss 89, 98.

1. GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ. This is an appeal against a decision of the Court of Criminal Appeal of Western Australia[1], made pursuant to s 98 of the Sentencing Act 1995 (WA) ("the Act"), that, in addition to a term of imprisonment which had previously been imposed upon the appellant by Judge L A Jackson in the District Court, there should be an order that the appellant be imprisoned indefinitely. By the same decision, a parole eligibility order made by Judge Jackson pursuant to s 89 of the Act was set aside.

2. On 28 November 1996, the appellant, following a trial before Judge Jackson and a jury, was convicted of seven sexual offences. Four of the offences involved procuring a child under the age of 13 years to do an indecent act contrary to s 320(5) of the Criminal Code of Western Australia ("the Code"). The maximum penalty for that offence is imprisonment for 10 years. There were also three offences of indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Code. The maximum penalty for that offence is also imprisonment for 10 years. The appellant was sentenced on 19 February 1997. It is unnecessary to set out the detail of the structure of the sentences. The effective total sentence was imprisonment for six years. In respect of one of the individual sentences, the sentencing judge ordered that the appellant be eligible for parole. The Court was informed by counsel, in the course of argument, that errors were made both by the sentencing judge and by the Court of Criminal Appeal in relation to the date on which, pursuant to the orders of the sentencing judge, the appellant could be released on parole. The detail is not presently material. It is sufficient to note that it was agreed that, under the order made at first instance, the appellant could have been released on parole on 29 March 2000.

3. The Court of Criminal Appeal did not alter the sentences imposed by the sentencing judge. However, the order for eligibility for parole was set aside, and, pursuant to s 98 of the Act, it was ordered that, in addition to the term of imprisonment for six years, the appellant be imprisoned indefinitely.

4. The appellant's primary contention is that the decision of the Court of Criminal Appeal should be reversed, and the parole eligibility order restored. An alternative submission was made to cover the possibility that the primary contention failed, but that may be put to one side.

   The legislation

5. Section 98 of the Act provides:

   "(1) If a superior court -

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

   (b) does not suspend that imprisonment; and

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

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

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

   (a) the exceptional seriousness of the offence;

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

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

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

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

   (d) any other exceptional circumstances.

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

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

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

6. By virtue of s 100 of the Act, a sentence of indefinite imprisonment begins on the day when the appellant would, but for that sentence, be eligible to be released from custody.

7. Section 89 provides:

   "(1) A court sentencing an offender to one or more fixed terms may, if it considers that it is appropriate to do so, order that the offender be eligible for parole by making a parole eligibility order.

   (2) In determining whether it is appropriate to make a parole eligibility order, a court may have regard to all or any of the following:

   (a) the seriousness and nature of the offence;

   (b) the circumstances of the commission of the offence;

   (c) the offender's antecedents;

   (d) circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;

   (e) any other reason the court decides is relevant.

   (3) A parole eligibility order must not be made if the fixed term or the aggregate of the fixed terms is less than 12 months, except where the offender, at the date of sentence, is serving or has yet to serve a parole term imposed previously.

   (4) A parole eligibility order must not be made in respect of a prescribed term.

   (5) If a court decides that an offender is to be eligible for parole in respect of 2 or more of the fixed terms it imposes, it is to make a single parole eligibility order in respect of those terms."

8. The principles according to which the courts in Western Australia make decisions concerning eligibility for parole were summarised in Thompson v The Queen[2]. They recognise that the need to protect the community or particular members of it is a factor relevant to the exercise of discretion both by the sentencing judge and, ultimately, the Parole Board[3]. Senior counsel for the appellant did not challenge that proposition, although he challenged another proposition, stated in Thompson, to the effect that "the discretion whether an order for eligibility for parole should be made cannot be triggered unless there is something ... which points positively towards the appropriateness of parole ... but nonetheless the philosophy of the Act suggests a bias towards eligibility"[4]. The meaning of that proposition is somewhat elusive. However, it was not fully argued, and was not relied upon in the reasoning of the Court of Criminal Appeal. It is unnecessary to examine it further.

9. One matter debated in argument was the relationship between ss 89 and 98. Since an order for indefinite imprisonment cannot be made if a parole eligibility order has been made, there is an obvious practical relationship between the two provisions. The fact that a court does not make a parole eligibility order does not necessarily mean that an order for indefinite imprisonment will be imposed. However, in the present case, both at first instance and in the Court of Criminal Appeal, argument was addressed to both issues before any decision was made. The sentencing judge made a parole eligibility order after having heard evidence and argument on the question whether he should make an order for indefinite imprisonment. The Court of Criminal Appeal, in turn, set aside the parole eligibility order, having given consideration to the question, amongst others, whether the court should make an order for indefinite imprisonment.

10. The issues which arise under ss 89 and 98 respectively are in a number of respects different, and the requirements of each section, when it arises for consideration, must be determined separately. Nevertheless, as in the present case, there may be a substantial degree of commonality between the facts which are relevant to the discretionary considerations which arise under s 89 and the facts which are relevant to the discretionary considerations which arise under s 98. In a case where the prosecution is inviting a court to make an order under s 98, it will, by hypothesis, be opposing the making of an order under s 89, and it may be relying upon substantially the same primary facts for each argument. Similarly, counsel for an offender who is pressing for a parole eligibility order, and resisting an order under s 98, will probably be addressing common considerations of primary fact, although their ultimate discretionary significance will need, in due course, to be related to the respective statutory provisions. Where such a contest occurs, the corollary of a decision that a parole eligibility order should be made is that an order under s 98 will not be made. Although the converse is not true, in that a refusal to make an order under s 89 will not necessarily be followed by a decision to make an order under s 98 and although, at the point of ultimate decision making, the first question that will arise is whether a parole eligibility order should be made, nevertheless it is not surprising that, as in the present case, the reasoning of a court might treat the two issues as closely related.

11. Legislation of the kind contained in s 98 of the Act is not novel. In R v Moffatt[5], reference was made[6] to some aspects of the history, in Australia and elsewhere, of laws providing for preventive detention. This Court, in Chester v The Queen[7], considered s 661 of the Code, which was the precursor of s 98. It was there said that the exercise of the power "should be confined to very exceptional cases where the exercise of the power is demonstrably necessary"[8]. It was pointed out in Moffatt[9] that, because an indefinite sentence of the kind provided for in such legislation goes beyond punishing an offender to an extent that is proportionate to the crime, the power conferred upon the court is exceptional, as are the cases that warrant an exercise of the power.

12. The effect of sub-s (2) is that the condition of the exercise of the power is that the court is satisfied on the balance of probabilities that, at a future time, when the offender would otherwise be released, he or she would be a danger to society, or a part of society, because of one or more factors. Thus, what is involved is a decision about a state of affairs that will exist at a time which may be several, perhaps many, years ahead. The relevant state of affairs is a form of danger. That will usually involve an evaluation of risk, and, perhaps, of steps that may be taken to avoid or reduce the risk. The concept of danger to society, or a part of it, may also involve difficult questions of judgment. It was common ground that the present case did not fall within par (a) of sub-s (2). The Crown relied upon a combination of par (b) and (c). Once again, these paragraphs raise questions of evaluation and prediction.

13. The actual decision of the sentencing judge which was set aside by the Court of Criminal Appeal was a decision to make a parole eligibility order under s 89. However, as will appear, the substantial reason given by the Court of Criminal Appeal as to why the learned judge was in error in making such an order was that the case called for the making of an order under s 98. Accepting that, as a practical matter, the two questions, in the present case, could be regarded as related, although legally separate, nevertheless the exercise of a power to make an order under s 89, by implication preferring that course to the course of making an order under s 98, involved a discretionary judgment of a kind which involved all the considerations referred to above.

14. In argument reference was made to the decision of this Court in Mitchell v The Queen[10]. That appeal turned upon the construction of s 40D(2a) of the Offenders Community Corrections Act 1963 (WA). It was held that that provision did not confer a discretion upon a sentencing judge, but rather conferred a power to be exercised upon satisfaction of a condition[11]. Sections 89 and 98 of the Act are cast in a different mould and involve the making of discretionary judgments.

15. The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass[12] and R v Clarke[13]. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic[14]. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.

    The evidence before the sentencing judge

16. The appellant, at the time he stood for sentence, was a single man aged 44. He was unemployed, and living on an invalid pension.

17. In argument during the sentencing proceedings the prosecutor said of the offences of which the appellant was convicted:

    "These are not, of their type, exceptionally serious offences and that's conceded. Some of them are at the lower end of the range of indecent dealings and the Crown would say that some of them approach the middle range."

18. The offences occurred between October and December 1995 when the appellant was helping out in a second-hand store. He befriended the two 12 year old male complainants when they visited the store. He offered money to one of the complainants to put on a condom in a toilet and show him that he had done so. He then entered the toilet, took the condom from the boy's penis and replaced it. He gave the boy some money. He offered the boy more money to masturbate the appellant until ejaculation. Later he again offered money to the boy to put on a condom. In relation to the other complainant, the appellant offered him money to put on a condom in a toilet and show him that he had done so. He did the same thing again, and later removed the condom from the boy's penis.

19. It was common ground that the appellant was a person whose sole sexual interest was in pre-pubescent boys. He is a solitary person, who suffered a seriously deprived upbringing, who had been traumatised and sexually abused in childhood, and who had been in trouble with the law on a number of previous occasions.

20. The sentencing judge described the previous record of the appellant as revealing "a spasmodic history of offending".

21. The history was set out in the judgment of Malcolm CJ in the Court of Criminal Appeal in the following terms[15]:

    "In the present case, it was submitted on behalf of the Crown that the respondent's record showed that he was a paedophile with a history of offending since the age of 20 years over a 23-year period. Reliance was placed upon the fact that on 3 April 1973 when aged 20 he was convicted of an aggravated assault on a child and placed upon probation for a period of 12 months. This offence was of a sexual nature perpetrated against a 9-year-old boy. Reliance was also placed upon the fact that he was convicted in the Children's Court on 10 January 1978 of an offence of aggravated assault and placed upon probation for a period of three years. This was also an offence of a sexual nature perpetrated on a 9-year-old boy.

    On 25 March 1980 the respondent was convicted in the Children's Court on two counts of indecent dealing with a child under the age of 14 years. The offences were perpetrated on two boys and were in breach of the probation order made on 10 January 1978. He was then sentenced to imprisonment for 18 months on each charge to be served cumulatively with a minimum term of 6 months. On 7 November 1980 he was convicted in the Supreme Court of an aggravated assault in respect of which he was sentenced to imprisonment for 6 months with no minimum term. There is nothing in the materials to suggest that this offence was a sexual offence. On 12 January 1990 he was convicted in the Court of Petty Sessions of indecently dealing with a male and fined $500. The age of the victim does not appear.

    On 3 May 1991 he was sentenced in the Supreme Court by Owen J on his plea of guilty to 11 counts of having unlawfully and indecently assaulted a child under the age of 16 years and three counts of having attempted to sexually penetrate a child under the age of 16 years."

22. The offences for which the appellant was being sentenced in the present case were committed shortly after the expiration of his parole in respect of the last-mentioned offences.

23. The appellant had spent most of his childhood in boys' homes, and foster care. His father killed his mother, in the sight of the appellant, when the appellant was aged nine, and was acquitted of murder on the ground of insanity. The appellant and his siblings were then separated and he has never seen them since. He suffered serious sexual abuse in a boys' home and elsewhere.

24. Bearing in mind the seriousness of the course which the Crown was inviting the sentencing judge to take, the evidence directed to the issues raised by ss 89 and 98 was less than comprehensive. Some of it was directed, in a rather inconclusive fashion, towards the possibility of pharmacological intervention to assist to control the appellant's sexual impulses, and to the question of the availability of such treatment inside and outside the prison system. There was also some evidence concerning previous attempts to assist the appellant in that respect.

25. The sentencing judge had before him a brief letter from a psychiatrist, Dr Carter, which, after referring to the appellant's background, said:

    "Peter has asked for help in controlling his sexual impulses. If he is given a custodial sentence he should undertake the Sex Offenders Treatment Program in prison. When he is no longer in custody I am prepared to supervise libido reduction treatment by weekly injections which, together with appropriate counselling and group work, will reduce the likelihood of him re-offending in future."

26. A forensic psychiatrist, Dr Pullela, wrote a report which said:

    "From the psychiatric history and assessment, it appears that Mr Lowndes has a long history of sexual offending behaviour, ie paraphilia. Personality profile indicates probable antisocial traits with impulsivity and difficulties in coping with stress. There is no evidence of any major psychiatric disorder per se.

    ...

    It is my considered opinion that Mr Lowndes does not reveal any evidence of any treatable psychiatric disorder per se. The history is suggestive of a paraphiliac disorder with egosyntonsic sexual fantasies and ideation. He has antisocial traits of impulsivity and probable difficulties in coping with stress.

    I would like to respectfully recommend to the court that Mr Lowndes requires a sex offender treatment program, along with sexual counselling for a significant amount of sexual abuse as a child. I would also like to respectfully recommend to the court that he requires ongoing psychological counselling, supervision and guidance in order to address issues such as social/communication skills and coping strategies. It is my considered opinion that Mr Lowndes carries a high risk of reoffending in future. If a community option is chosen, the above recommended measures should be imposed as conditions of release. Otherwise, these measures would be organised through the Department of Psychological Services, Ministry of Justice, if a custodial sentence is given."

27. A pre-sentence report was prepared by a forensic psychologist contracted to the Ministry of Justice, Ms Cull. She also expressed the opinion that there was a high risk of reoffending. She summarised her views as follows:

    "Lowndes is a socially deficient individual having very few personal assets and interpersonal strengths. The effect upon his normal emotional and psychological development of early childhood trauma and chronic abuse thereafter have been substantial with an extremely fragile psyche and ego structure resulting as a consequence. His social, emotional, psychological and sexual needs have typically been met through his association with pre-pubescent males.

    Lowndes' psycho/social needs are extreme however attempts to assist him in this regard have proven fruitless to date. Lowndes is assessed as presenting an extremely high risk of reoffence with his options to reduce this risk being minimal. The possible administration of an appropriate psychopharmacological intervention aimed at reducing the level and frequency of his sexual arousal is likely to be of some value however this would serve to address only one dimension of his therapeutic needs. Medication of this nature should be prescribed in the period immediately prior to release to the community, there being no point to its administration whilst Lowndes is incarcerated. There are few, if any, avenues as yet untested through which Lowndes might gain some assistance in developing appropriate social and interpersonal skills as well as gaining an understanding of and assistance with implementing the appropriate management and control of his deviant sexual interests. Other than through participation in the intensive Sex Offender Treatment Programme, for which Lowndes is assessed as unsuitable, the availability of options to assist him in these areas within the prison system is negligible. Of primary importance given any form of intervention is the desire and determination to no longer reoffend which has not yet been demonstrated by Lowndes.

    Given the Court's request that this Report consider the issues relevant to Section 98(2) of the Sentencing Act (1995), the following comments are offered in relation to the specific points contained therein. Whilst the current offences are viewed as extremely serious by their sexual nature, they are perhaps less so than previous sexual offences perpetrated by Lowndes. Lowndes is however assessed as dangerous to pre-pubescent males and as such presents a highly significant risk of reoffence. His psychological and social needs are extremely high with few options available whereby these deficiencies might be appropriately remedied. He has a lengthy history of similar offences spanning over twenty three years. Previous periods of incarceration and treatment interventions have not proven beneficial in reducing his risk to the community."

28. The reference to the appellant's unsuitability for participating in the sex offender treatment program in prison is explained by an earlier passage in the report of Ms Cull in which she states that the appellant had attempted to participate appropriately in such a program, but it proved to be too difficult for him, and his presence was regarded as detrimental to the progress of other participants in the program. The report of Ms Cull appears to suggest that there was a question whether pharmacological intervention would be available to the appellant in prison, except immediately prior to his contemplated release from prison. This is an issue that was not clarified in the evidence.

    The decision of the sentencing judge

29. The learned sentencing judge made it clear that he regarded the decision as to whether to make a parole eligibility order, under s 89, as a difficult discretionary decision, especially having regard to the material which was relied upon by the Crown, both in support of an argument that an order should be made under s 98, and an argument that no order should be made under s 89. In the course of the sentencing proceedings, in a passage quoted by the Court of Criminal Appeal, his Honour said:

    "It was a very narrow decision as to whether he should be eligible at all ... I very nearly came to the conclusion that he should not be eligible at all, but in view of the recommendation for post-imprisonment treatment I thought it appropriate to make one of the sentences an eligibility [sic] so that that would be included, but it was only for that reason otherwise in terms of his offending and his danger to the community I would have thought that the law would be well-satisfied if he was not made eligible for parole, but because of the treatment aspect it seemed to me that both his interest and the interest of the community were better served by making him eligible on one [sentence] only and that was why I did it on that basis."

30. In his formal remarks on sentence, addressing the appellant, the judge said:

    "I have given consideration to the question of whether you should be eligible for parole and I accept the opinion in the pre-sentence report that you need both treatment in prison and supervision upon release. I propose to make you eligible for parole on one of the sentences so that such supervision will be available to you. You have on a previous occasion failed to complete a sex offenders course in prison. Your counsel, as I have said, has given reasons for that. Such a course is likely to significantly assist you to avoid future offending and you must, notwithstanding the difficulties, persevere.

    You have also through your counsel indicated your willingness to engage in psychopharmacological treatment aimed at reducing your libido. It is suggested that such treatment commence before release. Although it is a matter for the Parole Board, I would suggest it should take your participation in the sexual offenders program and your commencement of this libido depressant treatment, which you have said you are willing to undergo, into account when deciding whether to release you on parole. A failure to participate in the course and the treatment may be viewed as a lack of genuineness on your part."

31. It is clear that, in deciding to make a parole eligibility order, the sentencing judge gave careful consideration to the question whether, on release, the appellant would be a danger to the community. His Honour addressed the somewhat unsatisfactory evidence on the question of the availability of medication to reduce the appellant's libido and made the judgment that such treatment was most likely to be effective if administered under parole supervision. He acknowledged the risk of reoffending, but made a discretionary judgment that, in the circumstances of the case, the appellant should be granted the opportunity for rehabilitation implicit in a grant of a parole eligibility order. He understood that it would be a matter for the parole authorities to determine whether in fact a grant of parole would be made.

    The decision of the Court of Criminal Appeal

32. The leading judgment of the Court of Criminal Appeal was that of Malcolm CJ, with whom the other two members of the court agreed.

33. After referring to the facts and the evidence before the sentencing judge, Malcolm CJ noted that, in the appellate court, the appellant had sought to rely upon a report of a psychiatrist, Dr Kay. That report referred in particular to the possibility of treatment of the appellant by medication. Malcolm CJ expressed the view that the report did not carry the matter any further, and considered it would be inappropriate to receive the report as additional evidence "unless it [was] first determined that the discretion of the learned judge had miscarried so that it became necessary for this court to exercise the discretion anew."[16] As will appear, that was what the Court of Criminal Appeal ultimately determined, but no further reference was made in his Honour's reasons to the report of Dr Kay, presumably because of the view that it carried the matter no further.

34. Malcolm CJ expressed his reasons as follows[17]:

    "As already mentioned, I consider the critical question was whether an order should be made that the respondent be eligible for parole. So far as [the relevant grounds of appeal] are concerned, it was submitted that in making a parole eligibility order the learned sentencing judge failed to adequately take into account or give sufficient weight to the likelihood of the respondent re-offending; the history of treatment of the respondent and the likelihood that further treatment would be ineffective; the respondent's history of repeatedly committing offences in the middle range of seriousness; and the material indicating that there was little or no prospect of change in his pattern of offending. It was also submitted that the history of treatment for any psychological, psychiatric or medical condition affecting the respondent and of the previous parole order should be taken into account in determining whether to impose indefinite imprisonment. Finally, it was submitted that the material available to the learned sentencing judge indicated an extreme likelihood of re-offending and a psychological makeup that showed that to be almost inevitable, because the psychological background of the respondent indicated that treatment was unlikely to be successful.

    ...

    In my opinion, having regard to the failure of the respondent to complete the sex offender treatment program in prison, the extremely pessimistic prognosis of the possibilities of treatment, the possibility that the respondent's libido may be reduced by chemical means through the administration of drugs remains speculative. There is no reason, however, why that should not be attempted from within the prison system. This would clearly be in the interests of the community. Unless such treatment is successful the evidence indicates on a balance of probabilities a high risk that the respondent will commit similar offences in the future having regard to his psychological condition. In my opinion, having regard to the assessment of the respondent and the history, I consider that it was established on the balance of probabilities that the danger to society by virtue of the risk that the offender will commit other indictable offences at the time of his release unless treatment by drugs proves successful constituted a sufficient reason not to make an order for parole and to order that, upon completion of the service of the fixed terms of imprisonment imposed, an order should be made that the offender be imprisoned indefinitely.

    For these reasons I would allow the appeal, set aside the order for eligibility for parole and substitute an order that the respondent be imprisoned indefinitely."

35. The primary submission advanced on behalf of the appellant in this Court is that the Court of Criminal Appeal failed to identify any material error of fact or law on the part of the sentencing judge, and dealt with the matter as though it were entitled to substitute its own discretion for that of the sentencing judge, regardless of whether error had been shown. The Court of Criminal Appeal, it was said, appeared, in effect, to have proceeded as though it was entitled to intervene on the ground that it would have exercised its discretion differently from the manner in which the trial judge had exercised his.

36. It was also submitted for the appellant that, although the Court of Criminal Appeal accurately identified the issue for consideration as to whether the trial judge was wrong to make a parole eligibility order under s 89, it answered that question by deciding that the case warranted the making of an order under s 98.

37. As to the second submission, it may be accepted that Malcolm CJ expressed his reasons somewhat elliptically. In the passage quoted above, he began by reciting the arguments advanced by the Crown as to why the trial judge had erred in his decision under s 89, but did not state expressly whether he agreed with all or any of those arguments. His Honour then went on to address the issues raised by s 98. It is clear, however, that he concluded that, in the circumstances of the particular case, the considerations which led him to form the view he expressed in relation to s 98 also led him to the view that a parole eligibility order should not have been made under s 89. In the circumstances of the present case, such a process of reasoning did not of itself involve error. This submission must be rejected.

38. However, the primary submission made on behalf of the appellant has force. The observation that the risk that the appellant would commit other offences at the time of his release, unless treatment by drugs proved successful, "constituted a sufficient reason not to make an order for parole", and to make an order for indefinite imprisonment, inverted the question that had to be decided. The question for the Court of Criminal Appeal was not whether the sentencing judge had a sufficient reason not to make an order for parole. The question for the Court of Criminal Appeal was whether the making of an order for parole involved error of a kind warranting appellate interference with a discretionary judgment. Unless some material error of fact or law could be discerned in the reasoning of the sentencing judge, then the question for the Court of Criminal Appeal to consider was whether the circumstances of the case were such that the making of a parole eligibility order involved an implied error, or whether, in other words, the circumstances were such as to require the judge not to make an order for parole.

39. If, in the present case, the sentencing judge had, like the Court of Criminal Appeal, come to the conclusion that the circumstances of the case warranted a refusal to make a parole eligibility order, and called for the serious and extraordinary step of making an order under s 98, the appellant would likewise have faced the difficulty of persuading the appellate court that it was entitled to interfere in respect of the exercise of that discretionary judgment. In the present case, however, after giving consideration to the evidence, and the competing discretionary arguments, the sentencing judge decided to make an order under s 89, and thereby produced the consequence that no order could be made under s 98.

40. As far as appears from the reasons of Malcolm CJ, the only point of possible factual disagreement between the Court of Criminal Appeal and the sentencing judge concerned the question whether medical treatment aimed at reducing the appellant's libido was available in prison, otherwise than immediately before a proposed release on parole. In so far as there was a difference on this point, the evidence, which has been set out above, was such that it was open to the sentencing judge to reach the conclusion he formed, and there was no occasion for appellate intervention on that ground. The reasoning of Malcolm CJ identified no failure on the part of the sentencing judge to advert to any material consideration, no taking into account of any immaterial consideration, and no error on the part of the sentencing judge which justified setting aside his exercise of discretionary judgment and exercising its own discretion.

41. The appeal should be allowed and the Crown appeal against sentence to the Court of Criminal Appeal should be dismissed. The orders made in relation to the Crown appeal should be set aside. For reasons that are presently immaterial the Court of Criminal Appeal, without opposition from the Crown, made an order, in favour of the appellant, on his cross-appeal to that Court, backdating his sentence. There is no challenge to that order, which should stand.

    Orders

42. The appeal should be allowed. The orders made by the Court of Criminal Appeal in relation to the Crown appeal against sentence should be set aside. The Crown appeal to the Court of Criminal Appeal of Western Australia should be dismissed.

[1] (1997) 95 A Crim R 516.

[2] (1992) 8 WAR 387 at 395-396.

[3] See also Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 532.

[4] Thompson v The Queen (1992) 8 WAR 387 at 395.

[5] [1998] 2 VR 229.

[6] [1998] 2 VR 229 at 251-252.

[7] [1988] HCA 62; (1988) 165 CLR 611.

[8] [1988] HCA 62; (1988) 165 CLR 611 at 618.

[9] [1998] 2 VR 229 at 255 per Hayne JA.

[10] [1996] HCA 45; (1996) 184 CLR 333.

[11] [1996] HCA 45; (1996) 184 CLR 333 at 345-346.

[12] (1993) 72 A Crim R 561.

[13] [1996] 2 VR 520.

[14] House v The King [1936] HCA 40; (1936) 55 CLR 499.

[15] (1997) 95 A Crim R 516 at 524.

[16] (1997) A Crim R 516 at 530.

[17] (1997) A Crim R 516 at 529-531.