• DIRECTOR’S POLICY •
APPLICATION FOR THE IMPOSITION OF AN
INDEFINITE SENTENCE
28 July 2010
POLICY 28
Director’s Policy in relation to the making of application pursuant to
s.18A of the Sentencing Act 1991 for the imposition of an indefinite
sentence. (Policy 28)
This policy describes the procedures to be followed in matters where
the Director may wish to apply for the imposition of an indefinite
sentence, and the factors that the Director will take into account in his
consideration of that issue. It also examines some issues in respect of
the imposition of sentence.
28.1
1.
Overview of legislation
Subdivision 1A of Part 3, Division 2 of the Sentencing Act 1991 “the
Act” (ss.18A to 18P), read with the definitions of “indefinite sentence”
and “serious offence” in s.3 of the Act, creates a legislative scheme for
the imposition of indeterminate sentences in respect of “serious
offences” committed by offenders who are not “young persons”.
2.
The class of “serious offences” defined by s.3 is an exclusive class, and
it is only in respect of convictions for these offences that the disposition
can be imposed.
3.
The essential features of the scheme are that in prescribed
circumstances, a judge may sentence an offender to “an indefinite term
of imprisonment”, Sentencing Act 1991 s.18A(1). Hereafter references
to sections of an Act without the Act named are references to provisions
of the Sentencing Act 1991. which term must be made subject to the
imposition of a definite “nominal sentence”. s.18A(3) At the expiration
of the nominal sentence the offender’s continued detention is to be
subject to regular review by the sentencing court. s.18H Any such
review must result in either the release of the offender into a 5 year
non-custodial “re-integration” program administered by the Adult
Parole Board, or where no such order is made, in the continued
detention of the offender under the original sentence. s.18M The
scheme includes machinery for dovetailing an indefinite sentence with
a Hospital Order made pursuant to Part 5 of the Act. s.18E
4.
Prior to imposing an indefinite term of imprisonment, the court must
follow prescribed procedures in respect of notice to the offender and the
hearing of evidence and argument.
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 1
5.
This process may be commenced by the court acting on its own
initiative, or upon an application made by the Director of Public
Prosecutions. s.18A(5) An application by the Director must be made by
filing with the court within 5 working days of the conviction, a Notice
of Intention to make an application. s.18C(1)(a) Upon receiving that
Notice of Intention, or upon resolving on its own initiative to consider
imposing an indefinite sentence, the court, acting within 5 working days
of the date of conviction, must explain or cause to be explained to the
offender, that it is considering imposing an indefinite sentence, and the
effect of any such order. s.18D The court must then adjourn sentencing
until at least 25 days after the day of conviction.
6.
The application proper must be made within 10 days of the conviction
of the offender, or before the expiration of any longer period fixed by
the court within that 10 day period. s.18C(1)(b) Upon the hearing of the
Director’s application for the imposition of an indefinite sentence, or
upon the listing of a court-initiated hearing, the court must give both
prosecution and defence the opportunity to lead admissible evidence
and make submissions. It must also take into consideration any victim
impact statement or pre-sentence report filed with the court. s.18F The
offender must generally be present during the hearing of evidence upon
the indefinite sentence hearing, subject to the court being entitle to
proceed in his absence where his behaviour or some other consideration
makes the hearing in his presence impracticable, but not unjust. s.18P
7.
The indefinite sentence operates to warrant the imprisonment of the
offender until a court orders his release upon a successful review
hearing. s.18M
8.
A non-parole period may not be fixed in respect of an indefinite
sentence, and the offender is not eligible to be released on parole.
s.18A(2)&(4) Instead, the court must fix a nominal sentence equal in
length to the non-parole period that it would have fixed had it sentenced
the offender to be imprisoned for a fixed term. s.18A(3) Upon the
expiry of the nominal sentence, the offender becomes eligible for
review of his sentence. The review may then be conducted upon an
application of the Director or the offender. s.18H(1). A full discussion
of the review process may be found in Director’s Policy No. 28.2,
“Director’s Policy as to the conduct of proceedings for Review of an
indefinite sentence pursuant to s.18H Sentencing Act 1991.”
9.
Upon imposing an indefinite sentence the court is required to state the
reasons for its decision and cause those reasons to be entered in the
records of the court. s.18G There is no specific requirement for the
court to state its reasons where it has refused to impose an indefinite
sentence, though the practice of sentences in this position to date has
been to state their reasons in their general reasons for sentence.
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 2
28.2
1.
Procedures prior to decision to apply for an indefinite sentence
The decision to apply under s.18A(5)(b) for the imposition of an
indefinite sentence rests with the Director.
2.
The pre-condition for consideration of this issue is that the offender has
been committed for trial for a “serious offence” as defined by s.3 of the
Act. With that condition met, the criterion for decision by the Director
is whether or not there is a reasonable prospect that the application if
made would be successful. That prospect will be assessed by reference
to the considerations discussed below.
3.
In every matter involving a serious offence under s.3, OPP solicitors &
legal executives should at an early stage give consideration as to
whether an application might properly be made for the imposition of an
indefinite sentence. In most cases it will be clear that an indefinite
sentence is not a realistic proposition. Where upon a review of the
considerations discussed below, there is deemed to be some possibility
that an indefinite sentence might appropriately be sought, advice should
be obtained from a Crown Prosecutor, as to whether the application
should formally be considered and a full “Indefinite Sentence brief”
compiled.
4.
An “Indefinite Sentence brief” should contain the following material:
(a)
A brief outline of the facts of the instant matter, and of all
relevant prior convictions which might be relied upon in any
eventual application;
5.
(b).
Any available material in respect of matters personal to the
defendant which may have been exhibited upon earlier plea
hearings, or obtained from other reliable sources;
(c).
Any available sentencing remarks in respect of the defendant;
(d).
A full account of the offender’s custodial history, including an
accurate history in respect of dates of release upon parole;
(e).
An indication of the informant’s position, and any relevant
views expressed by the instant victim(s);
(f).
The instructing solicitor’s recommendation.
Unless it is reliably established that there will be no difficulty in
obtaining the required material and information, and regardless of the
fact that guilt is contested in a matter, the compilation of an Indefinite
Sentence brief should not be delayed until the time of conviction of an
offender. OPP solicitors and legal executives should have regard to the
considerations discussed below See paragraphs under heading
Preparation of materials when assessing the necessary lead time for
preparing an Indefinite sentence brief
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 3
6.
Where an Indefinite Sentence brief has been compiled, it should be
forwarded to a Crown Prosecutor with a view to obtaining an advice for
the Director on the merits of making an application.
7.
Where a Crown Prosecutor advises that an application for an indefinite
sentence should be made upon the entering of the necessary conviction,
the brief with the Prosecutor’s advice must then be referred to the
Director for his decision. A matter should also be referred to the
Director in circumstances where a Prosecutor advises against seeking
an indefinite sentence, but that decision is likely to be a source of
external controversy (ie. where the specific issue has received publicity,
or where an informant or victim has made a strong written
recommendation for an application).
28.3
Procedures following a decision to apply for an indefinite sentence
1.
Early notice to defence
The Director’s determination to apply for an indefinite sentence is
subject to review and retraction by the Director until such time as
formal application is made in court. The contingent nature of the
Director’s determination is particularly pertinent until such time as all
relevant materials have been obtained and considered.
2.
In consideration of the contingent nature of the decision to seek an
indefinite sentence, it is the Director’s policy that the legal
representatives of a relevant defendant will not necessarily be advised
of that determination prior to the making of the application. This course
is clearly warranted by the legislation, which provides for formal notice
of intention to be provided on or after the day of conviction, and
provides for the adjournment of sentencing, and in effect, the
adjournment of submissions upon the application. The Director’s
liberty in relation to preconviction notification is discussed during the
plea in R. v. McManus, Vic County Court, 26/5/97-28/8/97. See also
Fox & Frieberg, Sentencing: State and Federal Law in Victoria, 2nd Ed,
1999, p.659
3.
Despite this liberty, it will generally be appropriate that as soon as the
Director has finally determined that an application is to be made, the
defence should be notified that an application is to be made. This
position is adopted in recognition of the importance to the defence of
the Director’s decision to apply for an indefinite sentence. Early notice
also minimises the potential for a lengthy adjournment prior to
sentence, where the defence is required to initiate late investigations
concerning the defendant that it might otherwise have initiated earlier.
4.
The question of early notice may be sensitive in both trial and plea
situations, and is a matter that should be raised with the responsible
Crown Prosecutor prior to any action. Preparation of materials
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 4
5.
An application for an indefinite sentence is made by the filing of a
Notice pursuant to s.18C of the Act, generally under cover of an
Affidavit in Support sworn by the responsible preparation officer. The
final form of the Notice and Affidavit should be settled by the
responsible Crown Prosecutor well prior to filing.
6.
The presentation of materials exhibited to an affidavit is not a statutory
requirement, but has proved to be a convenient approach, acceptable to
the court. The purpose of the affidavit is to provide to the court a full
record of the antecedent matters relied upon by the Crown in support of
its application. Where that record is incomplete, as in many matters it
will be, the affidavit should identify missing elements of the record and
confirm that the court has been provided with all material reasonably
available to the Crown. The presentation of material in documentary
form does not preclude its supplement by the oral evidence of
appropriate witnesses.
7.
The following documents should be obtained and exhibited to the
Affidavit:
(a).
The Notice pursuant to s.18C of the Act
(b).
The indictment/presentment and Further presentment/criminal
record in the matter currently before the court
(c).
In respect of each prior conviction which is relied upon as
relevant to the application (or any relevant subsequent offence)
(i.)
the indictment/presentment or charge sheet
(ii.)
the committal transcript, statements & Record of
Interview (or in a matter resolved summarily, the police
brief)
(iii.)
trial transcript
(iv.) any materials (especially psychological reports)
tendered upon the plea including victim impact
statements
(d).
(v.)
transcript of plea proceedings
(vi.)
sentencing remarks
(vii.)
any Judgment upon an appeal
In respect of each period of imprisonment or other correctionsbased supervision completed by the offender
(i.)
an accurate record of the dates of entry to and release
from custody or supervision (original records need not
be reproduced)
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 5
(ii.)
any relevant report produced by custodial or supervisory
bodies, especially those addressing evaluation of the
offender or his participation in relevant programs
(e).
Any material obtainable from the Adult Parole Board with
respect to its dealings in relation to the offender
(f).
Any other material relevant to the offender’s personal,
psychological or medical condition, including medical files
8.
A number of the materials relating to antecedent matters can be located
in old OPP work files. Staff should use PRISM to identify the relevant
matters and the location of the file. Requests for old files can be made
by email to Records. Staff should be mindful that there may be some
delay in obtaining files stored off-site. Staff are also responsible for
returning the file to Records as soon as practicable. Sentencing remarks
can be obtained from the Unreported Judgments database maintained
by the Library.
9.
The principal contact point for custodial history is the Sentence
Management Unit of Corrections Victoria, which retains a complete
record of prisoner movements in corrections custody. Current contact
details are Tel: 8684 6535, Fax 8684 6679. Information in respect of
custody from the 1990s is retained on computer, and should be
obtainable with little formality. Information in respect of earlier periods
of custody is held by the SMU off-site, and may require an early,
written request. Corrections (and its interstate counterparts) also retains
files on all current and former prisoners, variously described as
“Warrant”, “Prison”, “Classification” and “Shadow” files. These files
may contain material such as psychological reports and other
assessments of the defendant, and should be sought, by subpoena if
necessary, once it has been determined that a s.18A application will be
made.
10.
Obtaining material from the Adult Parole Board is not unproblematic.
The current position of the Board is that as a matter of public policy it
will only provide to this Office the final orders of the Board. These
orders provide the date and outcome of applications for parole, but do
not provide any indication of the material before the Board or its
reasons for decision. Further material may be advised informally by the
officers of the Board, but such material will generally be provided on
an “information” rather than a “for use” basis.
11.
Police “Antecedent Reports” may contain valuable information, but
should be examined carefully for inadmissible opinion material, and
discussed with Counsel before being exhibited to the Affidavit.
12.
In all cases OPP solicitors and legal executives should ensure that there
is a full investigation of the defendant’s offending and custodial history
in interstate jurisdictions. A standard criminal history check will
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 6
generally not reveal this history. Unless the offender’s personal history
is fully documented within Victoria (or other identified and examined
jurisdictions), your informant must be requested to obtain reports from
all interstate jurisdictions. Where the known history of the offender
indicates a period spent outside Australia, and provides sufficient
information to target international enquires, those enquires should also
be made.
13.
When the appropriate materials have been gathered it will generally be
necessary for 5 sets to be produced (Original, Office, Prosecutor,
Defence, Judge). Proceedings
14.
Section 18C(1) provides for an application by the Director to be made
after the filing of a Notice of Intention, which notice must be filed
within 5 working days of the conviction. Having received that Notice,
and having advised the offender in accordance with s.18D, the court
must adjourn sentencing until at least 25 days after the day of
conviction.
15.
In practice it is preferable that the Notice be filed with the Court on the
day of the conviction, and any supporting affidavit on the same day or
as soon thereafter as is possible.
16.
Section 18C(1)(b) provides that the application proper must be made
within 10 days of the conviction of the offender, or before the
expiration of any longer period fixed by the court within that 10 day
period.
17.
It is the Director’s policy that the formal application should be made at
the earliest possible time following the giving of Notice. Where the
material in support of the application is ready, there is no reason the
application cannot be made at the time that notice is given. The
timetable for proceedings thereafter is generally a matter for the court,
but in the usual course of events the matter will be adjourned for
submissions and any oral evidence at a later date. The s.18A application
and submissions upon the plea simpliciter will generally be conducted
as a single proceeding.
28.4
Considerations for decision
1.
2.
Opening of discretion
Section 18B(1) describes the legal threshold question for the
enlivenment of the discretion to impose an indefinite sentence. The
essential test is that the court be satisfied to a high degree of
probability, because of the considerations listed in s.18B(1)(a)-(c),
that the offender is a serious danger to the community.
The s.18B(1) considerations are:
(a)
[the offender’s] character, past history, age, health or mental
condition; and
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 7
(b)
the nature and gravity of the serious offence; and
(c)
any special circumstances.
3.
The finding of dangerousness must arise causally from all of these
considerations, though if there are no “special circumstances”, the
requisite dangerousness may be found by a consideration of the first
two matters alone. The existence of a special circumstance is not a prerequisite for a finding of dangerousness.
4.
The dangerousness of the offender is to be assessed at the time of
sentencing. The court is not required to assess here the offender’s likely
dangerousness at the conclusion of any potential definite term. See R. v.
Carr [1996] 1 V.R. 585
5.
Section 18B(2)(a), (d) & (e) describe non-exclusively matters which the
judge must have regard to in the s.18B(1) consideration of
dangerousness. Paragraphs (b) & (c) provide that the court must have
regard to specified materials, ie. “(b) anything relevant to this issue
contained in the certified transcript of any proceeding against the
offender in relation to a serious offence” and “(c) any medical,
psychiatric or other relevant report received by it;”
(a)
whether the nature of the serious offence is exceptional;
(d)
the risk of serious danger to member of the community if an
indefinite sentence were not imposed;
(e)
the need to protect members of the community from the risk
referred to in paragraph (d)
6.
The fact that a court must “have regard” to the exceptionality of an
offence does not mean that the requisite danger will not be found in the
absence of exceptionality. A particular instance of an offence may be
“exceptional” if it includes features that would attract to the offence
sterner punishment than would otherwise be meted out. Hayne J. in R.
v. Moffat [1998] 2 VR 229 at 254,255. “Exceptional” factors that have
been recognised in particular cases are listed in Appendix A.
7.
The question of whether the court is sufficiently likely to be satisfied
that an offender is, in the terms of s.18B, “a serious danger to the
community” must necessarily be decided on a case by case basis. The
following matters will be relevant to this consideration:
(a).
The nature of the instant offence as an offence likely to have a
substantial and continuing impact upon the victim, or others;
(b).
Any exceptional quality of the instant offending, particularly as
relates to wantonness of offending, vulnerability of victim and
severity of impact;
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 8
(c).
A pattern of repeat offending within the offender’s history,
involving offences of a similar nature, and similar or greater
gravity;
(d).
An assessment by relevant experts that the instant and earlier
offending is attributable to a consideration personal to the
offender; such as an intellectual deficit, a personality disorder,
aberrant sexuality, or a psychiatric condition, which
consideration remains operable upon the offender’s behaviour;
(e).
Failure by the offender to participate in or benefit from
counselling or other relevant treatment programs available in the
past;
(f).
A poor prognosis in respect of the offender’s capacity to modify
his behaviour in the future. Onus and Standard of proof in
assessment of dangerousness
8.
The standard of proof to be applied in the assessment of s.18B
dangerousness is satisfaction “to a high degree of probability.” This
standard “lies somewhere between the criminal and civil standards”.
Hansard, Legislative Assembly, 29 April 1993, p.1355 Second Reading
Speech, the Sentencing (Amendment) Act 1993). In the cases that have
already been the subject of s.18A applications by the Director, it is
strongly arguable that the requisite present dangerousness could well
have been found proved beyond a reasonable doubt. The onus of proof
rests with “the prosecution”. s.18B(3) Exercise of discretion
9.
Where the court has determined that a relevant offender is a serious
danger to the community, a discretion to impose an indefinite sentence
is enlivened. A contrary position was disposed of in Moffat at p.234,
where Winneke P. dismissed the (unadvocated) view that the words of
s.18B(1) create a disposition that is mandatory once the threshold
question of dangerousness has been positively resolved.
10.
It is the Director’s policy that where an offender is found to be in the
terms of s.18B, “a serious danger to the community”, and where the
court is satisfied that at the end of any available definite term there is a
high degree of probability that the offender will remain such a danger,
then it is appropriate that an indefinite sentence be imposed upon that
offender.
11.
This policy is informed by the following considerations of principle:
(a).
Protection of the community is the principal purpose for which
sentence is to be passed
Where an offender is found to be a “serious danger to the
community”, the principal purpose of sentencing is the
protection of the community. Where the offender, coincidentally, has qualified as a serious offender and his offence
is a relevant offence, in terms of Part 2A of the Act, then the
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 9
elevation of protection of the community follows by application
of s.6D of the Act. It is anticipated that the majority of cases
where s.18A is invoked will involve offenders who
independently qualify to be considered under Part 2A, and thus
s.6D. In cases where an offender qualifies to be considered as a
“serious danger to the community”, but not as a Part 2A
“serious offender” it is the Director’s policy that protection of
the community remains to be considered as the principal
sentencing purpose. This conclusion is supported by the terms
of the Attorney-General’s Second Reading Speech, which
describes the indefinite sentence provisions as “…a scheme of
preventative restraint for the protection of the community…”.
Second Reading Speech, p.1355 It is also implicit in the
provisions of s.18B. An element integral to the consideration of
the demands of community protection is the prediction of future
dangerousness, discussed below.
(b).
The principle of proportionality does not apply
The analysis above also leads to the conclusion that a court, in
considering the discretion to impose an indefinite sentence, is
not bound by the principle of proportionality, and is entitled to
impose a sentence that is longer than one which would be
proportionate to the instant offence. Where the offender is
qualified to be sentenced as a Part 2A “serious offender”, this
conclusion follows as a consequence of s.6D(b). Where the
offender is not to be sentenced as a “serious offender”, this
follows from a reading of s.18B as reinforced by the AttorneyGeneral’s Second Reading Speech. Preventative restraint is not
compatible with the principle of proportionality, and the
overriding of that principle by this legislation, and the
legitimacy of that overriding were recognised by the court in
Moffatt. See Hayne J at 255
(c).
The principle of parsimony does apply
The general principle of parsimony in sentencing, as articulated
in s.5(3) of the Act, is applicable to the exercise of the s.18A
discretion. The court is required to impose the least severe
sentence available that is consistent with the offence committed
and the purposes for which the punishment is to be imposed.
The operation of this principle is itself significantly moderated
by the elevation of protection of the community as the principal
sentencing purpose. It is clear that a s.18A indefinite sentence
will almost always be a more severe sentence than the definite
sentence that might otherwise be imposed in its place. By
operation of s.18A(3) the court is required to fix a nominal term
equal to the non-parole period that would have been fixed had
the court imposed a fixed term disposition. It is not open for a
court to provide a less severe penalty by discounting the
“minimum term” part of the order for an indefinite sentence.
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 10
Where an offender found to be a “serious danger to the
community” is qualified to be treated as a Part 2B “serious
offender”, the court must consider whether a definite sentence,
disproportionate to the seriousness of the offence pursuant to
s.6D and with appropriate accumulation pursuant to s.6E, will
be sufficient to meet the requirements of community protection.
See for example R. v. McManus, Unreported sentencing
remarks, Vic County Court 29-8-97 at 385, 386
(d).
Prediction of future dangerousness is relevant to the exercise of
the discretion but does not involve a finding of sentencing fact
An assessment of future dangerousness is not required for the
activation of the s.18B discretion (see discussion above).
However, that assessment is clearly fundamental to the question
of the measures required to protect the community from a
particular offender. Where it can be predicted that an offender
will be so rehabilitated or incapacitated at the end of a definite
sentence that he will no longer be a serious danger to the
community, communal protection will not demand the
imposition of an indefinite sentence, and the principle of
parsimony will in fact require the imposition of a less severe
disposition. Where it is predicted that the serving of a definite
term offers an inadequate prospect that the offender will either
be reformed or incapacitated, then it follows that the goal of
community protection can only be satisfied by the imposition of
an indefinite term. In determining as part of this endeavour the
question of future dangerousness, the court is not making a
discrete finding of sentencing fact, but rather is engaged in one
part of its discretionary synthesis – assessing the requirements
of community protection. It therefore is not bound by the rules
regarding standard of proof of sentencing facts, as articulated in
Storey’s case. R. v. Storey [1998] 1 V.R. 359 While a finding as
to future dangerousness does not amount to a finding of
sentencing fact (for there is no fact, just a prospect) it is
convenient for the court to consider the issue by reference to a
standard. The “high degree of probability” standard articulated
in s.18B(1) is not strictly applicable to this endeavour, as it
clearly relates only to the discrete threshold question raised by
that section – “is the offender currently a serious danger to the
community?”. However, in explaining that standard, the then
Attorney-General clearly (and applying Carr, incorrectly)
considered that an assessment of prospective dangerousness was
relevant to that threshold question. We now understand that
question to arise only as a consideration in the exercise of the
discretion. In these circumstances, it is not inappropriate that the
court take guidance from the intention of the legislators, and
apply this middle standard here.
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 11
28.5
(e).
The s.18A disposition is not reserved only for offenders who
have no potential for reformation
The existence of the s.18H review procedure affirms that the
indefinite sentence regime is intended not merely to provide for
the “warehousing” of hopelessly dangerous individuals, but also
to provide an appropriate disposition for dangerous offenders
who have a potential for reformation. In considering the effect
of a prospect of rehabilitation or “cure” that is adjudged to be
real but minor, the court should have full regard to the capacity
for any such rehabilitation to be recognised and
acted upon in the proceedings conducted pursuant to s.18H.
(f).
The question of “exceptionality” is not an independent basis for
refusal to exercise of the discretion
A further “principle” articulated in respect of indefinite
sentences is that the disposition is to be reserved for exceptional
cases. In Moffat, Winneke P. stated the power to impose an
indefinite sentence is one to be “exercised sparingly and only in
exceptional cases where the nature of the offence viewed in the
context of the offender’s past history and/or criminal disposition
compels the court to the conclusion that the offender is a serious
danger to the community.” Moffat at 234 To similar effect,
Hayne JA stated that the disposition is to be imposed in “…few
(perhaps very few) cases…” and further, the powers under
s.18A “are to be sparingly exercised, and then only in clear
cases”. Moffat at 255 It is the Director’s policy that offenders
assessed as posing a s.18B “serious danger to the community”,
and in respect of whom no discretionary protections arise, will
be of such a select and exceptional group, that there is no
requirement for the group to be further winnowed by the
application of a secondary form of dispositional parsimony.
Imposition of sentence
When a court has determined that an indefinite sentence is to be
imposed in respect of one or more serious offences, a selection of the
following issues will generally arise for resolution by the tribunal.
These are matters that will only arise irregularly before any court, and it
is the Director’s policy that the Prosecutor appearing on his behalf
should be prepared to assist the court with full submissions as to each
of these issues.
28.5.1 Determination of the nominal sentence
Generally
1.
Section 18A(3) provides:
“The court must specify in the order imposing an indefinite sentence a
nominal sentence of a period equal in length to the non-parole period
that it would have fixed had the court sentenced the offender to be
imprisoned in respect of the serious offence for a fixed term.”
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 12
2.
The legislation is otherwise silent as to how the “nominal sentence” is
to be calculated. This is problematic, even where the only sentence to
be imposed by the sentencing judge is the indefinite sentence. Having
regard to s.18A(3), the sentencing court is required to determine a
notional non-parole period. It is the Director’s policy that it is
appropriate for a court to determine this figure by undertaking a
standard sentencing exercise; ie. by determining a notional fixed term,
and from that foundation, determining the notional nonparole period.
3.
The notional fixed term, like the notional non-parole period, is the
sentence that would have been imposed had a fixed, rather than an
indefinite term been imposed. It is the Director’s policy that in this
exercise the court should have regard to the sentencing considerations
relevant to sentencing a serious offender for a serious offence, but
independently of the maximum penalty otherwise fixed by Parliament.
4.
To include penalty maxima in this consideration would generally
produce low nominal sentences where the applicable maxima are
themselves low, as is the case in respect of offences contrary to s. 56
Crimes Act 1958 Maximum imprisonment 5 years and ss.20, 40 or 55
Crimes Act 1958. Maximum imprisonment 10 years Further, by
operation of s.11(3) of the Act, the nominal sentence to be fixed in any
matter would arguably be limited absolutely to a period of 6 months
less than the maximum penalty for that offence. See Fox & Freiberg
p.663 The limitation anticipated by this analysis appears to be contrary
to the legislative policy behind s.18A, which creates a separate
sentencing regime independent of prescriptive penalty maxima. That
policy is articulated in s.18A(6), which provides:
“A court may impose an indefinite sentence in respect of a
serious offence regardless of the maximum penalty prescribed
for the offence.”
5.
The principal effect of this provision is declaratory, confirming that the
existence of a maximum penalty is no bar to the imposition of an
indefinite sentence. However s.18A(6) also provides support for the
view that a nominal sentence, which is a necessary and inalienable part
of the imposition of an indefinite sentence, may be specified without
reference to penalty maxima.
6.
Multiple indefinite sentence, single nominal sentence
Where multiple indefinite sentences are imposed in respect of multiple
offences in the one sentencing exercise (see below), the legislation is
silent as to how the requirements under s.18A(3) with respect to the
nominal sentences are to be met. It is clearly preferable that a global
approach be authorised, and a single nominal sentence be imposed in
respect of all the notionally separate indefinite sentences. This practise
has been followed in the sentences imposed to date, and is consistent
with the procedure to be followed where under s.11(4) of the Act a nonparole period is to be imposed in respect of multiple definite sentences.
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 13
7.
Necessarily, there is no common law requirement that an individual
nominal sentence must be fixed in relation to each indefinite sentence,
and there is likewise no prohibition on a single nominal sentence being
applied to multiple indefinite sentences. However, the wording of
s.18A(3) does present a difficulty by its reference in the singular to
“…the serious offence”. By the natural reading of s.18A(3), the
nominal sentence is that which is appropriate to the individual offence,
not to all relevant offences viewed globally. As a consequence, a
separate nominal sentence should arguably be imposed in respect of
each indefinite sentence. Potentially, those separate nominal sentences
could be of different lengths, though the significance of the common
history of the offender in the wider scheme would be such as to
authorise a high degree of uniformity. A non-global approach would
encourage the proliferation of superfluous orders and would generally
be undesirable having regard to the operation of s.18G. It is the
Director’s policy that the current judicial approach, wherein a single
nominal sentence may be fixed for multiple indefinite sentences
imposed at the one time, is to be persisted with.
8.
Where multiple indefinite sentences are imposed in different hearings, a
new nominal sentence must be fixed in respect of any later imposed
indefinite sentence. The machinery for fixing a global non-parole
period found at s.14 of the Act is not replicated in respect of indefinite
sentences. Theoretically, an offender could be subject to multiple
nominal sentences, and while entitled to release following a favourable
review at the end of an earlier sentence, remain subject to continued
custody pending review at the conclusion of an incomplete nominal
sentence. See Fox & Freiberg, p.663
9.
10.
Nominal sentences and definite terms
A court imposing one or more indefinite sentences will commonly
dispose also of counts which have attracted separate definite sentences
(see below). When determining the notional non-parole period from
which the nominal sentence is to be derived in such a case, and having
proper regard to s.18A(3), only the offences in respect of which
indefinite sentences are to be imposed are relevant. Any definite terms
imposed by the court cannot be taken into account, and more
particularly, the court should not undertake any process of notionally
cumulating from these terms into the notional head sentence used to
determine the nominal sentence.
Pronouncement and Recording of Sentence
It is unnecessary and potentially confusing for a sentencing judge to
describe in the reasons for sentence a notional fixed term determined
for the purpose of calculating the nominal sentence. Should the judge
announce such a figure, prosecutors and solicitors should seek to ensure
that it is not capable of misinterpretation as being a part of the sentence
proper.
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 14
28.5.2 Multiple sentences
1.
Where a court has determined to impose an indefinite sentence upon an
offender in respect of a “serious offence” under s.3, it may well also be
required to sentence that offender for additional offences.
2.
3.
Multiple s.3 “serious offence” offences
Where those other matters are also s.3 “serious offences”, the court
must consider independently whether an indefinite sentence should also
be imposed upon those counts. Where the other offences are of like
nature and gravity to the first offence, it is likely that this independent
consideration will result in all relevant offences being subject to
indefinite sentences. Where the other offences are dissimilar to the first
offence, and to other offending or behaviour relied upon in
consideration of relevant factors described below, then the court may be
required to impose a fixed sentence in respect of the other s.3 “serious
offences”.
Multiple indefinite sentences
Where a court determines that an indefinite sentence is to be imposed in
respect of more than one offence, it is the Director’s policy that,
technically, a separate indefinite sentence should be imposed for each
such offence. This situation has arisen in each case where an indefinite
sentence has been imposed to date. In Moffat and Carr, the language
used by the sentencing judge was ambiguous as to whether individual
indefinite sentences were imposed, or whether a single indefinite
sentence was imposed in respect of all identified indefinite sentence
counts. In R. v. Carolan, Vic County Court, 25-2-2000 & 9-3-2000 the
sentencing judge sentenced the offender “on each of counts 7 & 8 to be
imprisoned for an indefinite term”, suggesting that individual indefinite
sentences had been imposed. In each case orders for concurrency were
made leaving any ambiguity of no effect. This sentence is the subject of
a pending appeal to the Court of Appeal.
4.
The Act is silent on this issue, but the approach of imposing separate
terms is consistent with the basic common law principle that a separate
sentence must be imposed for every count on a indictment/presentment.
It is also consistent with the practise in respect of offenders sentenced
to multiple life terms.
5.
Where multiple indefinite sentences are imposed in respect of multiple
offences, it is the Director’s policy that they must be concurrent. Again,
this is consistent with the practise in respect of multiple life sentences.
6.
Sentencing orders including both indefinite and definite terms
Where an offender sentenced to an indefinite sentence has also been
presented for offences in respect of which an indefinite sentence is not
to be imposed, the legislation is silent as to how the sentences under the
contrasted schemes are to be combined.
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 15
7.
In a standard sentencing exercise involving multiple periods of
imprisonment imposed in respect of different counts, the following
rules apply. Individual terms must be fixed in respect of each offence
on the indictment/presentment. The principles in respect of concurrency
and cumulation are applied to determine a single aggregate head
sentence, covering all periods of imprisonment imposed in the same
order. A single non-parole period is then fixed, “in respect of the
aggregate period of imprisonment that the offender will be liable to
serve under all the sentences then imposed.” s.11(4) Sentencing Act
1991 Where a sentence of 2 years or more has been imposed, a nonparole period must be fixed unless the “the nature of the offence or the
past history of the offender make the fixing of such a period
inappropriate”. s.11(1) Sentencing Act 1991
8.
It is clear that where an indefinite sentence has been imposed, the court
is still required to dispose of all other counts by the imposition of
individual terms. It is the Director’s policy that such terms should
generally be made concurrent with the indefinite sentence. They cannot
be cumulated upon the indefinite sentence, for that is a logical
impossibility. It would also conflict with the approach taken by the
courts in respect of definite terms imposed at the same time or after life
sentences. See Tsakmakis (1986) 19 A Crim R 383 and also R. v.
Adajian [1999] VSCA 105 The fixed terms should not be cumulated
upon each other, for the only purpose for doing so would be to produce
a secondary aggregate term, which will generally have no effect. In
Carolan Judge Wodak did take this approach, cumulating periods of the
fixed terms to create an “effective sentence” additional to the individual
fixed terms and indefinite sentence imposed. The significance of that
sentence was not explained. A failure to cumulate such terms in
sentencing a Schedule 1 serious offender in respect of relevant offences
would not offend against s.6E of the Act, for that provision leaves
wholly intact the discretion of the court not to direct cumulation in an
appropriate case.
Non-parole period in respect of fixed terms
9.
Similarly, it is the Director’s policy that a non-parole period should not
generally be set in respect of any aggregation of fixed terms imposed at
the same time as an indefinite sentence. Under s.18A(2), a non-parole
period cannot be fixed in respect of the actual indefinite sentence, and
under s.18A(4), an offender serving an indefinite term cannot be
released on parole. In relevant cases the court, despite s.18A(2), might
generally be regarded as required under s.11(1) to fix a non-parole
period in respect of the fixed term sentences. However s.11(4) operates
to require that any such period be fixed by reference to all sentences of
imprisonment imposed, which must necessarily include any indefinite
sentence. It is the Director’s policy that this has the effect of attaching
the s.18A(2) prohibition to the whole aggregation of offences and
sentences, and thus, by specific reference, overriding the general
provision at s.11(1). It might alternatively be argued that s.11(4) has the
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 16
effect of drawing the circumstances of the indefinite sentence offence,
and the history of the offender relevant to that offence, into the issue
under s.11(1) of the appropriateness of fixing a non-parole period. Thus
where an indefinite sentence has been imposed, the court will generally
be entitled to consider that it would be inappropriate, having regard to
the test stated in s.11(1), to fix a non-parole period.
10.
This outcome, wherein no “aggregate fixed term” is calculated, and no
nonparole period fixed in respect of that term, will be unproblematic in
most cases. The exception may arise where an offender is sentenced to
an indefinite sentence with a relatively low nominal sentence, where
relatively long fixed terms are imposed, or where, by proper application
of principles in respect of cumulation, a substantial aggregate period
might ordinarily be imposed.
11.
Where a nominal sentence imposed is less than concurrent fixed terms,
the offender may serve the term of his nominal sentence and obtain a
successful review, yet find himself still detained until the exhaustion of
all fixed terms. This will be seen as an appropriate result, except where,
but for the operation of s.18A(2), the offender would appropriately have
had the benefit of a non-parole period shorter than his nominal
sentence. In such a case it would appear appropriate that the offender
attain release under s.18M upon a successful review of his indefinite
sentence. The legislation does not however provide for this result.
12.
It may also be considered that it is contrary to the interests of justice
that cumulation be unavailable in the (unlikely) case where an
appropriate nominal sentence will not “cover” the criminality of other
offending. It is the Director’s policy that this outcome is to be avoided
by appropriate selection of offences in which the indefinite sentence
disposition is sought.
28.5.3 Other matters
1.
2.
Indefinite sentences for Murder
The offence of Murder carries a maximum penalty of Life
Imprisonment. It is also a s.3 “serious offence”, and thus an offender
convicted of Murder is alternately liable to be sentenced to serve a
s.18A indefinite sentence.
In every case where a defendant stands to be convicted of Murder, full
consideration should be given to whether an application should be made
for an indefinite sentence. It may be generalised that an indefinite
sentence is most likely to be appropriate where the circumstances of the
offender are of unusual consequence as compared to the circumstances
of the instant offending. It is unusual for murderers and their offences
to fit this profile, and it is anticipated that it will be unusual for an
indefinite sentence to be sought as a disposition for murder.
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 17
3.
4.
Retrospectivity
The provisions of Subdivision 1A commenced operation on 15 August
1993, but the indefinite sentence regime appears to have full
retrospectivity. By part (d) of the s.3 definition of “serious offence”, the
sanction is specifically applied to offences committed contrary to
provisions of the Crimes Act 1958 that were repealed prior to the
commencement of the indefinite sentence provisions. Analysis in terms
of s.114(1) of the Sentencing Act is not relevant, as the regime does not
raise penalty maxima. It may be noted here that the relative staleness of
an “old” serious offence will be an important factor in the Director’s
consideration of the merits of an indefinite sentence application.
Appeal
A sentence of imprisonment constituted by an indefinite sentence may
be appealed to the Court of Appeal in the same way that any other, nonmandatory sentence may be appealed. Similarly, the Director’s general
right of appeal in respect of sentence must be applicable to cases where
the “other sentence” sought by the Director is an indefinite sentence. It
may be noted here that the restrictions placed by the courts on Crown
appeals, and the peculiar nature of the exercise of the sentencing
discretion in respect of indefinite sentences, create a particularly
infertile environment for appeals targeted at defeating a decision not to
impose an indefinite sentence.
Serious Sex Offenders (Detention and Supervision) Act 2009
5.
In accordance with section 26(1) of the Serious Sex Offenders
(Detention and Supervision) Act 2009, it is the Director’s policy that the
Secretary to the Department of Justice must be notified as soon as
practicable if an indefinite sentence is imposed on an offender who is
subject to a supervision order.
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 18
APPENDIX A
Consideration of s.18B(2)(a) “exceptionality” in decided cases
Kevin John Carr
Sentence of Judge F. B. Lewis, 25/5/95 – “…I think that the offence is
exceptional –the rape of a 77 year old woman by a 36 year old man.”
Court of Appeal, Judgment of the Court, 19/12/95 (p.593) – “…the
applicant carried out a violent and horrifying assault and rape upon a
woman 77 years old, causing her great physical suffering and extreme
mental anguish… H.H. entitled … to conclude that the offence was
exceptional.”
Geoffrey John Moffatt
[40 yr old female victim seized by Moffatt on public bicycle path at 8
a.m. and raped in nearby bushes, by way of digital and penile
penetration of her vagina, and oral penetration with penis. Rapes
accompanied by violent handling and threats to kill. Effect on victim
included failure of participation in in vitro fertilisation program, post
traumatic stress syndrome, and concerns regarding potential “vaginal
infection”.] Sentence of Judge Stott, 20 June 1996 – “..I am further
satisfied that the nature of the three counts of rape is exceptional. It is
exceptional by reason of the time of day and place ay which it occurred,
the number and nature of the sexual acts persisted in , the associated
violence and the profound effect on the victim.” (p.66) Judgment of
Hayne JA at 255 – “The bare fact that the victim was attacked at a
particular hour or on a particular day of the week is not enough to make
the nature of the offence exceptional… [but] In my view it was open to
the judge to find that to attack a woman in a public place in broad
daylight and rape her a few metres away from a foot and bike path,
using the threats and violence which this applicant did, made the nature
of this offence exceptional.”
Joseph Bill Snabel
Sentence of Judge Nixon, 24 April 1997 at p.29 “…I am satisfied that
the nature of each attempted abduction was exceptional…So far as
Count 1 is concerned you attempted to abduct a 17 year old school girl
in the street, and to take her to your car, which you had parked
strategically nearby. She was wearing a school uniform and was on her
way home in broad daylight from her school grounds…the offences
involved threats and violence and in this instance clearly a measure of
planning. So far as Count 2 is concerned you again attempted to abduct
a 17 year old girl who was also wearing her school uniform on her way
home in broad daylight from her school grounds. The attempted
abduction occurred beside the roadway leading from the grounds of
Geelong Grammar School… and the offence involved some violence.”
[H.H. declined to impose an Indefinite sentence, finding that
unexplored treatment options would better be implemented in the
context of a definite sentence.]
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 19
Leslie John McManus
Sentence of Judge Walsh, 28 August 1997, p.384 “In the present case I
am satisfied that the nature of each of the offences of attempted rape
(counts 2 & 3) was exceptional. I have reached that conclusion for the
following reasons:
1.
Each of the offences was purpetrated upon a female aged 80
years;
2.
The offences were perpetrated within her own home in the
course of a prolonged period of nocturnal false imprisonment;
3.
They were committed by you after you had entered the home of
the victim at her invitation.
The concept of safety and security of the home of a member of the
community involves his or her right to admit only those who are trusted
to be worthy of the privilege of admission. Where an offender
establishes the trust of an otherwise defenceless member of the
community to the extent that he is invited to enjoy the sanctity of her
home and then suddenly becomes an instant predator who places her in
a position of serious danger, then, in my view, the nature of the offence
is exceptional.”
[H.H. declined to impose an Indefinite sentence, giving weight to
McManus’ prospects or rehabilitation]
Colin George McKane
Sentence of Judge Hart, 5 October 1998 (Appeal abandoned following
Court of ppeal indication that it could reconsider the imposition of an
indefinite sentence), McKane found to be “a serious danger to the
community” despite the fact that his ffending revealed no exceptional
circumstances. 1 Count each of Abduction and ndecent assault,
involving continuous act of picking up a child on the street, and ondling
her vagina through her trousers. H.H. declined to impose an indefinite
entence (p.26) because consider a sentence with full application of
serious sexual ffender provisions capable of sufficiently protecting the
community.]
Anthony John Carolan
Sentence of Judge Wodak, 25 February 2000 (Appeal pending) p.34 “In
each of [the two sexual penetrations offences], the age of the victim,
who was then about 7, in contrast to your then age of about 47, the
environment in which you offended against her, at a voluntary working
bee of members of the church congregation you had recently become
involved with, the fact that you had moved your victim from room to
room until locating her in a place in which you were able to commit
these serious offences, that you did so whilst she and you were in close
physical proximity to her mother, and others at the working bee, are
common [to the two offences], and all are features which make each of
these offences exceptional. With respect to count 8, there is the
additional feature, in that I am satisfied that you used physical coercion
on the victim. It is this distinct feature of this offence which adds to the
exceptional circumstances and renders it the more heinous.”
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 20
Andrew Timothy Davies
Sentence of Judge White, 12 December 2002. Sentenced to indefinite
sentence with nominal period of 11 years. Sentence appeal of 21 April
2005 successful, indefinite sentence set aside. Judge White at first
instance: “Unfortunately, the predictions of potential reoffending have
come to pass with this serious sexual offending. As at this time the time
of sentencing, I am satisfied to a high degree of probability that the
prisoner is a serious danger to the community. This finding is on the
basis that the prisoner’s character, particularly with his little insight,
empathy, lack of remorse and a lack of willingness to utilise treatment
and assistance offered, his past history, his age, being some 33 years,
with potential for further offending and the nature and gravity of these
serious offences. The court has regard to the exceptional nature of these
serious offences, the transcript of the sentencing remarks of Judge
O’Shea at Morwell County Court on 5 October 1993, the medical and
psychiatric reports, together with parole reports, the risk of serious
danger to members of the community if an indefinite sentence were not
imposed and the need to protect members of the community from such
risk.” Charles & Nettle JJA on appeal: “The power to sentence for an
indefinite period is, as has already been seen, one that the courts have
repeatedly stressed must be confined to very exceptional cases. The
applicant’s prior criminal history was quite different from that of Carr,
Moffatt and Carolan. He had spent a much shorter time in prison than
had they. In our view the judge was, with respect, in error in concluding
that in all the circumstances an indefinite sentence should be imposed.”
William Craig Forde
Sentence of Judge Wodak, 13 December 2006. Indefinite sentence,
nominal 17 years. “You offended during daylight and without any
disguise. You began these offences in a shop in a busy main street of a
large regional city. At one point, you walked the victim from the shop
to her car, in that street, in front of witnesses, who saw you and the
victim and were sufficiently suspicious that one of them noted the car
registration details. Throughout her ordeal, the victim was trussed up
for most of the time, and often naked, or with her clothing disarranged,
whilst you subjected her to indignity after indignity, and ignored that
she was menstruating at the time. Whether in the shop where the
offending commenced, or in the car, or in remote locations you did as
you liked, and continued to do so against a victim who could not resist
you or defend herself. You were armed with a knife, and threatened the
victim with it. I consider that the nature of your serious offending is
exceptional, in the sense discussed by Hayne J A in R v Moffatt.”
DIRECTOR’S POLICY APPLICATION FOR THE IMPOSITION OF AN INDEFINITE SENTENCE 21