Veen v R [1979] HCA 7; (1979) 143 CLR 458 (28 February 1979)

HIGH COURT OF AUSTRALIA

VEEN v. THE QUEEN [1979] HCA 7; (1979) 143 CLR 458

Criminal Law (N.S.W.)

High Court of Australia
Stephen(1), Mason(2), Jacobs(3), Murphy(4) and Aickin(5) JJ.

CATCHWORDS

Criminal Law (N.S.W.) - Manslaughter - Sentence - Principles - Diminished responsibility - Protection of community - Punishment - Imprisonment - Preventive detention - Defences of provocation and diminished responsibility - Responsibility of judge to ascertain ground of verdict of guilty of manslaughter - Crimes Act, 1900 (N.S.W.), s. 23A (1).

HEARING

Brisbane, 1978, June 1;
Melbourne, 1979, February 28. 28:2:1979
APPEAL from the Supreme Court of New South Wales.

DECISION

1979, February 28.
The following written judgements were delivered: -
STEPHEN J. Having had the opportunity of reading the judgment of Jacobs J., courts and in those in New South Wales, with the conclusions he expresses concerning those authorities and with his Honour's statement of principle based upon these conclusions. I can accordingly confine what I have to say to some considerations affecting the sentence which was imposed in this case and to aspects of the learned trial judge's reasons for that sentence. (at p461)

2. The preliminary question, whether special leave to appeal should be granted, may be disposed of quite shortly: it clearly should be, the case raises issues of general public importance and other judgments sufficiently explain the exceptional nature of the case which suffices to set it apart from the general run of appeals against sentence. I would grant special leave to appeal. (at p461)

3. Charged with murder, the applicant was acquitted of that charge but was convicted of manslaughter, the jury indicating that it accepted the applicant's plea of diminished responsibility. Both provocation and diminished responsibility were issues at the trial. The applicant, aged twenty, had a long record of previous convictions, only one of which, however, a Children's Court conviction for malicious wounding when aged sixteen, involved violence. He was sentenced to life imprisonment. (at p461)

4. In imposing that sentence the trial judge described the prisoner as having "a serious abnormality of mind" when he killed his victim, adding that he apparently had "a similar abnormality of mind" when he committed his previous act of violence, some four years earlier. His Honour apparently accepted the jury's finding of diminished responsibility as an acceptance by them of evidence given by a psychologist called by the defence that this abnormality arose from some brain damage, cause unknown: he then, in effect, adopted this view as his own, concluding that the applicant "if and when released, will, whilst he suffers from this brain damage, be likely sooner or later to kill or seriously injure one or more other human beings. There is no suggestion that his condition is curable, or in any way responsive to treatment". (at p461)

5. This led his Honour to the stark conclusion that "punishment will not deter him" and that the ordinary principles of punishment did not apply: the prisoner had "to be imprisoned for the protection of the community from his own uncontrollable urges". (at p461)

6. The sentence of life imprisonment passed on the applicant may indeed, for him, mean imprisonment for his lifetime if what the trial judge said in sentencing him is taken into account on the question of release. While strongly recommending full psychiatric assessment and treatment "if upon assessment such treatment appears to be warranted" and hoping that his case would be reviewed periodically, his Honour also said that his condition was not curable and that there was little doubt but that, if ever released, he would be likely to kill or seriously injure one or more other human beings, so that on release, even after many years, it remained "the probability that he will again commit a crime of serious violence". Such findings offer little encouragement for any favourable consideration of his release in the future. (at p462)

7. The full severity of the sentence passed on this man of twenty lies, then, not merely in the fact that it is a sentence of life imprisonment, the most severe sentence which may now be imposed in New South Wales, treason and piracy apart, but that if what was said in sentencing the applicant has any influence upon the question of his ultimate release under s. 463 of the Crimes Act, 1900-1974 (N.S.W.), it must be to defer it beyond the average term in fact served in New South Wales by those sentenced to life imprisonment, or whose death sentences are commuted to life imprisonment, some sixteen or seventeen years - Freiberg and Biles, The Meaning of Life (1975), pp. 53 et seq. Yet this applicant was convicted of manslaughter, not murder: the jury had found that the killing of which he was guilty was done when he "was suffering from such abnormality of mind . . . as substantially impaired his mental responsibility" (Crimes Act, 1900-1974, s. 23A (1)): he was one of whom the trial judge could say: "Indeed I do not think that it can properly be said, as I interpret the jury's verdict, that the prisoner should undergo punishment". (at p462)

8. The severity of the sentence is, of course, readily explained by what I have already quoted from the trial judge's reasons for sentence. As his Honour said, "the only principle of sentencing that I can apply is that the community is entitled to be protected from violence". It is clear that it was the predominant weight which his Honour gave to this consideration that led him to impose the sentence he did. (at p462)

9. This raises two quite distinct questions. The first is whether the evidence before him justified the conclusion that the applicant was, and would probably always remain, a source of danger to the community. The second is whether, even if that conclusion were justified, a sentence of life imprisonment could, in the present case, properly be imposed, having regard to the principles discussed in the judgment of my brother Jacobs. It is to the first of these questions that I now turn. (at p462)

10. The learned trial judge had before him a variety of evidentiary material bearing, or which might be thought to bear, upon the question whether the applicant would in the future remain a danger to the community. There was his past criminal record: a considerable number of offences, committed over some five years, some involving cars and others housebreaking and stealing. The one prior conviction involving violence, when he was sixteen, was his unprovoked stabbing of the landlady of the boarding-house where he was living; he had at the time been drinking heavily. Then there were the circumstances of the crime with which he was charged, involving as it did prolonged violent attack on the victim while at the same time possessing features which at least opened the door to a plea of provocation. There was character evidence, generally favourable to the applicant but which spoke of the social difficulties which the applicant, an aborigine, experienced in his relations with the community. There was also brief police evidence as to antecedents and evidence that he had twice attempted suicide. Finally there was the evidence of two expert witnesses, the defence's psychologist and the prosecution's psychiatrist. (at p463)

11. The evidence of these expert witnesses was essentially directed to the issue of whether the plea of diminished responsibility should be upheld and on this issue they differed. The jury, in accepting that plea and returning a verdict of manslaughter, apparently preferred the psychologist's evidence to that of the psychiatrist. However, apart from this narrow issue, their evidence also dealt quite generally with assessments of the applicant and his behaviour. (at p463)

12. The learned trial judge appears to have relied largely upon the evidence of the psychologist for his conclusions as to the future dangerousness of the applicant. That psychologist had seen the applicant on one occasion only, just before the trial began. He administered a variety of intelligence and other psychological tests and from their results, principally, it seems, because the applicant was shown by the tests to be of high intelligence yet had poor short-term memory and concentration powers, he concluded that something was physically wrong with the applicant's brain. From personality tests he inferred that the applicant had a sound personality structure. The effect of the inferred brain damage was, he thought, to weaken emotional control in this otherwise normal individual so that when severely provoked or drunk he might react with uncontrolled aggression. The prosecution's very experienced psychiatrist, the consultant psychiatrist to the Crown in forensic matters, denied the ability of any psychologist to make a diagnosis in this case, criticized aspects of the psychologist's test procedures and rejected the conclusion that there was any brain damage. He had seen the applicant upon a number of occasions and concluded that he had a personality defect in the form of a character disorder but that he suffered from no impairment of mental responsibility for his acts. (at p464)

13. Because the jury upheld the plea of diminished responsibility the trial judge seems rather to have treated this as involving a general acceptance of the psychologist's evidence, for that reason relying extensively upon that evidence in sentencing the applicant. With so much, in his Honour's view, turning upon the future and upon how the applicant might be expected to behave towards others, it was scarcely satisfactory that in the sentencing process the fate of the applicant, whether or not he should remain in prison for at least very many years and perhaps for the rest of his life, should depend upon psychological testing on one occasion and upon the conclusion drawn from those tests by one psychologist, particularly when the validity of those conclusions was attacked both in detail and in general by the Crown psychiatrist. Even if the Crown psychiatrist's far-reaching criticism of the use made of the psychological testing were to be disregarded, the extent of investigation upon which the applicant's prognosis was based, one afternoon of psychological tests, cannot be described as other than superficial. Although the jury, in returning what they would no doubt have regarded as the more merciful of the two verdicts of guilty open to them, must be taken to have accepted the psychologist's conclusion that this was a case of diminished responsibility, that hardly required any general acceptance by his Honour of the psychologist's prognosis. (at p464)

14. No doubt the whole question of prediction of behaviour in the future is a most difficult one. Its very difficulty is in itself a potent reason against undue weight in sentencing being given to the protection of the community from what is predicted as the likely future violence of the convicted person. Predictions as to future violence, even when based upon extensive clinical investigation by teams of experienced psychiatrists, have recently been condemned as prone to very significant degrees of error when matched against actuality; Professor Norval Morris provides striking instances in "The Future of Imprisonment: Towards a Punitive Philosophy" Michigan Law Review, vol. 72 (1974) 1161, at pp. 1164-1173. A later study, by Steadman and Cocozza, "Psychiatry, Dangerousness and the Repetitively Violent Offender" Journal of Criminal Law and Criminology, vol. 69 (1968) 226, reaffirms Professor Morris' scepticism concerning psychiatrists as predictors of future violent behaviour. However if such, perhaps uncertain, predictions are nevertheless to be employed as aids in sentencing, they should at least be the result of thorough psychiatric investigation and assessment by experts possessing undoubted qualifications for the task. Such full psychiatric assessment as his Honour strongly recommended should take place after sentence might, if undertaken before sentence, have provided a surer foundation for the sentencing of the applicant. I would add that a reading of the recent report of the Royal Commissioner into New South Wales Prisons, to which my brother Jacobs has made extensive and illuminating reference, suggests that if such an assessment were to be made it should have been made before the applicant passed out of the control of the court into that of the prison system. (at p465)

15. There is another and quite distinct aspect of the sentence that occasions concern. It is by no means clear to me that the jury foreman's answer, so much relied upon in sentencing, in fact disposed of the question of provocation, as his Honour thought it did, leaving diminished responsibility as the sole reason for the verdict of manslaughter. In Reg. v. Rolph (1962) Qd R 262, at p 290 , Hanger J. called attention to the need, when both diminished responsibility and, for example, provocation are before a jury in a murder trial, to ascertain from a jury returning a manslaughter verdict the precise basis of their verdict. In England Lord Goddard C.J., speaking, in Reg. v. Matheson (1958) 1 WLR 474, at pp 479-480; (1958) 2 All ER 87, at p 90 , for a Court of Criminal Appeal consisting of five judges, took the opportunity of laying down "a rule of practice in cases where a defence of diminished responsibility is raised". Included in that rule was the statement that where in a murder case a verdict of manslaughter was sought both on the ground of diminished responsibility and on some other ground, such as provocation, and the jury's verdict found manslaughter, the trial judge "may, and generally should, then ask them whether their verdict is based on diminished responsibility or on the other ground or on both". In Reg. v. Lipman (reported only in the Court of Appeal (1970) 1 QB 152 ) Milmo J. caused to be given to the jury on their retirement a note which informed them that if they were to find the accused guilty of manslaughter they would also be asked upon which one or more of the three possible grounds their verdict was based. A manslaughter verdict was returned and the jury did state the grounds of the verdict. Reg. v. Warner (1967) 1 WLR 1209; (1967) 3 All ER 93 was not a murder case but the jury foreman, having been questioned after verdict about the basis of the verdict, no doubt so as to assist in the sentencing process, replied that he could not answer. The jury were asked to again retire and on their return the question which had been asked of them was answered. Diplock L.J., speaking for the Court of Appeal, said (1967) 1 WLR, at pp 1213-1214; (1967) 3 All ER, at p 96 , that while a jury might not be obliged, after verdict, to answer any further questions "it is common practice in cases of murder for the judge to do that in order to discover what the reason for the verdict was" - see also Reg. v. Picker (1970) 2 QB 161 . The practice apparently dates back at least as far as 1887: in Reg. v. Doherty (1887) 16 Cox CC 306, at p 309 Stephen J., informed the jury in the course of his charge that they would be asked to distinguish between manslaughter wilfully inflicted and culpable negligence "for, of course, it will make a considerable difference in the punishment". (at p466)

16. Care must no doubt be taken to ensure both that the foreman clearly understands the nature of the question and that he is fully capable of answering it, that is, that he in fact knows what are the grounds which have led his fellow jurors to their verdict. If there has been no unanimity as to grounds or if individual jurors have not disclosed, and may, indeed, not be prepared to disclose, their grounds the foreman cannot, of course, supply the information sought. It should be made clear to him that his function is only to answer to the best of his ability the question asked, ensuring that, if answered, it does truly reflect the jury's unanimous view. The question should, of course, be so confined as to ensure that it does not invite any spontaneous general disclosure of the jury's deliberations. (at p466)

17. Simply to inquire, in the form of what might be called a leading question, whether the verdict is "based on" diminished responsibility is unduly to rely, in a matter which may very materially affect sentence, upon a nice appreciation by the foreman that an affirmative answer will be understood by the court as excluding other bases which were open to the jury. (at p466)

18. However desirable it may be to know the basis for a verdict of manslaughter where alternative bases, likely variously to affect sentence, are open, that knowledge cannot be a legal prerequisite to a valid sentence. As Isaacs J. observed in Whittaker v. The King [1928] HCA 28; (1928) 41 CLR 230, at p 240 , it is upon the trial judge and not the jury that there falls "the sole responsibility of measuring the punishment within the limits assigned", although to know, if possible, the ground upon which manslaughter has been found will be of great assistance in that task of measurement. In the present case, because of the doubts to which the form of question to the foreman and its answer give rise, that answer could, I think, only be relied upon as indicating that the jury had found diminished responsibility: it provided no guidance concerning the issue of provocation, as to which the trial judge would, in the circumstances, have to give consideration unaided by a knowledge of the jury's finding as to it. (at p467)

19. This sentence of life imprisonment, imposed predominantly because of what the trial judge took to be a pressing need to protect the community from the uncontrollable urges to violence to which he regarded the applicant as likely to be subject in the future, is, then, one which for the above reasons requires reconsideration. It does not conform to those principles in sentencing to which my brother Jacobs has given expression in his judgment in this case; instead it is the result of almost exclusive attention being given to the notion of protection of the community against future danger from the applicant. It sacrifices the important factor of proportionality in favour of this notion of protection. It seems extensively to rely, for proof of likelihood of that future danger, upon expert evidence open to criticism, if for no other reason, because founded upon quite superficial psychological examination of the applicant. It dismisses from consideration all question of provocation, not because of the trial judge's own assessment of the case but in reliance upon what was inferred from the foreman's answer to the question asked of him. (at p467)

20. The appropriate course in all the circumstances is, I think, that proposed by Jacobs J. I agree that a term of twelve years' imprisonment should be imposed, no non-parole period being fixed. I do so for the reasons appearing in his Honour's judgment. (at p467)

MASON J. The facts and the issues which arise in this application for special leave to appeal have been set out by Jacobs J. (at p467)

2. It is not the practice of this Court to grant special leave to appeal against sentence. This is because appeals against sentence rarely involve a point of law of general application (White v. The Queen [1962] HCA 51; (1962) 107 CLR 174, at p 176 ). The present case, however, does raise an important question of principle and for this reason special leave should be granted. (at p467)

3. The protection of the community from violent crime, it has always been recognized, is a very important factor to be taken into account in sentencing. It would be surprising if it were otherwise. The court must, in sentencing a person who has been convicted of a very serious offence involving violence, if his record and the expert evidence plainly demonstrate that there is a real likelihood of his committing that kind of offence again if he is restored to liberty, ensure by the order which it makes that he will not be released whilst that likelihood continues. If it should appear that the propensities or predilections of the person convicted are such that the imposition of life imprisonment is necessary to protect the community from violent harm, then the court should impose that penalty. In the case of a very serious offence involving violence, it will rarely transpire, if at all, that a sentence of life imprisonment is disproportionate to the offence of which the prisoner has been convicted, given that he has a prior record of conviction for that class of offence and that he has a propensity, because he is unstable or disordered, to commit violent crime. (at p468)

4. In saying this it is not my intention to deny, or derogate from, the principle that the punishment to be inflicted must be proportionate to the crime. Rather it is my purpose to say that the conflict between that principle and the object of protecting the community arises in relation to less serious offences where the proportionality principle inhibits the imposition of a long term sentence which might otherwise be thought necessary to protect the community. (at p468)

5. The New South Wales decisions in Reg. v. Edghill (1969) 2 NSWR 570 and Reg. v. Nell (1969) 2 NSWR 563 derive from the observations of Hanger J. in Reg. v. Gascoigne (1964) Qd R 539, at p 545 . The New South Wales Court, in giving emphasis to the comment of Hanger J. that the punishment of life imprisonment cannot be imposed solely for the purpose of protecting the community, seems to have overlooked Mansfield C.J.'s observation (1964) Qd R, at p 543 that if the trial judge in that case had been referred to s. 16 (1) (iii) of the Prisons Act, 1958 (Q.) and s. 33 of the Mental Health Act, 1962 (Q.) he would not have imposed the sentence he did. Moreover, the New South Wales decisions make no reference to the subsequent unreported decision of the Queensland Court of Criminal Appeal in Reg. v. Pedder Unreported; 29th May 1964. . There, Gibbs J., with whose judgment other members of the Court agreed, stated that Reg. v. Gascoigne (1964) Qd R 539 did not decide that the protection of the public is not a matter that should be considered in imposing sentence. After observing that the protection of the community is one of the most important results that the criminal law is designed to secure, Gibbs J. said:
"A person found guilty of manslaughter by reason of the provisions of Section 304A of the Code is liable to imprisonment with hard labour for life. Cases of manslaughter by reason of diminished responsibility may, like other cases of manslaughter, vary greatly in their nature, and the appropriate sentence may vary accordingly, but the imposition of a proper sentence is, under the Code, the responsibility of the Court, not of the Executive. In some cases in which it appears that there is no likelihood that the convicted person would be a danger to the public if set as liberty, and that there were mitigating circumstances, a light term of imprisonment or no imprisonment at all may be appropriate. On the other hand there are cases in which the mental condition of the convicted person would make him a danger if he were at large and in some such cases sentences of life imprisonment may have to be imposed to ensure that society is protected. It is true that the proper place for many of such persons is a mental hospital rather than prison, but the Court has no power (such as that conferred by s. 60 of the Mental Health Act, 1959 (U.K.)) to order that the offender be admitted to hospital, and it cannot abdicate its duty to impose a proper sentence on the assumption that, if the offender were sentenced to a short term of imprisonment, he might be transferred to and kept in a security patients' hospital. Even in cases where it is hoped that mental treatment may so ameliorate the condition of the offender that it would eventually be safe to discharge him, although it is not known how long it would take to achieve this result, it may still be necessary, in the present state of the law, for the Court to impose a sentence of life imprisonment, if that is not otherwise inappropriate to the circumstances of the crime, rather than let loose a man whose abnormality of mind may lead him to commit further killings."
In my opinion, his Honour's observations express the principle which is to be applied to cases of this kind. They demonstrate that in such a case there is no opposition between the imposition of a sentence of life imprisonment with the object of protecting the community and the proportionality principle. The court imposes a sentence of life imprisonment on taking account of the offender's record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted, imprisonment for life being a penalty appropriate to very serious manslaughter when it is attended by the additional factors to which I have referred. (at p469)

6. In the United Kingdom the use of life imprisonment as an indefinite preventive sentence for mentally disturbed or unstable offenders is well established. The conditions of its use are - (a) that the offender is unstable or disordered; (b) that he is likely to commit a very serious offence, e.g. a crime of violence or rape, if at liberty; and (c) that he has already committed an offence of a very serious nature. (See the commentary on Reg. v. Ashdown (1974) Criminal L.R. 130, at p. 132, in which reference is made to Reg. v. Hodgson (1967) 52 Cr App R 113, at p 114 and Thomas, op. cit., at pp. 55-60, 272-279.) However, the view has been expressed in the United Kingdom that a sentence of life imprisonment, which is wholly indefinite, is not governed by the normal concepts of proportion between offence and sentence whereas a fixed term sentence must not be excessive in relation to the facts of the offence, irrespective of any other justification for lengthy detention ((1974) Criminal L.R., at p. 267). Although this is a perceptive comment on the English decisions, it is not as yet the expressed principle on which those decisions are based. (at p470)

7. The principle upon which the English decisions proceed was stated by the Court of Criminal Appeal (Lord Denning M.R., Widgery and MacKenna JJ.) in Reg. v. Hodgson (1967) 52 Cr App R, at p 114 :
"When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence. We think that these conditions are satisfied in the present case and that they justify an indeterminate life sentence. The Home Secretary has of course the power to release the appellant on licence when it is thought safe to release him, if that time comes."
Certainly this position has been reached in England against a background of different statutory provisions commencing with s. 57 of the Criminal Justice Act, 1948 (U.K.) to which reference was made in Reg. v. Cunningham (1955) Crim LR 193 , where life imprisonment was imposed for the purpose of preventive detention. The section conferred power on the Home Secretary to release on licence a person sentenced to life imprisonment. That provision has been replaced by s. 61 of the Criminal Justice Act, 1967. In addition, in England there is the power to make hospital orders under s. 60 and restriction orders under s. 65 of the Mental Health Act, 1959. By reason of the statutory power of the Home Secretary, life imprisonment, when imposed in England as a means of protecting the community from an offender who has a propensity to crimes of violence, has somewhat different consequences. No doubt the existence of this power induced the English courts more readily to adopt the approach which has been taken there. But, notwithstanding the absence in New South Wales of a corresponding statutory provision and of the system for psychiatric treatment and assessment which obtains in England, I am of opinion that life imprisonment should be imposed when it is necessary to protect the community from an offender who has a disposition to commit violent crimes and that the conditions for the imposition of that sentence are as stated in Reg. v. Hodgson (1967) 52 Cr App R 113 . (at p471)

8. There was, therefore, no error in principle in what the New South Wales Court of Criminal Appeal did in the present case. Nor was the Court mistaken in viewing the applicant's offence as a very serious one. It was a vicious killing in which he stabbed the victim to death, using a kitchen knife with which he inflicted many wounds, ultimately stealing the deceased's money and clothes. It was a killing unmitigated by extenuating circumstances. For a young man the applicant's prior criminal record is formidable. Aged twenty at the time of the trial he had a long list of convictions, including an offence of malicious wounding in 1971 when, at the age of sixteen years, he made an unprovoked attack on his landlady with a kitchen knife. On that occasion he inflicted multiple stab wounds on his victim, though fortunately, as it transpired, she was not seriously injured. In his statement from the dock on this occasion the applicant stated that he had made three attempts to commit suicide. (at p471)

9. The fact that the verdict of manslaughter reflected an acceptance of the plea of diminished responsibility under s. 23A of the Crimes Act, 1900 (N.S.W.), as amended, does not mean that life imprisonment is disproportionate to the offence. In Reg. v. Pedder the Court proceeded on the view that life imprisonment was appropriate in that case, though the verdict of manslaughter was reached on the footing of diminished responsibility. In Reg. v. Kocan (1966) 84 WN (Pt 1) (NSW) 588, at p 592 , Sugerman J.A. said:
"There is . . some incongruity in the argument that a sentence otherwise proper should be reduced because of a mental disorder which so far as can be foreseen may well leave the offender as a potential danger to society when released. There is, always, of course, the possibility that by appropriate treatment the applicant's condition may be relieved and that this may lead to his being able to be released with safety. As was said by the English Court of Criminal Appeal in Reg. v. Faulkner The Times 18th August 1961. , a case of diminished responsibility where the applicant who had been sentenced to life imprisonment for manslaughter appealed on the ground that he had received the same sentence as would have been imposed had he been found guilty of murder: "There were some persons of diminished responsibility whose mental condition required that they should be kept in custody for the rest of their natural life; there were others, who having regard to their degree of responsibility for the crime and to improvements in their mental condition, could safely be released without danger to the public after a period of imprisonment.'" (at p472)

10. In addition to the material to which I have referred, the trial judge had before him the evidence given by Dr. Schmalzbach, a psychiatrist, for the Crown and that given by Mr. Goard, a psychologist, for the defence on the issue of diminished responsibility. In approaching that evidence his Honour was bound to look at it in the light that a case of diminished responsibility had been made out. However, I cannot think that the trial judge was justified in coming to the conclusion that the applicant suffered from brain damage and was a danger to society on the basis of the opinion expressed by the psychologist. In my opinion, the trial judge should have called for further expert evidence with a view to obtaining a more satisfactory picture of the applicant's condition and of his alleged dangerous propensities. As the evidence stands, I do not think that it justifies the imposition of life sentence on the footing that the applicant will be a danger to the community if he is released at the end of a fixed prison term. The conclusion that an offender suffers from a disordered or unstable mind and that he will commit serious crimes of violence if released with the consequence that he should be imprisoned for life to protect the community is not a conclusion to be reached lightly. It will only be established, if at all, by compelling evidence. (at p472)

11. The evidence here is so unsatisfactory that I could not myself with any degree of confidence determine what is the appropriate penalty to be imposed in this case. What is more, the determination of the appropriate penalty is best left to the Supreme Court as this Court does not regularly deal with questions of sentencing, but it is not a matter that can be undertaken in this case by the Supreme Court in the absence of satisfactory evidence. (at p472)

12. Since writing this judgment my attention has been called to the recently reported decision of the Federal Court in Channon v. The Queen [1978] FCA 15; (1978) 33 FLR 433; 20 ALR 1 . There the Full Court of the Federal Court accepted that the law was correctly stated by Gibbs J. in Reg. v. Pedder and applied the principle as expressed by his Honour in preference to the remarks of Hanger J. in Reg. v. Gascoigne (1964) Qd R 539 . In the result I would allow the appeal and send the matter back to the Supreme Court to enable it to receive further evidence and to determine the question of sentence in the light of that evidence. (at p473)

JACOBS J. The New South Wales Court of Criminal Appeal in this case disapproved the statements of principle respecting sentencing which had been enunciated by that Court in Reg. v. Nell (30) and enunciated principles which had been developed in England in respect of the sentencing of mentally disordered persons found guilty of serious crime. Although ordinarily this Court is loath to grant special leave on matters of sentence, it is agreed that there is here involved a question of general importance suitable to be considered by this Court and therefore special leave to appeal ought to be granted. (at p473)

2. In Reg. v. Nell (1969) 2 NSWR 563 the Court quoted a passage from the judgment of Maguire J. in Reg. v. Edghill (1969) 2 NSWR 570 who in turn had quoted words used by Hanger J. in Reg. v. Gascoigne (1964) Qd R 539, at p 545 . The passage from Reg. v. Gascoigne was as follows:
"The character of a prisoner has always been regarded as a proper factor to be considered in determining the length of a sentence; and as an element of his character, the propensity of the prisoner to repeat the offence; this may justify a longer sentence than would otherwise be imposed. But . . . the sentence imposed is to be in respect of and related to the offence committed; it is a punishment for that offence; only within this field is criminal punishment to be used for the purpose of protecting the community. It cannot be used for this purpose because, by reason of mental illness, the prisoner is a menace when at large. Such protection must be left to other appropriate authorities . . ." (at p473)

3. The words of Maguire J. in Reg. v. Edghill (1969) 2 NSWR 570, at p 572 were as follows when he was referring to the trial judge's reasons for imposing a sentence of life imprisonment:
"His Honour, quite understandably, of course, was concerned lest the accused, being released from prison at an unduly early stage, might show that he again would be a menace to the community, but in paying attention to that aspect of the matter it appears to me, with respect, that his Honour allowed his attention to be diverted from a consideration of the facts of this particular case and of this particular crime and from an assessment of what would be an appropriate sentence to be imposed in relation to those particular facts."
The Court in Reg. v. Nell (1969) 2 NSWR, at p 569 , having quoted these words of Maguire J. in Reg. v. Edghill (1969) 2 NSWR 570, at p 572 , then stated:
"If the principle were otherwise the use of a sentence of imprisonment would in the circumstances be to punish an offender for crimes he had not committed but was considered likely to commit by reason of some propensity arising out of mental illness. Even in the more traditional field of persistent offenders, Lord Reid, in the recent decision of the House of Lords in Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 648 , emphasized the limited use that could be made of the element of the protection of the public in fixing the sentence for the last offence and regarded it as improper to extend a sentence of imprisonment beyond a term which bore a relation to the gravity of that offence for the reason that anything beyond that would be additional punishment for previous offences.
In the present instance there were other matters to which the learned trial judge should, with respect, have given weight, apart from the probability of a propensity in the applicant for further offences due to his mental state. The applicant had no criminal antecedents, but previous good character in this respect can hardly be of great weight in the applicant's situation. In any case, he had previously displayed a disposition towards violent behaviour and was a person with homicidal tendencies. His history and background, which sufficiently appear from the summary already made of the evidence of the psychiatrists, may explain his conduct and attract some sympathy. They do not weigh strongly in favour of mitigation, but his mental condition is not altogether to be disregarded in a determination of the appropriate sentence. Considerations relating to the deterrence of the applicant or others in a like situation and to the applicant's reformation cannot greatly affect the sentence to be imposed for the offence he committed. His youth however, must have a very strong bearing, for a sentence of penal servitude for life is a very great sentence when imposed on a young person of sixteen years and its effect can be much more deleterious than in a person of appreciably adult years. The real task in this case is to assess the gravity of the crime itself committed by this young person and to undertake the unusual task of placing it somewhere in the scale of all crimes of murder, to inquire whether it is a more or less serious case of its kind and to determine whether there should be substituted a determinate sentence with the specification of some non-parole period in contrast to the indeterminate sentence of life imprisonment." (at p474)

4. In lieu of the life sentence there was imposed a sentence of imprisonment for a term of twelve years with a non-parole period of six years. It hardly needs to be remarked that the problem of sentence which the court there faced was not dissimilar from the problem in this case. (at p475)

5. In the present case a majority in the Court of Criminal Appeal dissented from the approach which had been made in Reg. v. Gascoigne (1964) Qd R 539 and Street C.J. felt himself constrained to say that neither Reg. v. Edghill (1969) 2 NSWR 570 nor Reg. v. Nell (1969) 2 NSWR 563 could thereafter be regarded as correct. He said:
"But in cases such as the present, namely where a verdict of manslaughter, or other crime carrying a maximum of life imprisonment, is attended by circumstances suggesting mental instability, the approach to be adopted is crystallised in the words of the Court of Appeal in Reg. v. Hodgson (1967) 52 Cr App R 113, at p 114 :
'When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence.'" (at p475)

6. O'Brien J., before dealing with Reg. v. Edghill (1969) 2 NSWR 570 and Reg. v. Nell (1969) 2 NSWR 563 , traced the course of development in England in considerable detail. He first summarized the development as follows:
"The English court has, however, been able to adopt principles . . . for application in cases of serious offences where the maximum penalty for the immediate offence is life imprisonment. By these principles it could depart from its normal principles of sentencing which required it to reserve the maximum sentence for the worst case and to impose a sentence proportionate to the gravity of the immediate offence. It could impose a sentence of life imprisonment on the basis that such a sentence was to be considered and treated as an indefinite sentence subject to systematic review and enabling release or recall by the Secretary of State at any time as found desirable and proper in the interests of the protection of the community." Then having traced the course of development in England and having then considered Reg. v. Edghill (1969) 2 NSWR 570 and Reg. v. Nell (1969) 2 NSWR 563 , he said of these two decisions:
"On the whole I think it must now be said that these decisions were taken at a time when the approach of this court to cases of serious crime by mentally disordered offenders who were likely to offend again was simply to assess the appropriate sentence for the offence if committed by a normal person and then to determine whether, and if so to what extent, leniency should be extended to reduce the sentence below that assessment by reason of mental disorder. But the approach to such cases was then in process of development in the English courts and the principles to be applied can now be seen to be established. I have in these reasons considered this development at some length and have come to the view as I have already said that the principles now established, as exemplified in, for example, Hodgson (1967) 52 Cr App R 113 and Ashdown (1974) Crim LR 130 which emphasises the protection of the public as the primary consideration, ought to be followed here. These are principles which are not affected by the legislative provision in England for Hospital Orders and restriction orders in lieu of sentence, or by the lack of authority in the executive to order the release on licence of offenders serving fixed terms as distinct from the indeterminate life terms." (at p476)

7. I think that it should first be said that I find it difficult to extract from Reg. v. Hodgson (1967) 52 Cr App R 113 all that the Court of Criminal Appeal was able to find therein. The mental instability in that case was of a kind which the courts have never been able to regard as a mitigating circumstance. The prisoner was convicted in respect of two acts of rape and one of buggery committed on two women late at night in public places and of assault on one of the women occasioning her actual bodily harm and of assault on a third woman with intent to rob. He had two previous convictions for assaults on women, one with intent to cause grievous bodily harm and the other occasioning actual bodily harm. The trial judge said: "It is difficult to know, having heard the evidence, whether you are to be regarded as a man or a monster. It is quite clear that the public, in particular women and girls, must be protected against you." It was held that he was justified in imposing a sentence of life imprisonment. The Court of Criminal Appeal said (1967) 52 Cr App R 113, at p 114 :
"When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence. We think that these conditions are satisfied in the present case and that they justify an indeterminate life sentence. The Home Secretary has of course the power to release the appellant on licence when it is thought safe to release him, if that time comes." (at p477)

8. The concluding two sentences refer to the practice which had developed in England but one would think that without any such practice the sentence could hardly be held wrong. The difficulty does not arise in such a case but in a case where if it were not for this development of the idea of preventive detention a sentence less than life imprisonment would be the proper sentence. (at p477)

9. The development in England of the principle that an indeterminate sentence of life imprisonment may be desirable even in a case where the whole of the circumstances of the offence do not on general principles warrant such a sentence has proceeded from two bases. First, there is the basis that in such a case the prisoner's mental condition can be kept under constant review and treatment so that, if it sufficiently improves, he can be released on licence, a course which was not, at the time of the development of the principle, open to the Home Secretary in the case of a prisoner sentenced to a fixed term of imprisonment. See now Criminal Justice Act, 1967 (U.K.), s. 60. The principle has continued to be applied in England despite the extension of the Home Secretary's powers by virtue of this section, as, for example, in Reg. v. Ashdown (1974) Crim LR 130, at p 133 but the comment of Mr. D. A. Thomas on this case, should be observed:
"The use of life imprisonment as a special form of sentence has developed somewhat haphazardly . . . Judicially evolved principles governing the use of the sentence have not fully adjusted to the introduction of the hospital order in 1960, as cases such as Gunnell (1966) 50 Cr App R 242 and Harvey and Ryan (1971) Crim LR 664 illustrate. The introduction of parole for offenders subject to fixed-term sentences has not led to any significant change in the practice. Throughout the period, there has been a steady rise in the admittedly small number of non-homicidal offenders sentenced to life imprisonment each year. While it is probable that any future system of sentencing will retain a place for life imprisonment on something like its present lines, both the defects which gave rise to the present practice - the absence of a power to impose indefinite custodial control on a mentally unstable offender, and the rigidity of the long fixed-term sentence - have been substantially removed by the introduction of hospital orders and parole respectively. It may be that the time has come for the court to review generally the principles on which the life sentence is used, and its relationship to other forms of disposal."
It is to be observed that there is power in New South Wales to release on licence a prisoner sentenced to a fixed term of imprisonment. See Crimes Act, 1900 (N.S.W.), s. 463. (at p478)

10. There is the second basis for the English development, namely, that the prisoner has been proved to be a continuing danger to the community and the longer sentence is requisite for the protection of the community. Both these bases - constant review and treatment of the prisoner's mental condition with a view to his release if and when he responds, and meanwhile the protection of the community - inter-relate with one another. It appears to me that the second, without the first, would offend against the fundamental principle that a man must be given the sentence appropriate to his crime and no more. It is only by regarding the life sentence for a mentally disturbed offender as no more than appropriate because of the potential advantages which it offers to the offender - proper treatment and possibly earlier release than would otherwise be open - that the course has been able to be developed in England. It needs to be emphasized that the protection of the public does not alone justify an increase in the length of sentence. (at p478)

11. It appears to me that the Court of Criminal Appeal has in this case fallen into error in regarding these two bases of the English development separately. It is true that the English practice has survived the introduction of the power to release on licence a fixed-term prisoner but, as I have stated, the justification has been criticized, and, it appears to me with respect, rightly so. As a result, indefinite protection of the public is made to appear a sufficient justification in itself. Thereby, it seems to me that the majority in the Court of Criminal Appeal did not find it necessary to examine the implications of the power to release a fixed-term prisoner on licence. But, perhaps more importantly, it did not consider it necessary to examine whether in reality a person suffering from a mental disorder less than mental illness within the meaning of the Mental Health Act, 1958 (N.S.W.) and sentenced to life imprisonment would in fact receive in New South Wales the treatment which the English courts have envisaged in respect of the cases with which they have dealt. It is quite clear from a reading of the English legislation, the cases and the commentaries that there are provisions for the treatment under secure conditions of the mentally disordered who are not lunatic (I avoid the modern euphemism "mentally ill" because it raises in this present context such problems of semantics). There are special hospitals and consequently "Hospital Orders". Their nature are described by O'Brien J. in his reasons, and I shall not repeat that description. There is also a special psychiatric prison. (at p479)

12. There is nothing comparable in New South Wales. The most that can be said is what O'Brien J. stated: "If an offender is mentally disordered but not mentally ill within the purview of the Mental Health Act, psychiatric treatment is available if appropriate within the prison system from the Prison Psychiatric Service." In a later case than the present one (Reg. v. Page (1977) 2 NSWLR 173 ) in which the principle enunciated in the present case was referred to and applied (although the sentence in that case was regarded as appropriate irrespective of the application of this particular principle), Street C.J. said (1977) 2 NSWLR, at p 176 : "There is not the slightest reason to doubt that he will receive, whilst in custody, such psychiatric attention and treatment as may now or hereafter be available for his specific malady. His Honour could hardly have used more emphatic terms in expressing his concern regarding the appellant's psychiatric disabilities." (at p479)

13. However, it is clear that the psychiatric services available in respect of a prisoner such as the present one are very limited indeed even if they can be said to exist at all. The trial judge in Reg. v. Page (1977) 2 NSWLR 173 was Maxwell J. and that same judge has had occasion to say more recently in Reg. v. Jessop Unreported; 29th March 1978. when pronouncing sentence: "I interpolate to state that according to my information and experience there is no way in which prisoners serving sentences in New South Wales can be afforded appropriate psychiatric treatment." We were informed during the hearing of this matter, and it was not in any way challenged as a correct statement, that the applicant has not received any psychiatric treatment since his sentence. Yet in the meantime he has once attempted suicide. (at p479)

14. Any doubts which might otherwise be left about the unavailability of any extensive psychiatric treatment in New South Wales prisons are resolved by the recent report of Mr. Justice Nagle as Royal Commissioner appointed to inquire into New South Wales prisons. Having stated that medical services in New South Wales prisons are not operating satisfactorily, and having referred to the fact that part-time general practitioners and medical specialists supplement full-time services of Health Commission officers, Mr. Justice Nagle, Report of Royal Commission into New South Wales Prisons (1978), p. 335, said:
"If medical treatment is not available within the prison system, then it must be acquired from outside. . . . Both logic and justice dictate that an imprisoned person should be provided with proper medical treatment.
The cost of such a provision is no answer to its necessity. The Department attempted to answer it in that way. But it is wrong.
If imprisonment is to be retained, society must accept the responsibility for ensuring that prisoners do not incur any physical or mental deterioration which can be cured or treated during their confinement. To achieve this objective, a suitable prison medical service must be provided."
He then turns his attention to the Observation Section at the Malabar prison complex; and it is there, if anywhere within the prison system itself, that psychiatric care and treatment (apart from visits to outside psychiatry specialists) would be given. At pp. 335 et seq. Mr. Justice Nagle says:
"One of the most disturbing aspects emerging from the Commission's inquiries into the medical services of the Department has been the condition and use of the Observation Section at the Malabar Complex. The Section was originally designed for the containment and treatment of prisoners who were psychiatrically disturbed. All parties at the hearings of the Commission unanimously condemned the building and its facilities.

. . .
The cellular conditions in the Observation Section are appalling. Some

cells still have toilet tubs for use by occupants.
This practice is both unhygienic and dehumanizing. Some cells have no provision for beds and the occupant, whether sane or insane, is contained in a bare room. On the outside in the attached yard, there is scant cover for prisoners when it rains.
Apparently, various attempts and proposals have been made in the past to renovate the Section. Its continual use is an indictment on the prison system, its administration and the people of New South Wales. The situation should not have been allowed to continue and its replacement should be a first priority in any future building programme.
The Consultant Psychiatrist to the Prison Medical Service, Dr. W. E. Lucas, describes the Section with a note of exasperation:
'One can only describe the Observation Section as Dickensian. Physically, it appears much the same as when I first saw it in 1968. However, it appears utterly durable. Cellular confinement of 16-17 hours per day is totally unacceptable for psychiatric patients. There are no psychiatrically trained staff and the inmates there are now predominantly psychiatrically disturbed. Whilst my knowledge is confined to since 1968 in the period since plans to provide alternatives have consistently foundered.'
It was universal practice to house all people charged with capital crimes in the Observation Section at Long Bay before their trial, whether or not any psychiatric illness was indicated. This could perhaps have been justified if a genuine attempt at psychiatric assessment was to be made on a remand prisoner. This was not the case. . . .
Prisoners, if convicted of capital crimes, were sent back to the Observation Section. Again, this practice is difficult to justify unless it was to carry out a thorough examination and assessment of the prisoner to assist in his programming. But that has not been the history of the Observation Section: rather it has been used as a half-way house to acclimatize such prisoners to prison life.

. . .
It is clear from the evidence that, in the past, the Observation Section

had been used to subdue or discipline recalcitrant prisoners. This is a more important criticism. . . .
The Observation Section has for a long time had the reputation of being a punishment unit. This use is completely inimical to the concept of an Observation Section or psychiatric assessment unit. It has no legislative warrant." (at p481)

15. Some further insight into the lack of conditions for any extensive treatment of the mentally disordered can be got from Ch. 29 of the Report, which deals with prisoners found not guilty on the grounds of mental illness and ordered to be detained - the so-called "Governor's Pleasure Prisoners". Having related the statutory provisions and their constricting effect, he states at pp. 393 et seq.:
"As a consequence, many of those acquitted by the jury on the ground of mental illness are never admitted to a mental hospital. Of fifty-one Governor's Pleasure prisoners detained on the 16th December 1976, only twenty-nine were in mental hospitals. Of the fifty-seven Governor's Pleasure prisoners released during 1966-76, only twenty-six had been admitted to a mental hospital at some stage of their detention.
Many Governor's Pleasure prisoners who urgently need psychiatric treatment, but who do not qualify for admission to a mental hospital, are thus deprived of the treatment they could otherwise have obtained as voluntary patients in such hospitals. The psychiatric treatment available in the penal institutions, such as it is, does not measure up to what those prisoners need and deserve."
" . . . it is most desirable that the procedures for reviewing each prisoner's case should be placed into the hands of people with expertise in psychiatry and psychology, and that firm guidelines should be laid down to assist in the assessment of each case.

This is not so under the present system.
. . .
The circumstances under which Governor's Pleasure prisoners are detained

in themselves arouse some cause for concern. It is difficult for the public to appreciate the uncertain and frustrating future contemplated by a person who has been imprisoned for an indeterminate period. The obsession which, it has been suggested elsewhere, prisoners sentenced to imprisonment for a fixed period have with a release date is not available to the Governor's Pleasure prisoner. The indeterminate nature of the sentence, coupled with an absence of rights on the part of the prisoner to do anything to procure his or her own release, is the source of much unhappiness."
If this can be said of prisoners found by a jury to be mentally ill it is equally true of any prisoner suffering from severe mental disorder and undergoing life imprisonment. It is a bleak picture which Mr. Justice Nagle concludes to be in need of urgent reform. If and when that reform should be effected it would be time to consider the adoption of the English development. (at p482)

16. In the present situation there is no basis upon which a purpose of protection of the community can alone be extracted from the conglomerate of factors which led the English courts to develop the concept of "preventive detention" in order to apply that concept in New South Wales. This does not mean that the protection of the community is not an important factor in determining sentence. Its place was correctly analyzed by Sugerman J.A. in Reg. v. Kocan (1966) 84 WN (Pt 1) (NSW) 588 . He referred to the English practice as it had developed to that date. He then said (1966) 84 WN (Pt 1) (NSW), at p 591 :
"However the English practice rests to some extent upon the circumstances that the Home Secretary may by statute release on licence a person sentenced to life imprisonment at any time, whereas a person sentenced to a fixed term may only be pardoned under the royal prerogative and there is probably no power to impose conditions which would allow recall (1965) Crim LR, at p 694 . Hence a sentence of life imprisonment is spoken of as a more merciful sentence than a term of years and its flexible character is emphasized (see, e.g., Reg. v. Faulkner The Times, 18th August 1961. )."
Sugerman J.A. was of course speaking at a time before the enactment in England of the Criminal Justice Act, 1967, s. 60. (at p482)

17. Then, having stated that in ordinary circumstances a sentence may be reduced below that which would otherwise be imposed for the offence committed by reason of the disturbed mental condition of the offender at the time of its commission and having approved the view of the Queensland Court of Criminal Appeal in Reg. v. Gascoigne (1964) Qd R 539 that an offender should not be sentenced to life imprisonment, not solely for the offence of which he has been convicted, but also because of his mental condition, Sugerman J.A. continued (1966) 84 WN (Pt 1) (NSW), at pp 591-592 :
"Mr. Murray's submissions, however, do not meet the situation where the offender's abnormal mental condition is a continuing one and such that if he remains at large he is potentially a continuing danger to society and himself. In such circumstances it is proper to have regard to the preventive object of punishment which the English decisions earlier mentioned embody, without its being necessary to decide whether we should go so far in all respects as those decisions have gone. It is not here, that is to say, a matter of increasing a sentence to imprisonment for life as in some instances the English court has done (see, e.g., Reg. v. Holmes (1955) Crim LR 578 ). Nor is it here a matter of imposing a life sentence because only of the mental condition of the offender where otherwise that would not be an appropriate sentence, and thus departing from the principle stated in Reg. v. Gascoigne (1964) Qd R 539 . The true approach here is, rather, that the circumstances of the present case are essentially different from those . . . to which Mr. Murray has referred us. The applicant's mental disorder was not some merely temporary episode such as might on merciful grounds provide reason for the mitigation of his penalty. It should be regarded rather as ground for allowing the sentence which would otherwise be appropriate to stand, in order that to that extent the aim of prevention may be achieved. There is, with respect, some incongruity in the argument that a sentence otherwise proper should be reduced because of a mental disorder which so far as can be foreseen may well leave the offender as a potential danger to society when released." (at p483)

18. With these principles in mind I now turn to the facts of the present case in order to determine whether the sentence of life imprisonment was the proper punishment appropriate to the whole of the circumstances of the case. First I shall set out the whole of the trial judge's remarks on passing sentence. They give the facts and the background and the course of reasoning which led him to impose the maximum sentence.
"On 25th July 1975, the prisoner, Robert Charles Vincent Veen, was found not guilty of murder but guilty of manslaughter. The foreman of the jury was asked if the verdict was based on the defence of diminished responsibility, and he replied that it was. Having regard to my directions to the jury the effect of this finding is that the jury was satisfied beyond reasonable doubt that the prisoner intended to kill the deceased, known as Terry Ward, or to cause him really serious physical injury, but that they were also satisfied, on a balance of probabilities, that the prisoner suffered from such an abnormality of mind as substantially impaired his mental responsibility for his act.
The prisoner met Terry Ward at the El Alamein Fountain in Kings Cross on Saturday, 15th February this year. After some conversation Ward invited the prisoner to his flat at Croydon. The prisoner accepted, and the two men spent the rest of the weekend together. Some homosexual activities took place, and for his part in them the prisoner expected Ward to pay him.
On Sunday night, after the two men had been drinking heavily, the prisoner asked for payment, but Ward refused. According to the prisoner, Ward's refusal was in these words: 'No, you black bastards are all the same, always wanting hand-outs'. The prisoner is an aborigine, and the jury was instructed that they might, if they thought it proper to do so, treat Ward's reference to the prisoner's race in the circumstances such provocation as would reduce murder to manslaughter. The answer made by the foreman to the question put to him, however, shows that the jury did not regard the case as one of provocation. In this I think the jury was clearly right, and indeed I was in doubt as to whether in law I should leave the issue of provocation to the jury. What inflamed the prisoner seems plainly to have been the refusal of payment, not the reference to his race or colour, derogatory though it was. This incident occurred in the kitchen of the flat. The prisoner then took a sharp, pointed knife from a rack, and stabbed Ward in the arm. He then ordered Ward into the living room, where he stabbed Ward three times in the arms and chest. Then the prisoner ordered Ward into the bedroom, where he stabbed him repeatedly until he collapsed and died. The prisoner covered the body, ransacked the room, stole money of the deceased, and left the flat dressed in the clothing of the deceased. During the stabbing it appeared that the prisoner's hand, through the violence of his own blows, slipped on to the blade of the knife, thereby causing to himself a wound which severed the tendon of a finger. Next day he went to Royal Prince Alfred Hospital to have treatment for this wound, and another minor one. Later in the day he was interviewed by the police. He initially gave them a false account of the cause of his wounds, but shortly afterwards made a full confession, and co-operated with the police in their inquiries into the circumstances of the crime.
A psychiatrist, called by the prosecution, was firmly of the opinion that the prisoner did not suffer from any abnormality of mind as would substantially impair his mental responsibility. No psychiatrist was called on behalf of the defence. The only expert witness for the defence was a psychologist. He performed tests which showed such a disparity between verbal ability and short term memory as to indicate an abnormality in the mind of the prisoner. He then performed other confirmatory tests, which indicated that the prisoner had reduced emotional control. He concluded that the prisoner had a form of brain damage which could cause him to act in an uncontrollable aggressive manner when he was severely provoked, or had an intake of alcohol. When this witness had the basic circumstances of the crime put to him, he said that in that situation the prisoner would in effect have no willpower.
This then is not a case of an abnormality of mind which might cause a person to fail to appreciate what he was doing. In fact, the prisoner was well aware of what he was doing, and was aware of his intention to kill. What he lacked was the power to control his desire to kill.
The accused is a young man of twenty years. He was adopted by an Albury family when he was two years of age. By the time he was eleven he was becoming difficult to handle. He became progressively worse, and by the time he was fifteen his foster parents felt that they could no longer care for him. He left his foster parents and went to live in boarding houses around Albury. In November 1971 he made an unprovoked attack on the landlady of the boarding house at which he was then staying. He had been drinking heavily, and he told the police that he felt before the incident that he was going to kill himself or somebody else. On this occasion also he used a kitchen knife, though it appears to have been of a less lethal variety. With the knife he inflicted multiple stab wounds on the woman, but she was fortunately not seriously wounded. He was charged with, and pleaded guilty to, the crime of malicious wounding.
The prisoner attended schools in the Albury/Wodonga district until he was fifteen, reaching second-year standard. On leaving school, he was carpet laying for two years, and then went to Melbourne where he worked for about four months in a timber yard as a stacker. After this he went to Queensland where he said he tried to get work, but was unable to do so. According to the prisoner he was hit over the head with an axe whilst in Queensland. This was of course after the malicious wounding charge to which I have referred. Whilst in Queensland he committed a number of stealing offences in September 1973, and for this he served about eight months on a prison farm. He returned to Albury, where he remained until 20th December 1974, when he was sentenced to imprisonment for two months for stealing a motor vehicle. Upon his release on 28th January 1975, he travelled to Sydney and was living in a derelict house at Kings Cross at the time of his arrest. I refer to, but do not consider it necessary to specify, the source of his income at this time.
Two witnesses were called on behalf of the prisoner on the question of sentence. One of them, Father Kiss, has extensive training in psychology and wide experience in youth welfare. He knew the prisoner when he was attending the Christian Brothers' School at Albury, but has had no real contact with him since 1971. This school was at primary level. The prisoner seemed well adjusted and intelligent. Father Kiss saw a common thread in the earlier malicious wounding case and the present one. This was the prisoner's problem when the question of his race and colour was brought up. Father Kiss thought that the prisoner felt he was not accepted by either the black or white community. The prisoner in his view was in need of tremendous care and affection. He was in need of psychiatric assistance. Just to send him to gaol, the end result would be worse. Father Kiss thought that the prisoner could be rehabilitated, but it would require a great deal of persevering effort.
The second witness was Mr. Thomas, who had been the headmaster of the Wodonga Technical at the time the prisoner attended there. At this college, the prisoner had a good, outgoing personality. He was regarded by other students as one of their peers. He was outstanding in the sports of swimming, football and cross-country running. There was no suggestion of homosexual behaviour. Mr. Thomas got the feeling later that the prisoner was having problems as he reached the age of fifteen or sixteen. He, that is the prisoner, felt that he was accepted to a point, but not beyond that point, especially with girls. When he came to Sydney, he found he felt rejected by black society there. Thus he came to feel rejected by both the black and white communities. When Mr. Thomas last saw him, in 1973, the prisoner appeared to him to be very depressed, and Mr. Thomas arranged for a doctor to see him.
These witnesses spoke with great sincerity, and left me with a strong impression that the prisoner had at one time a strong personality that gradually deteriorated as the impact of the problems of a black person in a white society was felt by him.
It has been said that one of the main purposes of punishment is to protect the public from the commission of crimes of violence by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. (Reg. v. Radich (1954) NZLR 86 ; Reg. v. Wallis Court of Criminal Appeal; 25th June 1975 .)
These cases also stress that, on the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct, of the individual offender, and the effect of sentence on these, should also be given the most careful consideration. There is no doubt that the prisoner had a serious abnormality of mind at the time he committed this offence. He apparently had a similar abnormality of mind when at the age of sixteen he stabbed his landlady. He said that he suffers from depression and he has twice tried to commit suicide. It appears that the abnormality arises on slight provocation, particularly when the prisoner has drunk a large quantity of alcohol. The jury's finding, having regard to my directions to them, indicates that they considered that this abnormality arose from some brain damage, the cause of which is not known.
There can be little doubt that the prisoner, if and when released, will, whilst he suffers from this brain damage, be likely sooner or later to kill or seriously injure one or more other human beings. There is no suggestion that his condition is curable, or in any way responsive to treatment. In his case the deterrence theory of punishment expounded in Radich's case has no application. Punishment will not deter him, or like minded people, for in certain circumstances they have no control over their impulses to kill. The only principle of sentencing that I can apply is that the community is entitled to be protected from violence. No matter when the prisoner is released, whether it be in a few years or many years, there is the probability that he will again commit a crime of serious violence.
Thus the case presents the problem that there is no basis for fixing a term of imprisonment or a non-parole period. The crime of manslaughter admits of many degrees, and the penalty ranges from nominal punishment to penal servitude for life. Normally an acquittal for murder, and a finding of guilty of manslaughter, would carry a lesser punishment than life imprisonment, even where the acquittal is based on diminished responsibility. In that case, the mental responsibility has been substantially impaired, and punishment would normally therefore be less than life imprisonment. But in this case I do not think the ordinary principles of punishment apply. Indeed I do not think it can be properly said, as I interpret the jury's verdict, that the prisoner should undergo punishment. He has to be imprisoned for the protection of the community from his own uncontrollable urges. There is no institution I can send him to; the only alternatives open to me are to release the prisoner or imprison him. The first alternative is of course an impossible one.
I strongly recommend that the prisoner be given a full psychiatric assessment, and be provided with psychiatric treatment if upon assessment such treatment appears to be warranted. I should hope that the authorities will periodically review his case to determine whether he should be released, on a proper balance of his interests and the need to protect society. The case is one of great sadness, but I believe there is only one sentence I can pass, and there will be no non-parole period.
Robert Charles Vincent Veen, I sentence you to imprisonment for life." (at p487)

19. There are a number of features of the case which give rise to some concern. First, the jury, having returned a verdict of manslaughter, was asked a special question. The question and answer were as follows:
"ASSOCIATE: Is your verdict of not guilty of murder but guilty of manslaughter based on the defence of diminished responsibility?

JURY FOREMAN: Yes."

The answer given by the jury to the special question does not wholly preclude the possibility that the jury found manslaughter upon the further ground upon which a verdict of manslaughter was open, namely, proof of provocation. This may not be likely, but it would have been open to the jury to find both diminished responsibility and provocation and to ask whether the verdict was based on one defence does not completely cover the field of possibilities. (at p488)

20. The second feature to which I would refer is the fact that, in the light of the decision of this Court in Johnson v. The Queen [1976] HCA 44; (1977) 136 CLR 619 the direction to the jury on provocation was wrong in that it left to the jury as a separate element and as an "important matter" in the defence of provocation the question whether there was a reasonable proportion between the provocation and the retaliation. As the matter is before the Court, even though the appeal relates only to sentence, this error is a factor which cannot be left out of account. (at p488)

21. Thirdly, the conclusion of the trial judge that the applicant, if and when released, would, whilst he suffered from brain damage be likely sooner or later to kill or seriously injure depends upon a diagnosis and prognosis by a psychologist based on an assessment by him of the results of intelligence tests conducted by him on one afternoon shortly before the trial, an assessment with which Dr. Schmalzbach, a psychiatrist called on behalf of the prosecution, profoundly disagreed. The jury was asked the question which I have already quoted and answered it in the affirmative. The verdict of the jury must be accepted, but it does not follow that the presiding judge, in the task, which was peculiarly his, of determining the appropriate sentence, was not only bound by the jury's finding in this respect but was also bound to accept the whole of the evidence of the witness upon whose evidence the jury would appear to have relied in reaching their finding. No process of logical deduction from the legal implications of the jury's finding is a substitute for the sentencing judge being himself satisfied on the whole of the evidence that the prisoner before him had brain damage which would in the future be likely to lead him to kill or seriously injure other human beings. It appears to me that the trial judge felt himself bound to accept all the implications of the jury's verdict. I repeat what he said in this connexion.
". . . The jury's finding, having regard to my directions to them, indicates that they considered that this abnormality arose from some brain damage, the cause of which is not known.
There can be little doubt that the prisoner, if and when released, will, whilst he suffers from this brain damage, be likely sooner or later to kill or seriously injure one or more other human beings. There is no suggestion that his condition is curable, or in any way responsible to treatment."
I do not underestimate the difficulty which arose in the present circumstances but that difficulty cannot be resolved by deductions from the jury's verdict. The present crime and the fact that three or four years previously he had committed a violent assault with a knife on his landlady showed that he was prone to violence but that can be said of many prisoners facing sentence. To base a conclusion that he would in the future kill or seriously injure someone on the sparse evidence that he had a damaged brain as a result of the incident in Queensland would hardly be possible as the assault on his landlady occurred before the events in Queensland. It is hardly necessary to remark that there had been no neurological examination and no electro-encephalogram to support the conclusion. Whatever may have been the basis of the jury's conclusion the court itself must be satisfied that the prisoner has a mental disorder which will lead him to kill or seriously injure in the future before proceeding to sentence on that basis. It should be added that in the great majority of cases where mental disorder has been treated not as a mitigation but as a reinforcement of the need for the longest permissible sentence, the psychiatric evidence, frequently accompanied by a substantial and more or less prolonged confirmatory history, was overwhelming and most frequently unanimous that there was a present abnormal mental condition of a severe kind. These conditions were not satisfied in the present case. (at p489)

22. A combination of all these features in the case, coupled with the fact that the trial judge himself, judging from the sense of his words on sentence, did not regard the case as the most grave case of manslaughter, lead me to a conclusion that the sentence of life imprisonment ought to be reviewed. I wish to make it clear that I do not say that there are not cases, many cases, of manslaughter which warrant such a sentence. In particular there are no doubt very many cases where the success of a defence of diminished responsibility will lead to a sentence of life imprisonment, even though that is the same sentence as in the case of a verdict for murder. (at p489)

23. The killing was undoubtedly a very grave crime; but the question is whether it was a crime which warranted not only severe punishment but the most severe punishment which could be awarded. The applicant was aged twenty at the time of his criminal act. He had a record of comparatively minor offences not involving violence with the one exception, the conviction for malicious wounding when he was aged sixteen. This, as well as the crime for which he is now sentenced, shows that he has a propensity to violence and account must be taken of that fact. On the other hand, there was considerable provocation even if it did not amount to a defence within s. 23 of the Crimes Act. It can certainly be stated that there was no premeditated violence. He used a weapon which happened to be at hand when he wholly lost control of himself. On the other hand, the attack was prolonged from the moment of first striking and was extremely violent. It was followed by conduct designed to effect an escape from the consequences, though in all the dreadful circumstances it is doubtful whether this is of great significance. Underlying these factors is the background of the applicant. I have already stated the summary of the trial judge, but I would repeat his words:
"These witnesses . . . left me with a strong impression that the prisoner had at one time a strong personality that gradually deteriorated as the impact of the problems of a black person in a white society was felt by him." (at p490)

24. This crime, very grave as it was, was not in the category of the most grave cases of unlawful killing short of murder. A life sentence under New South Wales conditions, coupled with repeated judicial pronouncements that if he were released, he would probably kill again, those pronouncements being based on an inference from the jury's verdict rather than upon the cogency of the psychiatric evidence, was too severe a punishment to impose on the applicant. (at p490)

25. One course which would now be open would be to remit the matter to the Court of Criminal Appeal for the taking of further evidence upon the question whether the applicant, if ever released, would, unless his condition had been remedied, be likely again to kill or violently injure. I have considered that course but I do not think that it would be appropriate in the light of Dr. Schmalzbach's evidence and I do not think that the applicant's history is such that any punishment should be awarded which is not strictly proportionate to the gravity of the offence. In my opinion there should be a heavy sentence for a fixed term. No non-parole period should be fixed, the reason for not fixing such a period being in order that the case of the applicant can be the subject of executive review so that at a suitable time if the applicant effects a rehabilitation of himself and his personality and if his mental condition is considered stable, consideration can be given to the question of his release on licence. I would fix a term of twelve years. (at p491)

MURPHY J. The applicant was convicted of manslaughter and sentenced to life imprisonment without a non-parole period. The New South Wales Court of Criminal Appeal dismissed his application for leave to appeal against the sentence. The following statement by the trial judge shows that this sentence was one of preventive detention:
". . . the case presents the problem that there is no basis for fixing a term of imprisonment or a non-parole period. The crime of manslaughter admits of many degrees, and the penalty ranges from nominal punishment to penal servitude for life. Normally an acquittal for murder, and a finding of guilty of manslaughter, would carry a lesser punishment than life imprisonment, even where the acquittal is based on diminished responsibility. In that case, the mental responsibility has been substantially impaired, and punishment would normally therefore be less than life imprisonment. But in this case I do not think the ordinary principles of punishment apply. Indeed I do not think it can be properly said, as I interpret the jury's verdict, that the prisoner should undergo punishment. He has to be imprisoned for the protection of the community from his own uncontrollable urges. There is no institution I can send him to; the only alternatives open to me are to release the prisoner or imprison him. The first alternative is of course an impossible one.
I strongly recommend that the prisoner be given a full psychiatric assessment, and be provided with psychiatric treatment if upon assessment such treatment appears to be warranted. I should hope that the authorities will periodically review his case to determine whether he should be released, on a proper balance of his interests and the need to protect society. The case is one of great sadness, but I believe there is only one sentence I can pass, and there will be no non-parole period." (at p491)

2. The applicant contended that there was no power in New South Wales to sentence to preventive detention. There is special legislative provision in England to do so and the New South Wales Court of Criminal Appeal departed from its own previous decisions (Reg. v. Nell (1969) 2 NSWR 563 and Reg. v. Edghill (1969) 2 NSWR 570 ) to follow the English practice. Since this decision, the Court of Criminal Appeal has followed this precedent in a number of cases (see Reg. v. Page (1977) 2 NSWLR 173 ). (at p492)

3. Application for special leave. Special leave is sought in accordance with s. 73 of the Constitution and s. 35 of the Judiciary Act 1903, as amended. I would grant special leave, as this case presents an issue of general public importance. (at p492)

4. The appeal. The relevant appellate power of the Court of Criminal Appeal derives from the Criminal Appeal Act, 1912 (N.S.W.), as amended, which states:
"5. A person convicted on indictment may appeal under this Act to the court -

. . .
(c) with the leave of the court against the sentence passed on him."
"6 (3). On an appeal against a sentence, the court, if it is of opinion

that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal."
On an appeal by a convicted person under s. 5, the Court of Criminal Appeal may exercise its powers under s. 6 (3) if the conditions stated in the sub-section are satisfied. In my opinion, there is no warrant for introducing a gloss that the court may not or should not exercise its power unless it is satisfied that the sentencing judge acted on a wrong principle or an error of fact. Ideas based on the concept of discretionary judgments should not be allowed to undermine this appellate power. (at p492)

5. The jury convicted the accused of manslaughter rather than murder because he killed when suffering from "such abnormality of mind . . . as substantially impaired his mental responsibility" (see s. 23A (1) of the Crimes Act, 1900 (N.S.W.), as amended). This is the first case in New South Wales where a verdict of manslaughter was returned by a jury because of the accused's diminished responsibility. The accused also had advanced provocation as a ground for a verdict of manslaughter rather than murder. The trial judge left provocation to the jury but did not ascertain whether the jury came to any conclusion or were divided on the issue. (at p492)

6. The applicant was a homosexual prostitute. He engaged in homosexual activities with the deceased who said, when asked for payment by the applicant, "No, you black bastards are all the same, always wanting hand-outs". These words were capable of being extremely provocative to the applicant who is an aborigine. The applicant took a knife from a rack in the kitchen of the deceased's house and stabbed the deceased until he collapsed and died. The stabbing occurred in other parts of the house as well as the kitchen. The applicant then covered the body, took some money and left the house dressed in some of the deceased's clothing. The applicant's hand was injured by the knife during the stabbing and he sought hospital treatment the same day. Later, when questioned by the police, he lied about the cause of his injury but then made a full confession. (at p493)

7. The applicant was twenty years of age at the time of sentence. He had been adopted by a white family at Albury when aged two. By eleven he was difficult to manage. He attended primary school in Albury and then attended Wodonga Technical College until he was fifteen, reaching second year standard. The principal gave evidence that he had a good outgoing personality and was outstanding at the sports of swimming, football and cross-country running. As his foster parents could not care for him, he left them and lived in boarding houses around Albury. On leaving school, he worked as a carpet layer for two years. During November, 1971 (when he was sixteen), he made an unprovoked attack with a kitchen knife on his boarding house landlady. He had been drinking heavily and afterwards explained to the police that before the incident he felt that he was going to kill himself or somebody else. The landlady received multiple but not serious wounds. He was charged with and pleaded guilty to malicious wounding. After the carpet laying, he went to Melbourne where he worked for four months as a stacker in a timber yard, then to Queensland where he was unable to get work. He was convicted of several stealing offences in Queensland and served about eight months on a prison farm. He stated that he was hit over the head with an axe while in Queensland. He returned to Albury where he was sentenced on 20th December 1974 to two months' imprisonment for stealing a motor vehicle. He was released on 28th January 1975, and went to Sydney; at the time of his arrest, he was living in a derelict house in Kings Cross. The trial judge accepted evidence that the applicant's once strong personality had gradually deteriorated as he began to feel the impact of the problems of a black person in a white society. (at p493)

8. During the trial, a psychologist gave evidence for the applicant on the issue of diminished responsibility. The trial judge was correct in approaching the question of sentence consistently with the jury's verdict, but should have satisfied himself directly (and not by accepting that the jury's finding of diminished responsibility involved an acceptance of the psychologist's evidence) in concluding that the applicant " if and when released will, whilst he suffers from this brain damage, be likely sooner or later to kill or seriously injure one or more other human beings. There is no suggestion that his condition is curable, or in any way responsive to treatment". (at p494)

9. The evidence on which the sentence was based was meagre. This case illustrates the failure of the judicial system (at least the superior courts) to develop satisfactory principles and procedures in sentencing. Although sentencing is often a much more difficult task than ascertaining guilt, it is neglected in legal education and in professional practice. Far more time and attention is paid to questions of determining guilt than to the also important question of what to do with the offender. In a case such as this there are significant social and economic consequences for society as well as the offender. In view of these, it is unsatisfactory that the decision to sentence to life imprisonment should be made, however compassionately (and it was in this case) on such meagre material. I am not satisfied that Rath J.'s conclusion that the accused, if released, would kill or seriously injure one or more others is justified. The evidence of the psychiatrist called by the prosecution during the trial was very much to the contrary. In this area, predictions notoriously err in over-predicting dangerousness (see Monahan and Cummings, " Social Policy Implications of the Inability to Predict Violence ", Journal of Social Issues, vol. 31 (1975) p. 152; Bottoms, "Reflections on the Renaissance of Dangerousness", Howard Journal of Penology and Crime Prevention, vol. 16 (1977)). (at p494)

10. However, assuming that the applicant is as dangerous because of brain damage as Rath J. found, what should the sentence be? The problem involves very serious questions of civil liberty and of the protection of the community. Yet, the answer is clear and was given long ago by Cicero: " Take care that the punishment does not exceed the guilt" (De Officio, Bk 1, Ch. 25 sec. 89). (at p494)

11. Protection of the community has traditionally been regarded as an important factor in sentencing. In developing a coherent system of sentencing, it is necessary to consider sentences which have a maximum term of years and not merely those for which life imprisonment may be imposed. When sentencing for offences for which the maximum is a term of years, the legislature has entrusted the judiciary with the discretion of imposing imprisonment for less than the maximum and has made available a range of alternatives from no imprisonment being imposed to conditional sentences, probation, parole, etcetera, in the various States. If the sentencing judges have been empowered to impose what may be described as preventive detention, this is limited by the maximum. No matter how dangerous it may be for the offender to be released after the maximum has expired, the criminal court has no authority to order his continued detention unless he has come within the scope of a provision such as the Habitual Criminals Act, 1957 (N.S.W.), as amended. Suppose a person committed an offence carrying a maximum of a very lenghty period but the circumstances were such that ordinarily only a slight, if any, punishment would be imposed, and the trial judge is satisfied that the offender would at some time commit similar or other crimes if released. Is the trial judge then justified in sentencing the offender to the maximum in order to protect the community? (at p495)

12. Traditionally, the courts have imposed a maximum or near-maximum sentence to protect the community, not against people who are considered to be insane or of diminished responsibility, but against those who are considered responsible for their actions but whose dispositions, aggressive or otherwise, have made them a danger to society. No doubt the supposedly sharp differences between the concepts " sick " and " dangerous ", "responsible" and " irresponsible ", reflect only the primitive state of our knowledge ( or at least the primitive state in which it is presented to the court). It is a distortion of the criminal law to sentence people to longer terms because they are sick or have diminished responsibility. It is inconsistent with the aims of the criminal law. Also, the techniques, methods, and the information usually available to the courts do not lend themselves to a satisfactory handling of such cases. A sentence is a once-and-for-all decision, not the progressive examination, assessment and, if possible, treatment which are appropriate to preventive detention. (at p495)

13. If some definite term of imprisonment should be imposed upon an offender by way of punishment, it is a wrong administration of the criminal law for the judge to order a life sentence of preventive detention, hopefully leaving it to executive intervention to examine the applicant and do what is right. Yet it appears from the judge's careful pronouncement that this is what he had in mind. It is wrong for the courts to impose punishment or greater punishment than is merited because of the lack of non-punitive preventive detention. Whether there should or should not be such detention is a question on which I express no opinion. (at p495)

14. I agree with Jacobs J.'s observations on the error in the trial judge's directions on provocation. The appeal should be allowed. One consequential course is to remit the matter to the trial judge for re-sentencing in the light of a thorough expert assessment of the applicant's mental and physical health and of his danger to the community. I think it undesirable to remit this matter. Although this Court is deprived of the advantage of a complete picture, some features are fairly clear. The crime called for substantial punishment but, at least because of the diminished responsibility, not a life term. I think this Court should decide the question for itself, if only to break the " hands-off sentencing " tradition which has so far been followed (see White v. The Queen [1962] HCA 51; (1962) 107 CLR 174 ). This is the first case in which the Court has given special leave to appeal against a sentence. The Parliament contemplated that this Court would in proper cases deal with appeals on sentence, develop principles and give guidance to other courts in the same way as it does in other branches of the law. Once special leave is granted, this Court is empowered to exercise the powers of the Court of Criminal Appeal under s. 5D of the Criminal Appeal Act. (at p496)

15. I agree with Jacobs J.'s proposal. A sentence of twelve years represents punishment not preventive detention. It is not intended to represent any kind of ideal or model sentence for manslaughter. It is the sentence which should be imposed in this particular case, in the absence of any better means provided by law. (at p496)

16. The artificiality of the criminal justice system will be increased if the approach indorsed by the Court of Criminal Appeal in this case is allowed to prevail. There is a tendency not to raise insanity as a defence in many cases where it might well be raised and the considerations which influence legal advisers not to raise the defence also apply to diminished responsibility. For example, if either plea succeeds, the accused is likely to suffer more prolonged detention than if he were convicted without such a plea. In many cases, a successful claim of diminished responsibility would lead, as it did here, to the conclusion that the person is a danger to society. In practice, the accused would generally fare better if he concealed his insanity or diminished responsibility. This paradox results from the apparent absence of any curative treatment or, it seems, any real attempt at treatment (see Report of the Royal Commission into New South Wales Prisons, Mr. Justice Nagle, (March 1978)) and the absence of non-punitive detention. (at p496)

17. If the protection of society requires the applicant to be confined when his imprisonment ends, because he is dangerous, it should only be done ( if it can be done lawfully) by methods outside the criminal justice system. (at p496)

AICKIN J. The circumstances out of which this application for special leave arises and the issues involved are set out in full in the judgment of my brother Jacobs. I do not need to add anything to that statement. (at p497)

2. I have also had the advantage of reading the reasons for judgment of my brother Mason with which I find myself in complete agreement. There is little that I need to add. (at p497)

3. As has been said many times it is not the practice of this Court to grant special leave to appeal against sentence and only very exceptional circumstances could be regarded as warranting a departure from that settled practice. There are, I think, several sound reasons for that practice. Such appeals seldom involve a point of law of general application (White v. The Queen [1962] HCA 51; (1962) 107 CLR 174 ). This Court does not have the relevant experience, which State courts necessarily have, of imposing sentences in the ordinary course of the administration of the criminal law. Moreover, sentencing is essentially a discretionary process and the exercise of that discretion may be expected to conform with the general practice in the particular State. Such practices may not be uniform and moreover are unlikely to be known to this Court. (at p497)

4. Notwithstanding those considerations this case does seem to me to involve a matter of general importance. On that matter I agree with the view expressed by Mason J. that the correct view is expressed in the judgment of Gibbs J. (speaking for the Queensland Court of Criminal Appeal in Reg. v. Pedder Unreported: 29th May 1964. ) which passage he quotes in full. In the light of statements in reported cases on this matter it is desirable that this Court should express its view. I respectfully think that is best done by adopting the language used by Gibbs J. in the passage quoted. (at p497)

5. The question which arises in the present case is how that statement should be applied and what kind of material should be before a court which has to apply it. I agree that the material before the trial judge and the Court of Criminal Appeal was quite inadequate to enable them properly to evaluate the various relevant factors. (at p497)

6. The position is unusual in that it may turn out that the view of the trial judge and of the Court of Criminal Appeal was correct, but the basis upon which that view was arrived at cannot be regarded as adequate, for reasons which are stated by my brother Mason. It is that which warrants the unusual course of allowing the appeal and referring the matter back to the Supreme Court for further examination with the direction that such re-examination be upon the basis of additional information in the form of adequate psychiatric reports which would enable that court to consider whether preventive considerations require that the sentence should be one of life imprisonment and if not what the proper sentence should be. This Court has before it only the same material as was before the trial judge and the Court of Criminal Appeal which I regard as inadequate for the purpose of arriving at any conclusion as to sentence. It is, therefore, not a proper case for this Court to substitute its own view even if, in a case where all the necessary material is available, this Court should substitute its view for that of a State court of criminal appeal. For reasons which I have already stated, State courts are in a much better position than this Court for dealing with questions of sentence and penalties generally. (at p498)

7. Accordingly, I agree that special leave should be granted and the appeal allowed and that the matter be referred back to the Supreme Court for it to determine the proper sentence in the light of further evidence. (at p498)

ORDER

Application for special leave to appeal granted.

Appeal allowed.

Order of the Supreme Court of New South Wales (Court of Criminal Appeal), with respect to sentence, varied by decreasing the term of imprisonment to twelve years' imprisonment, no non-parole period being fixed.