DAL v The State of Western Australia

[2006] WASCA 246

DAL -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 246

Reported Decision:	(2006) 33 WAR 143
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 246
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:42/2005	Heard:	15 JUNE 2006
Coram:	ROBERTS-SMITH JA McLURE JA BUSS JA	Delivered:	20/11/06
No of pages:	33	Judgment Part:	1 of 1
Result:	Appeal allowed Sentences imposed by the learned sentencing Judge including the order for indefinite imprisonment set aside Matter remitted to the learned sentencing Judge for the purpose of sentencing the appellant afresh
Category:	A
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Parties:	DAL THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against sentence Indefinite imprisonment under s 98 Sentencing Act 2004 (WA) Principles Adequacy of reasons of sentencing Judge Whether sentencing Judge failed to make findings of fact in relation to, and take into account, relevant considerations including the appellant's status under the Community Protection (Offender Reporting) Act 2004 (WA) and possible anti­androgen therapy Fixed terms of imprisonment and order for indefinite imprisonment form part of a single sentencing decision If indefinite imprisonment order set aside, the whole sentencing decision should be set aside Whether matter should be remitted to sentencing Judge for re­sentencing Subsequent enactment of Dangerous Sexual Offenders Act 2004 (WA)
Legislation:	Community Protection (Offender Reporting) Act 2004 (WA), s 3, s 24(1), s 26, s 28, s 29, s 46(3), s 51, s 52, s 53, s 63, s 64, s 87, s 93 Criminal Appeals Act 2004 (WA), s 23(1), s 31 Dangerous Sexual Offenders Act 2006 (WA), s 6(1), s 8, s 17 Sentencing Act 1995 (WA), s 98, s 100, s 101
Case References:	Buckley v The Queen (2006) 80 ALJR 605 Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 McGarry v The Queen (2001) 207 CLR 121 McGarry v Western Australia (2005) 31 WAR 69 Penny v The State of Western Australia [2006] WASCA 173 Strong v The Queen (2005) 79 ALJR 1171 Garlett (2000) 111 A Crim R 336 Thompson v The Queen (1999) 73 ALJR 1319

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DAL -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 246 CORAM : ROBERTS-SMITH JA

McLURE JA
BUSS JA

HEARD : 15 JUNE 2006 DELIVERED : 20 NOVEMBER 2006 FILE NO/S : CACR 42 of 2005 BETWEEN : DAL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : O'SULLIVAN DCJ

Citation : R -v- DAL [2005] WADC 51

File No : IND 1473 of 2003

Catchwords:

Criminal law - Appeal against sentence - Indefinite imprisonment under s 98 Sentencing Act 2004 (WA) - Principles - Adequacy of reasons of sentencing

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Judge - Whether sentencing Judge failed to make findings of fact in relation to, and take into account, relevant considerations including the appellant's status under the Community Protection (Offender Reporting) Act 2004 (WA) and possible anti­androgen therapy - Fixed terms of imprisonment and order for indefinite imprisonment form part of a single sentencing decision - If indefinite imprisonment order set aside, the whole sentencing decision should be set aside - Whether matter should be remitted to sentencing Judge for re­sentencing - Subsequent enactment of Dangerous Sexual Offenders Act 2004 (WA)

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA), s 3, s 24(1), s 26, s 28, s 29, s 46(3), s 51, s 52, s 53, s 63, s 64, s 87, s 93

Criminal Appeals Act 2004 (WA), s 23(1), s 31
Dangerous Sexual Offenders Act 2006 (WA), s 6(1), s 8, s 17
Sentencing Act 1995 (WA), s 98, s 100, s 101

Result:

Appeal allowed

Sentences imposed by the learned sentencing Judge, including the order for indefinite imprisonment, set aside
Matter remitted to the learned sentencing Judge for the purpose of sentencing the appellant afresh

Category: A

Representation:

Counsel:

Appellant : Ms H E Prince
Respondent : Mr D Dempster

Solicitors:

Appellant : Andree Horrigan
Respondent : State Director of Public Prosecutions

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Case(s) referred to in judgment(s):

Buckley v The Queen (2006) 80 ALJR 605
Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
McGarry v The Queen (2001) 207 CLR 121
McGarry v Western Australia (2005) 31 WAR 69
Penny v The State of Western Australia [2006] WASCA 173
Strong v The Queen (2005) 79 ALJR 1171

Case(s) also cited:

Garlett (2000) 111 A Crim R 336
Thompson v The Queen (1999) 73 ALJR 1319

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1 ROBERTS-SMITH JA: I agree with Buss JA.

2 McLURE JA: I agree with Buss JA.

3 BUSS JA: The appellant was born on 17 October 1949.

4 On 14 November 2003, the appellant was convicted in the District Court, on his plea of guilty, of 37 offences of a sexual nature. Convictions were recorded and he was remanded for sentencing.

5 The relevant offences were these:

(a) 5 x unlawfully and indecently dealing with a child under the age of 14 years - s 183 Criminal Code (counts 1, 2, 3, 5 and 6);

(b) 1 x aggravated sexual penetration - s 324E Criminal Code (count 4);

(c) 10 x indecently dealing with a child under the age of 13 years - s 320(4) Criminal Code (counts 7, 10, 11, 19, 20, 23, 25, 26, 27 and 30);

(d) 13 x sexual penetration of a child under the age of 13 years - s 320(2) Criminal Code (counts 8, 12 - 18, 21, 22, 24, 28 and 29);

(e) 1 x encouraging a child under the age of 13 years to engage in sexual behaviour - s 320(3) Criminal Code (count 9);

(f) 1 x indecently dealing with a child between the ages of 13 and 16 years - s 321(4) Criminal Code (count 31);

(g) 2 x sexual penetration of a child aged between the ages of 13 and 16 years - s 321(2) Criminal Code (counts 32 and 33);

(h) 1 x encouraging a child between the ages of 13 and 16 years to engage in sexual behaviour - s 321(1) Criminal Code (count 34);

(i) 2 x indecently dealing with a juvenile male - s 322A(3) Criminal Code (counts 35 and 36); and

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(j) 1 x sexually penetrating a juvenile male - s 322A(2) Criminal Code (count 37).

6 The offences were committed between 1 July 1989 and 21 January 2000. The complainant in respect of each count was the appellant's nephew, who was born on 28 December 1981. When the first offence occurred he was aged 7.

7 The appellant committed counts 35, 36 and 37 when the complainant was aged 18. Those counts relate to offences under s 322A of the Criminal Code. That provision was repealed by s 41 of the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA), which became operative from 21 September 2002. The appellant was not charged until 30 May 2003. By reason of s 11 of the Criminal Code, the appellant could not be punished for counts 35, 36 and 37.

8 On 24 and 25 January 2005 and 23 February 2005, the learned sentencing Judge, O'Sullivan DCJ, conducted a sentencing hearing. The appellant did not give evidence at the hearing. Evidence was, however, taken from:

(a) Denise Margaret Cull, a forensic psychologist;

(b) Cinzia Zuin, a psychologist;

(c) Victoria Pascu, a consultant psychiatrist;

(d) Gaynor Sara Hobbs, a forensic psychologist; and

(e) Zdenek Srna, a consultant psychiatrist.

9 On 16 March 2005, the learned sentencing Judge imposed a sentence of immediate imprisonment in respect of each of counts 1 to 34. His Honour then considered issues of cumulation, concurrence and totality, and decided that the appellant should serve a total term of 12 years. It is unnecessary to set out the individual sentences imposed or to identify the sentences ordered to be served cumulatively and those ordered to be served concurrently. Each term of immediate imprisonment was ordered to commence as from 20 June 2003, being the date on which the appellant was placed in custody in relation to the offences in question. His Honour decided not to make a parole eligibility order. In addition to imposing the terms of immediate imprisonment, his Honour made an order, under s 98(1) of the Sentencing Act1995 (WA), that the appellant be imprisoned indefinitely.

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10 The appellant appeals against the order that he be imprisoned indefinitely.

The task of this Court

11 The task of this Court, in examining the grounds of appeal, is to determine whether there was an error made in sentencing the appellant, error being understood in this context, as it was explained in House v The King (1936) 55 CLR 499 at 505:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

See Dinsdale v The Queen (2000) 202 CLR 321, per Gleeson CJ and Hayne J at 324 - 325, [3], [4]. An appellate court may intervene in a sentencing appeal if a material error of fact or law is apparent in the primary Judge's reasons. Also, an appellate court may intervene if error may be inferred on the ground that the result is unreasonable or unjust; that is, the sentence imposed is manifestly excessive or manifestly inadequate. An appellate court may not, however, substitute its own opinion for that of the primary Judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the primary Judge. See Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672, [15].

Section 98 of the Sentencing Act: indefinite imprisonment

12 Section 98 of the Sentencing Act provides:

"(1) If a superior court -

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

(b) does not suspend that imprisonment;and

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

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

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


(a) the exceptional seriousness of the offence;

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

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


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

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


(d) any other exceptional circumstances.

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

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

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

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13 A sentence of indefinite imprisonment begins on the day when the offender would, but for that sentence, be eligible to be released from custody, whether or not under a parole order or a re-entry release order made under the Sentence Administration Act 2003 (WA) while or after serving:

(a) the nominal sentence; or

(b) any other term imposed on the offender.

See s 100 of the Sentencing Act. A prisoner sentenced to indefinite imprisonment may be released at any time after the sentence of indefinite imprisonment begins by means of a parole order made under Pt 3 of the Sentence Administration Act. See s 101 of the Sentencing Act.

14 Section 98(1) empowers a superior court, which is sentencing an offender for an indictable offence to a term of immediate imprisonment without eligibility for parole, to order the offender to be imprisoned indefinitely, in addition to imposing the term of immediate imprisonment. By s 98(2), the Court must not make an order for indefinite imprisonment unless it is satisfied, on the balance of probabilities, that when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society or a part of it, because of one or more of the factors enumerated in pars (a), (b), (c) and (d) of the subsection. Section 98(1) doesnot oblige the sentencing Judge to order the offender to be imprisoned indefinitely merely because the conditions specified in subs (1) and (2) are met. In particular, the sentencing Judge is not obliged to make such an order even if satisfied, on the balance of probabilities, that when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society or a part of it, because of one or more of the factors enumerated in s 98(2). The sentencing Judge has a discretion in deciding whether or not to make an order for indefinite imprisonment, even if the conditions specified in s 98(1) and (2) are met. See McGarry v The Queen (2001) 207 CLR 121 at 125 - 126 [7].

15 In McGarry (2001), Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ made various observations concerning the proper construction of s 98(2). Their Honours noted that the meaning to be ascribed to the expression "a danger to society, or a part of it" is not without difficulty, and then added, at 129 [20] - [21]:

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"A fundamental premise of the criminal law is that conduct is regarded as criminal for the very reason that its commission harms society, or some part of it. On that basis, any risk that an offender may commit some further indictable offence poses a danger to society, or some part of it; the extent of the 'danger' would depend only upon the likelihood of the offender reoffending.

If, however, s 98 were concerned only with the risk of an offender reoffending, the inclusion of pars (a), (c) and (d) in subs (2) was unnecessary. Their inclusion suggests that 'danger to society, or a part of it' means more than that there is a risk, even a significant risk, that an offender will reoffend."

16 The joint judgment in McGarry (2001) noted, at 129 - 130 [22], that each of the paragraphs in s 98(2), on one or more of which any conclusion that when the offender would otherwise be released he or she would be a danger to society or a part of it must be based, has a different temporal aspect. Paragraph (a), which refers to the "exceptional seriousness" of the offence for which the offender is to be sentenced, is concerned with conduct of the offender which has already occurred. Paragraph (b), which refers to the risk that the offender will commit other indictable offences, is concerned with the future conduct of the offender. Paragraph (c), which refers to the "character of the offender", is concerned with an assessment of the offender's character which is to be made as part of the sentencing process. Paragraph (d), which refers to "any other exceptional circumstances", may permit the sentencing Judge to consider various matters which suggest that when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society, or a part of it.

17 In McGarry (2001), Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ also noted, at 130 [23], that the breadth of the matters upon which a conclusion of danger to society, or a part of it, may be based suggests that "what is required is more than a bare conclusion that it is probable that the offender will commit some indictable offence in the future". Their Honours elaborated on this point, as follows:

" … That suggestion is reinforced by the use of the word 'exceptional' in the phrases 'exceptional seriousness of the offence' and 'exceptional circumstances'. More than the probability of further offending must be shown. Read as a whole, and giving due weight to the repeated reference to

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'exceptional', the sub-section requires attention to whether, were the offender to be released at the end of the nominal sentence, the offender would engage in conduct, the consequences of the commission of which would properly be called 'grave' or 'serious' for society as a whole, or for some part of it. Then, and only then, could it be concluded that the offender would be a 'danger to society, or a part of it'."

18 The joint judgment in McGarry (2001) then gives consideration, at 130 [24], to the provisions of s 98(3):

" … That sub-section uses the introductory words '[i]n deciding whether an offender is a danger to society, or a part of it'. To provide, as does par (b) of sub-s (3), that in deciding that question the court may have regard to such evidence as it thinks fit is understandable. However, to provide, as does par (a), that in deciding that question the court is not bound by s 6 of the Sentencing Act is more difficult. Section 6 sets out certain basic principles of sentencing that courts in Western Australia are to apply, including the principle of proportionality. Those principles of sentencing, and in particular the principle of proportionality, say nothing about how a court should go about making a finding of fact about risk of danger to society. There may appear to be, then, some questions about the meaning to be given to s 98(3)(a). It is, however, not necessary to pursue that question beyond saying that the evident purpose of s 98 is to provide for detention of an offender beyond the time that would result from the imposition of a sentence proportionate to the offender's criminality. It follows that questions of proportionality fall to be considered in the fixing of the nominal sentence but do not fall to be considered in deciding whether to make an order for indefinite imprisonment."

Their Honours emphasised, at 130 - 131 [25], the importance of recognising that considerations of public protection are relevant both in fixing the nominal sentence and in deciding whether to make an order for indefinite imprisonment. They said:

"It is important to recognise that fact because the imposition of a relatively short nominal sentence (as was the case here) may well suggest that the offender's conduct on that occasion was not such as to warrant the description of the offender as 'a danger to society, or a part of it'. In such a case, a conclusion that the offender would be a danger to society would, therefore,

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depend upon matters other than the commission of the offence or offences for which the offender was being sentenced."

19 Recently, in Buckley v The Queen (2006) 80 ALJR 605, the High Court stressed again, this time in the context of s 163 of the Penalties and Sentences Act 1992 (Qld), the exceptional nature of the power to impose an indefinite sentence. The Court held that a proper exercise of the power to impose an indefinite sentence involves an understanding of why it is exceptional, and careful attention to the considerations that call for its exercise, including the protective effect of the finite sentence that would otherwise be imposed. The power to impose an indefinite sentence is to be exercised sparingly, and then only in a clear case. Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ said, at 607 [6] - [7]:

"We are not presently concerned with a case, such as Chester v The Queen ((1988) 165 CLR 611; 63 ALJR 75) or McGarry v The Queen ((2001) 207 CLR 121; 75 ALJR 1682) where the offending would have attracted a finite or nominal sentence in the order of about three or four years. Nor are we concerned with a case where the available maximum penalty was plainly inadequate to serve a necessary protective purpose. On any view of the matter the appellant was facing a long sentence. Even so, it is important to bear in mind what was said in Chester and McGarry about the imposition of an indefinite sentence. Such a sentence involves a departure from the fundamental principle of proportionality. The statute assumes that there may be cases in which such a departure is justified by the need to protect society against serious physical harm; but a judge who takes that step must act upon cogent evidence, with a clear appreciation of the exceptional nature of the course that is being taken. Furthermore, as was pointed out in McGarry ((2001) 207 CLR 121 at [22] - [23]; 75 ALJR 1682) the assessment of risk required by the statute may involve temporal issues requiring careful examination.

In R v Leitch ([1998] 1 NZLR 420 at 429), the New Zealand Court of Appeal said that, when considering the exercise of its discretion, a sentencing court 'will ordinarily consider whether the protective purpose of preventive detention could reasonably be met by an available finite sentence of imprisonment'. Similarly, in the recent Victorian case of R v Davies ((2005) 153 A Crim R 217 at 238), Charles and Nettle JJA said that, before answering the critical question whether the case was of

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such exceptional rarity that an indefinite sentence should be imposed, it was necessary first to consider what fixed term of imprisonment would have been appropriate. The Queensland legislation applied in the present case requires a judge to specify a nominal sentence, which becomes relevant for purposes of review and for the consequences of decisions made on review. The significance of the nominal sentence, however, goes beyond that. In the first place, where a judge, sentencing a dangerous offender, is deciding whether the protection of society requires an indefinite sentence, the protective effect of a finite sentence, fixed according to ordinary sentencing principles, including the need to protect the public (Veen v The Queen (No 2) (1988) 164 CLR 465; 62 ALJR 224) is a matter to be weighed carefully. An indefinite sentence is not merely another sentencing option. Much less is it a default option. It is exceptional, and the necessity for its application is to be considered in the light of the protective effect of a finite sentence. Second, the available finite sentence sets the time frame by reference to which the temporal issues earlier mentioned are to be examined. As will appear, in this case the sentencing judge set a nominal sentence of 22 years, having rejected a prosecution submission that it should be life. Since it was clear that, even if an indefinite sentence were not imposed, the appellant would be in custody for many years, estimations of future risk were being undertaken in a temporal context that necessarily gave rise to substantial uncertainty."

Later in the joint judgment, at 612 - 613 [42] - [44], their Honours gave further consideration to the significance of the protective effect of a finite sentence in determining whether an indefinite sentence should be imposed:

"Serious violent offenders will commonly present a danger to the community. Protecting the community may be one of the purposes of the imposition of a lengthy custodial sentence. Such custodial sentences remain the norm for the punishment of offenders convicted of serious offences of violence. Indefinite sentences are not the norm. Part 10 of the Act proceeds upon the basis that there may be certain cases where the extraordinary step of imposing an indefinite sentence may be justified as a response to the risk of serious danger to the community. The risk to be weighed is the risk 'if an indefinite sentence were not imposed': s 163(4)(d). Where the appropriate finite term,

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according to ordinary sentencing principles, is 22 years, then it is necessary to consider whether the protective purpose in contemplation could reasonably be met by such a term. If it were otherwise, the consequence would be the banalisation of indefinite imprisonment.

This is a case in which, on the available evidence, a sentencing court could properly have reached a conclusion that Pt 10 of the Act should be applied. On the other hand, there were important considerations of proportionality militating against such a conclusion. These included (1) the absence of any major criminal convictions, notably for any acts of violence, prior to the subject offences; (2) the appellant’s pleas of guilty; (3) the fact that the subject charges, although extremely serious, all related to events that occurred within an interval of nine months and involved three happenings. The details of the sexual activities with animals were unproved. They had never been the subject of any criminal charges under the Code. The appellant was not to be punished additionally in respect of those events. Any feelings of distaste or revulsion concerning such activities should not enter into the sentencing process. The reasoning of the sentencing judge did not deal with the issues, including issues of predictability, involved in deciding why a sentence of 22 years should not have been imposed, having regard to relevant sentencing considerations, including the need to protect the community. One of the matters of particular difficulty in a case such as the present is the uncertainty that is necessarily involved in estimating the danger to the community of a person who, on any view, will be incarcerated for such a long time. The operation of the parole system, and the possibility of treatment while in prison, are matters that call for close attention. In a particular case, it may be that the system of review under Pt 10 provides the only appropriate method of relating the interests of the community to the requirements of justice to an individual offender. Nevertheless, the protective potential of the ordinary sentencing regime needs to be examined first and most closely before deciding to depart from it. Another difficulty raised by the present case, addressed in some detail by the psychiatrists, but referred to only briefly and without analysis in the reasons for sentence, is the relationship between the appellant’s paraphilia and the level of risk that he would be likely to present in, say, 20 years time.

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The Court of Appeal should have given leave to appeal, and reconsidered the exercise of sentencing discretion involved in the decision to apply Pt 10 of the Act. In doing so in accordance with the statute and accepted sentencing principles, it could have upheld the sentencing judge's order of indefinite detention. However, such an outcome was by no means inevitable. It is important to say once again, as Hayne JA said in Moffatt ([1998] 2 VR 229 at 255), that the power to impose an indefinite sentence is one 'to be sparingly exercised, and then only in clear cases'. This Court has repeatedly endorsed those remarks. From the reasons of the sentencing court it must be evident that they have been given their full weight whenever a sentence of indefinite detention is imposed."

20 In McGarry v Western Australia (2005) 31 WAR 69, Wheeler JA (with whom Roberts-Smith and McLure JJA agreed) stated and explained the requirements of pars (a) to (d) of s 98(2) of the Sentencing Act. In summary, her Honour said, at 76 - 78 [26] - [29]:

(a) Paragraph (a) appears to contemplate that there may be offences of such seriousness that the commission of a single such offence will, of itself, indicate that the offender is a danger to society, or a part of it. Although it is open to a sentencing Judge to determine that the relevant danger exists based upon a single offence alone, it is unlikely that this factor, of itself, will often be decisive. It is more likely that it will fall to be considered together with some of the other factors referred to in s 98(2).

(b) As to par (b):

"First, it is not a risk of any offending which will suffice. Although the court is not required to identify what particular offence or offences the offender is likely to commit (and in many cases, one would expect that there would be a range of probable offending), it must be sufficiently satisfied of the nature of the likely offending to be able to form a view that the offences will be indictable ones. Further, satisfaction that one other indictable offence, at some time, may be committed is plainly not enough. It is a risk that the offender 'will' (not may) commit indictable offences, in the plural. The type

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of indictable offences to which the subsection directs attention are to be ascertained from its context. That context includes the nature of the order which will be made once the court reaches the required degree of satisfaction, together with indications of the nature of the task which are to be derived from the statutory language, including the reference to 'other exceptional circumstances' in par (d)".

(c) Paragraph (c) involves an inquiry into whether there is anything in any psychological, psychiatric or medical reports, or in the offender's criminal history, examined in detail, which indicates that the offender is likely to engage in conduct, the consequences of which could be "grave" or "serious" for society, or a part of it.

(d) Paragraph (d) must be considered in the context of s 98 as a whole. It is unlikely that this factor will often, of itself, be decisive, although cases can be envisaged in which there might be room for argument about whether the matter fell squarely within one of the other paragraphs, but where there was, nevertheless, a very high degree of probable danger established in relation to the offender.

The appellant's criminal record

21 The appellant had a significant history of serious sexual offending. The learned sentencing Judge set out, at [43] - [48], details of that prior offending:

"It commences on 15 July 1975 when he was convicted of carnal knowledge of a girl under the age of 13 years. He was fined $200. According to the statement of material facts read to the court the girl was his sister-in-law.

On 4 March 1987 the offender was convicted of offences of carnal knowledge, attempted carnal knowledge and sexual penetration without consent of a girl under the age of 16 years. The girl was his natural daughter. He was sentenced to 6 years imprisonment. The first offence occurred when the daughter was 10 and the second six months later. The third occurred when she was 13.

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It is pointed out in the State's written submissions in relation to this matter that the offending commenced in the second half of 1989, not long after his release from prison having served the sentence of 6 years imposed upon him in respect of the offences against his daughter.

On 20 November 1991 the offender was convicted after trial of two offences of unlawful and indecent dealing with a male under the age of 13 years.

These offences were committed in July 1990 against a complainant who was the son of a woman he had befriended. The offending involved touching the boy on his penis and sucking it. At this time the offender was on parole in respect of the offences against his daughter. He was sentenced to imprisonment of one year for the first offence and three for the second and denied eligibility for parole.

The offender was released from prison on 22 June 1993 and he then resumed his offending against the complainant the subject of the charges on the indictment before me."

The reasoning of the learned sentencing Judge

22 The learned sentencing Judge referred to the judgment of the High Court in McGarry(2001) and then considered, in relation to the appellant, each of pars (a), (b) and (c) of s 98(2).

23 The learned sentencing Judge said, as to par (a), at [107]:

"In my view it is clear that the [appellant's] conduct in committing these offences constituted criminality of an exceptionally serious kind. He engaged in grooming the complainant from a very early age for purposes of his own sexual gratification and committed gross breaches of trust over a prolonged period of time."

His Honour was satisfied that the offences in question were of "exceptional seriousness when measured on a general scale of criminality".

24 The learned sentencing Judge said, as to par (b), at [109] - [114]:

"All the experts including Dr Srna are in agreement that the offender is at present a danger to a part of society, namely

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children with whom he might have contact, because he is at a high risk of offending in a sexual manner. That risk will continue unless he can be effectively treated.

I have already noted Dr Pascu's opinion that the offender's prognosis for rehabilitation is very guarded.

Ms Zuin is perhaps even more cautious in her approach, stating in effect that once an offender is assessed as a high risk of offending on an actuarial basis he is to be regarded as always a high risk. Ms Zuin said that clinical assessments can be unreliable and an actuarial rating of risk is considered more accurate.

It is true that Dr Srna is more optimistic than the other experts about the chances of effective treatment but he, of course, is of the view that [the appellant] did not have an anti-social personality disorder and I have said that I prefer the opinion of Dr Pascu that he does.

In any event it is important to note that Dr Srna nevertheless considers it essential that the offender be supervised upon his release from prison. …

In my opinion where eligibility for parole has been denied, as I have decided it should be, and there is, as a consequence, no opportunity for effective supervision of the offender after his release, the evidence strongly supports the conclusion that he will constitute a high risk of re-offending in a sexual manner."

25 The learned sentencing Judge said, as to par (c), at [115] - [116]:

(a) He accepted Dr Pascu's evidence that the appellant suffers from an antisocial personality disorder.

(b) He accepted the evidence of Dr Pascu and Dr Srna that this condition, combined with paedophilia, is unlikely to be successfully treated.

(c) The appellant had a long history of sexual offending against young children of both sexes with whom he has come into contact. The offending had involved deceitful behaviour, gross breaches of the confidence which had been placed in him by the children themselves and the

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adults responsible for them, and abuses of the authority and influence which adults habitually have and exercise in relation to children.

26 The learned sentencing Judge concluded that it was more probable than not that the appellant would be likely to be a danger to children upon his release from custody. His Honour described that conclusion as "compelling".

Grounds of appeal

27 The appellant contends, in his grounds of appeal, that the learned sentencing Judge erred in law and in fact in making the order for indefinite imprisonment in that he failed to take into account relevant considerations, as follows:

(a) the appellant was a "reportable offender" for the purposes of the Community Protection (Offender Reporting) Act 2004 (WA) ("the Reporting Act"), in consequence of his Honour having sentenced him for the offences in question;

(b) the appellant was willing to undergo anti-androgen therapy; and

(c) the appellant had not been charged with any sexual offences occurring after 21 January 2000.

I will deal in turn with the issues raised by each of the grounds.

The Reporting Act

28 The long title to the Reporting Act reads:

"An Act to require certain offenders who commit sexual or certain other serious offences to keep police informed of their whereabouts and other personal details for a period of time to reduce the likelihood that they will re-offend and to facilitate the investigation and prosecution of any future offences that they may commit, to enable courts to make orders prohibiting certain offenders from engaging in specified conduct, and for related purposes."

29 I have mentioned that the appellant became a "reportable offender", for the purposes of the Reporting Act, as a result of being sentenced by
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the learned sentencing Judge for the offences in question. By s 24(1), the appellant must report his personal details to the Commissioner of Police within 7 days after he ceases to be in custody. Those details include his name, date of birth, address, names and ages of children residing in the same household or with whom the appellant has regular unsupervised contact, details of his employment, details of any club or organisation with which he is affiliated (where the club or organisation has members who are children or conducts activities in which children participate), details of the offender's motor vehicle and details of travel arrangements. See s 26. By s 28, the appellant is thereafter required to report his personal details to the Commissioner each year and, also, as required by the Commissioner. Section 29 requires the appellant to report to the Commissioner any change in his personal details within 7 days after that change occurs. The appellant must comply with the reporting obligations for the remainder of his life. See s 46(3). Subject to certain conditions, a reportable offender who is required to report for life may apply to the District Court for the obligations to report to be suspended: s 51 to s 53. The conditions include that a period of 15 years has passed (ignoring any period during which the reportable offender was in Government custody) since he or she was last sentenced or released from Government custody in respect of a "reportable offence" or a "corresponding reportable offence" (as defined in s 3), whichever is later: s 52(a). Penalties are imposed for a failure to report or for the reporting of false or misleading information. See s 63 and s 64.

30 Section 87 empowers the Commissioner to apply to a court for a "prohibition order" prohibiting a reportable offender from engaging in specified conduct. The court may make an order prohibiting a reportable offender from engaging in conduct specified in the order, if the court is satisfied that the person poses a risk to the lives or sexual safety of one or more children, or children generally, and that making the order will reduce the risk. By s 93(1), a prohibition order may prohibit conduct of any of the following kinds:

(a) associating with or other contact with specified persons or kinds of persons;

(b) being in specified locations or kinds of locations;

(c) engaging in specified behaviour;

(d) being in specified employment or employment of a specified kind.

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Section 93(2) provides that s 93(1) does not limit the kinds of conduct that may be prohibited by a prohibition order. By s 93(3), a prohibition order may prohibit conduct absolutely or on the terms that the court considers appropriate.

31 In McGarry (2005), Wheeler JA held, at 95 [111], that the Reporting Act may be relevant both in relation to a decision whether to make an offender eligible for parole and in relation to whether to make an order for indefinite imprisonment. Her Honour said, at 96 [115]:

"The reporting requirements of the Act may well deter some offenders from offending. It may be that reporting of some of the specified matters may alert the Commissioner to a change in the offender's behaviour which indicates that offending is more likely; the obvious example is the offender who regularly offends against primary school aged children who are unrelated to him, and who reports that he has moved to reside opposite a primary school. In such circumstances, it may be that the Commissioner would undertake extensive surveillance which could prevent offending, or might apply for a prohibition order. Reporting may also be effective in deterring offenders such as those who have in the past regularly changed their address as a means of avoiding detection. The appellant does not seem to fall into that category, since he has never, it seems, been difficult to locate. There is perhaps a possibility that being required to report may lead the appellant to feel that he is under increased surveillance, and that detection of any offending on his part is more likely, and he may thereby be to some degree deterred from further offending. It is difficult to evaluate whether this is a real as opposed to a theoretical possibility, but it is plainly something which it would be appropriate for a sentencing Judge to consider."

32 The Reporting Act was referred to in evidence and in submissions before the learned sentencing Judge. Dr Pascu said, in the course of cross-examination by counsel for the appellant, at AB 155 - 156:

"Did you take into account the reporting obligations under [the Reporting Act]?---Yes, which ideally would be great if they would work. Yes.

That would be great if he followed them?---Yeah. Well, if he followed them and if they would be available at the intensive level that is needed.

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What do you mean 'at the intensive level that's needed'?---I think that asking a sex offender to report once a week at the police and that fulfils the criteria from the legal point of view that he's fine, he won't offend, I think that's naïve. As far as I'm concerned, it's fairly naïve to expect that that would stop someone from reoffending.

Would it not though reduce the risk of reoffending in the sense that police know?---No, I don't think so.

… Would it at least depend upon his willingness to comply with that law?---Well, we're talking about someone who over at least 30 years is doing something which is against the law, so I would have huge reservations to say that, yes, I would rely on his moral obligation to report to the police once a week.

Right. What about if it was a legal, not a moral, obligation?---It's illegal to abuse children and he's done that for 30 years.

…"

By contrast, Dr Srna referred to the Reporting Act, in his evidence-in-chief, at AB 195, as "a significant step towards decreasing dangerousness of offenders of this type released in the community".

33 The appellant, in his written submissions dated 15 February 2005 to the learned sentencing Judge, submitted that, on the appellant becoming a reportable offender, there would be less risk that he would commit other indictable offences. The provisions of the Reporting Act in relation to the reporting of information, and the power of the Commissioner of Police to apply to a court for a prohibition order, would reduce the risk of the appellant being, on release, a danger to society or a part of it. Counsel for the appellant, in his oral submissions, informed his Honour that he placed "considerable reliance" on the Reporting Act.

34 Unfortunately, the learned sentencing Judge did not refer to the Reporting Act in his reasons. Before this Court, counsel for the respondent conceded that it was not open to him to suggest that his Honour had considered the provisions of the Reporting Act, in the context of deciding whether the appellant, when he would otherwise be released from custody in respect of the sentences imposed, would be a danger to society or a part of it, but had merely overlooked mentioning it in his reasons. That concession was properly made.

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35 In my opinion, the learned sentencing Judge was bound to take into account, in deciding whether to order the appellant to be imprisoned indefinitely, that:

(a) the appellant became a reportable offender, for the purposes of the Reporting Act, as a result of being sentenced by his Honour for the offences in question; and

(b) the appellant, on his release, would be subject to the regulatory regime established under that Act.

36 The learned sentencing Judge's failure to take those matters into account, in exercising the discretionary power under s 98(1) of the Sentencing Act, constituted an error of law. His Honour should have made a reasoned evaluation, based on the facts as he found them, as to:

(a) whether the provisions of the Reporting Act would be likely to diminish the risk that the appellant would commit other indictable offences when he would otherwise be released from custody in respect of the nominal sentences imposed; and

(b) if so, whether, having regard to all relevant considerations, when the appellant would otherwise be released from custody in respect of the nominal sentences imposed, he would be a danger to society or a part of it.

37 I should mention, in fairness to his Honour, that the sentencing hearing was conducted, and his Honour's reasons for decision were delivered, before this Court gave judgment in McGarry (2005).

Anti-androgen therapy

38 An anti-androgen is a synthetic hormone which reduces the recipient's level of circulating testosterone, which, in turn, reduces his level of libido. The rationale is that anti-androgen medication may reduce the risk of a sex offender re-offending.

39 Ms Zuin referred to anti-androgen medication in a report dated 9 April 2004 which was tendered in evidence. She said, relevantly (at AB 336):

"[The appellant] will be able to access treatment during his term of incarceration and as per my previous report this may be better structured by enabling [the appellant] to participate in an

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Intensive Sex Offender Treatment Programme at both the start and end of his prison sentence with intermittent counselling in between to maintain a focus on relapse prevention. Aside from consideration for antiandrogen medication there is little else that can be recommended by way of treatment. It must be noted that measures for determining the success of antiandrogen medication also rely on self report as penile plethysmography is not used in Western Australia. A penile plethysmograph measures penile tumescence in response to various stimuli shown to sex offenders which include pictures of children. The physical response to such stimuli is considered to determine ongoing sexual interest."

Ms Zuin expanded on these opinions in examination-in-chief and cross-examination. She expressed reservations as to the effectiveness of anti-androgen medication as a strategy for reducing the risk of a sex offender re-offending.

40 In a brief literature review set out in an appendix to a report dated 22 March 2004 which was tendered in evidence, Dr Pascu noted that although the number of studies of sex offenders treated with anti-androgens is still small, this medication appears promising in their treatment. Studies have shown that during the active phase of the medication, patients reported decreases in some aspects of their sexual behaviour. In all of the studies, however, plethysmography "did not consistently support patient's self-report". In her oral evidence before the learned sentencing Judge, Dr Pascu reiterated her pessimism as to the usefulness of anti-androgen medication. She said, in evidence-in-chief (at AB 145 - 146):

"Antiandrogens are one of the biological treatments that can be used for treatment of sexual offending. I think when we talk about treatment, including antiandrogens, we have to think about the theoretical treatment which is in an ideal world type of treatment and then there is the real life treatment availability, like, what is there, here and now. If we talk about antiandrogens only, it's important for me to highlight that a person who - a sex offender in prison may participate in a sex offender treatment program because they have to. They are there. They can't get away with it, not participating if they want to shorten their term. They may be prescribed antiandrogens because they are there and they may want to shorten their term. If the person is released on a parole or any kind of a community

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order, they can - that order can enforce their participating in the so-called maintenance sex offender treatment program in the community which is once a week for three hours a week and may be it will have them enforce the use of antiandrogens. However, when the person becomes a free person there is nothing to make sure that this person will comply with sex offender treatment program and the person will comply with antiandrogen. So he may or may not take it. There is no way of ensuring that a person - because antiandrogens are medications which can cause lots and lots of side effects. They are not very nice to be taken so a person really needs to be motivated. In this particular case, because the defendant doesn't have a treatable psychiatric disorder there isn't even the ability to use the Mental Health Act to ensure that he takes his medication. These medications can be in oral form or injectable form but, as I mentioned before, there is no way of ensuring that he will take it."

41 Dr Srna, in a report dated 12 October 2004 which was tendered in evidence, referred to Ms Zuin's observation that penile plethysmography is not used in Western Australia, and said:

"To my knowledge, penile plethysmography has been successfully used in Western Australia in the sex offenders' population for research purposes. Should treatment with antiandrogen be instituted in this case, I am fairly confident that access to penile plethysmography could be made available."

Dr Srna also said, relevantly:

"There is an absence of [the appellant] ever [taking] part in an intensive sex offender treatment program whilst fully admitting to paedophilic behaviour resulting in his imprisonment, and he has never been treated with an antiandrogen regime and/or SSRI agents.

Consequently and on the balance of probabilities I conclude that [the appellant] has a significant potential in responding to the abovementioned measures provided they are coordinated and that appropriate forensic psychiatric follow-up is arranged upon his release in the future."

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In examination-in-chief, Dr Srna explained why he had a different view from Dr Pascu in relation to the potential utility of anti-androgen therapy. His evidence (at AB 198 - 199) was as follows:

" … Do you have a different view than Dr Pascu on the usefulness or otherwise of antiandrogen therapy for this man?---Yes, I do. I'm not quite sure where Dr Pascu's information comes from but certainly there are studies indicated that are in a sex offender group treated with antiandrogens more - in the control group there was about a 58 per cent reoffending rate and in the treated group it was only about an 18 per cent reoffending rate. Some studies have different figures but very similar to this. So provided the person is compliant with the treatment there can be a significant reduction in sex drive achieved and hence consequently limited reoffending potential. Sex drive in this case is very important. As we see in many reports, the offender himself recognises that he has been always over-sexed or his drive has been always very high, so the biological element of his offend is very important and hence treatment of that particular issue is of utter importance here.

And the success or otherwise depends upon - sorry, meaning his success or otherwise to that sort of therapy is going to depend upon either self-report or the thing known as the penile plethysmograph. Would that be right?---That's correct. There are essentially three modes of measuring. One of these is the self report which is known chronically to be unreliable. Then there is also the penile plethysmography which to my knowledge has been used and is being used in WA as a research tool and is reasonably easily obtainable if the SOTP personnel were interested. But also there is a tool developed by certain researchers which is currently being successfully used overseas and which can be easily imported, which is measuring gaze, the length of gaze. So the offender is presented with various pictures of various acts, including obviously the type of offending acts that they have been charged with, and subconsciously they focus for a certain amount of time on certain pictures. They're not even aware of that but it has been proven that they actually focus more on the pictures that they are sexually aroused with, so this can be measured and compared at the end of the therapy as another tool of seeing whether actual treatment is effective.

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Does this offender here, [the appellant], qualify, for want of a better word, if he was going to go and see a GP or a psychiatrist? Is he the sort of person who could be prescribed antiandrogens?---Absolutely."

Dr Srna was cross-examined in relation to the studies which indicated that 18 per cent of the group treated with anti-androgen medication reoffended. He said (at AB 218), not surprisingly, that for each of those 18 per cent who reoffended, the treatment had been unsuccessful. Dr Srna added that research never concentrates on individuals. It was possible, however, based on the studies that had been undertaken and the personal characteristics and circumstances of a sex offender, to express an opinion as to the probability of the offender being treated successfully with anti-androgen medication and other therapeutic programs.

42 As I have mentioned, the appellant did not give evidence at the sentencing hearing. The source of the appellant's alleged willingness to undergo anti-androgen therapy was comments to that effect made to Dr Pascu and Dr Srna. See Dr Pascu's report dated 10 December 2003 and Dr Srna's report dated 12 October 2004.

43 Although the issue of the appellant possibly undergoing anti-androgen therapy was dealt with in evidence and in submissions before the learned sentencing Judge, it is not referred to in his Honour's reasons.

44 In my opinion, the learned sentencing Judge made an error of law in failing to make findings of fact as to whether the appellant was willing to undergo anti-androgen therapy and, if he was, as to whether that therapy would be likely to reduce the risk of the appellant committing other indictable offences when he would otherwise be released from custody in respect of the nominal sentences imposed. His Honour's findings of fact in relation to those matters were relevant considerations in deciding whether to order the appellant to be imprisoned indefinitely.

The appellant had not been charged with any sexual offences occurring after 21 January 2000

45 In June 2003 the appellant was charged with the offences in question. He had not been charged, however, with any sexual offences occurring after 21 January 2000. Further, there were no allegations that he had committed any offences between 21 January 2000 and June 2003. The learned sentencing Judge did not mention those facts in his reasons.

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46 Although the learned Judge did not state in his reasons that the appellant had not been charged with any sexual offences occurring after 21 January 2000, it is apparent from his Honour's reasons, considered as a whole, that he paid careful regard to the appellant's record of sexual offending. His Honour noted:

(a) at [4], that the offences in question occurred between 1 July 1989 and 21 January 2000;

(b) at [88], that the appellant was taken into custody for the offences in question on 20 June 2003; and

(c) at [42] - [48], in effect, that the appellant's past record of sexual offending in relation to other children than the complainant in question, occurred between 15 July 1975 and 1990/1991.

In the circumstances, I am not persuaded that his Honour did not take into account, in deciding whether to make an order for indefinite imprisonment, that the appellant had not been charged with any sexual offences occurring after 21 January 2000.

The Dangerous Sexual Offenders Act 2006 (WA)

47 The Dangerous Sexual Offenders Act 2006 (WA) provides, relevantly, for the detention in custody of persons of a particular class. The Act came into operation on 13 May 2006.

48 Section 8(1) provides that the Director of Public Prosecutions may file with the Supreme Court an application for orders under, relevantly, s 17(1) in relation to a person (the "offender") who is under sentence of imprisonment wholly or in part for a "serious sexual offence", as defined in s 3 of the Act. Section 8(1) applies whether the sentence was imposed before or after the commencement of the Act and whether or not the person under sentence of imprisonment is in custody: s 8(2). If the person under sentence of imprisonment is in custody, the application cannot be filed unless there is a possibility that the person might be released from custody within the period of six months after the application is made: s 8(3).

49 By section 6(1), the Attorney-General may make an application or give a consent that the Director of Public Prosecutions may make or give under the Act.

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50 Section 17(1) provides, relevantly, that if the court hearing an application for a continuing detention order finds that the offender is a "serious danger to the community", as to which see s 7 of the Act, the court may:

(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or

(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.

By s 17(2), in deciding whether to make an order under s 17(1), the paramount consideration is to be the need to ensure adequate protection of the community.

51 The Attorney-General, in his second reading speech in relation to the Bill which became the Dangerous Sexual Offenders Act, said, relevantly, at pp 7005 - 7006 (Western Australian Parliamentary Debates, Hansard, Legislative Assembly, 9 November 2005):

" …

The bill will enable the Supreme Court to order the post-sentence preventative detention or supervision of sex offenders who pose a serious danger to the community. These new laws will complement the existing provisions in part 14 of the Sentencing Act 1995, which allows a court to impose an indefinite sentence on an offender. If a superior court sentences an offender for an indictable offence to a term of imprisonment, does not suspend that imprisonment and does not make a parole eligibility order under part 13 of the Sentencing Act 1995 in respect of that term, it may in addition to imposing the term of imprisonment for the offence - the nominal sentence - order the offender to be imprisoned indefinitely. Indefinite imprisonment must not be ordered unless the court is satisfied on the balance of probabilities that, when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society or a part of it. An application for an indefinite sentence can only be made as part of the sentencing process at the time of conviction.

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This bill provides a process separate from the sentencing process for detaining persons who have been convicted of a serious sexual offence and whose risk of reoffending demands that the community be protected. This bill recognises the priority that must be given to protecting the public, our families and children from the serious danger that a person, having already been convicted and imprisoned for committing a serious sexual offence, poses to the community because of his propensity for committing such an offence again.

Under these new laws, if there is cogent evidence indicating that a person convicted of a serious sexual offence and who is under a sentence of imprisonment wholly or in part for that offence poses a real risk of reoffending, the Director of Public Prosecutions or the Attorney General can apply to the Supreme Court for orders requiring the person to submit to psychiatric assessment and be detained in custody. Serious sexual offences are sexual offences in the Criminal Code for which the maximum penalty that may be imposed is seven years or more. When such an application is made, the court can order that the person undergo a risk assessment by two appropriately qualified psychiatrists, who must prepare a report for the court on the level of risk posed by the person. The court is required to assess the person's risk of reoffending. It can impose either a continuing detention order or a supervision order containing strict supervision conditions.

The new law will apply to any person under sentence of imprisonment from the time the law comes into effect, regardless of when his offence was committed. If the person under sentence of imprisonment is in custody, the application cannot be made unless there is a possibility that the person might be released from custody within the period of six months after the application is made. This is to ensure that the person is able to take full advantage of any opportunities for rehabilitation offered during the term of imprisonment and orders are not applied for prematurely. Applications can also be made in relation to a person who is under a sentence of imprisonment not in custody but in the community.

… "

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52 The Act was passed and came into operation after the sentencing hearing in relation to the appellant was conducted and the learned sentencing Judge's reasons for decision were delivered. If his Honour had not made an order for indefinite imprisonment, it would be open to the Director of Public Prosecutions or the Attorney-General to make an application under the Act, within the period prescribed by s 8(3), for a continuing detention order in respect of the appellant.

Should the appeal be allowed and, if so, what orders should be made?

53 Section 23(1) of the Criminal Appeals Act2004 (WA) provides:

"An offender convicted of an offence on indictment may appeal to the Court of Appeal against any or all of the following decisions -

(a) the conviction;

(b) the sentence imposed on the offender or any order made as a result of the conviction;

(c) a refusal to make an order that might be made as a result of the conviction."

54 Section 31 of the Criminal Appeals Act provides, relevantly:

"(1) This section applies in the case of an appeal commenced by an offender under section 23, … against -

(a) the sentence imposed or any order made as a result of -

(i) a conviction on indictment;or

(ii) …;


(b) a refusal by a superior court to make an order that might be made as a result of such a conviction.

…

(3) Unless under subsection (4) the Court of Appeal allows the appeal, it must dismiss the appeal.

(4) The Court of Appeal may allow the appeal if, in its opinion -

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(a) in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed;or

(b) in the case of an appeal referred to in subsection (1)(b), an order should have been made.

(5) If the Court of Appeal allows an appeal referred to in subsection (1)(a), it must set aside the sentence and -

(a) may instead impose a new sentence that is either more or less severe;or

(b) may send the charge back to the court that imposed the sentence to be dealt with further.


(6) If the Court of Appeal allows an appeal referred to in subsection (1)(b), it -

(a) may make any order that should have been made;or

(b) may send the charge back to the court that refused to make the order to be dealt with further."

55 In McGarry(2001), Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said, at 126 [8] - [9]:

"The Criminal Code (WA) makes separate provision for appeals to the Court of Criminal Appeal against an order for indefinite imprisonment (s 688(1a)(a)) and against any other sentence (s 688(1a)(b)). The former lies as of right; the latter lies only with the leave of the Court of Criminal Appeal. That might be thought to suggest that two appellate processes had been engaged in the present case - one concerning the order for indefinite imprisonment and the other concerning the nominal sentence. Even if that were so, it should not obscure the fact that the decision to make an order for indefinite imprisonment, and the decision fixing the nominal sentence, form part of a single sentencing decision.

It follows that if an appellate court concludes that the sentencing judge's discretion miscarried in fixing the nominal term of imprisonment, the whole of the sentence imposed by the sentencing judge, including the order for indefinite

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imprisonment, should be set aside and the appellate court would then be obliged itself to re-sentence the offender. As s 689(3) of the Criminal Code provides, if the Court of Criminal Appeal 'think that a different sentence should have been passed', the Court should 'quash the sentence ... and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant ... stands convicted'. The question would not be, as the Court of Criminal Appeal appears in this case to have thought it to be, whether it had been open to the sentencing judge to make the order for indefinite imprisonment which had been made. The sentencing discretion being shown to have miscarried, there was no occasion or need to consider whether it could be separately demonstrated that the sentencing judge's discretion to make an order for indefinite imprisonment had miscarried. It was for the Court of Criminal Appeal to pass such other sentence as ought to have been passed."

56 In McGarry (2005) Wheeler JA said, at 94 [107], it would appear to follow from the reasoning in McGarry (2001), which I have just set out, that, having reached the conclusion that the order for indefinite imprisonment imposed by the sentencing Judge in McGarry (2005) should not have been made, the entire sentence should be quashed. Orders were made in McGarry (2005) quashing the whole of the sentence imposed upon the appellant and remitting the matter to the sentencing Judge for the purpose of sentencing the appellant afresh. Also see Strong v The Queen (2005) 79 ALJR 1171 per Gleeson CJ at 1173 - 1174 [11], McHugh J at 1176 [25], 1177 [29], and Kirby J at 1184 - 1185 [66] - [72]; Penny v The State of Western Australia [2006] WASCA 173 at [52] - [66].

57 In my opinion, the errors of law made by the learned sentencing Judge, arising from his Honour's failure to make findings of fact in relation to the Reporting Act and anti-androgen therapy, and to take those findings into account in exercising the discretionary power under s 98(1) of the Sentencing Act, require that the order for indefinite imprisonment be set aside. An order for indefinite imprisonment is exceptional. Indefinite imprisonment should not be ordered unless the Court has taken into account all relevant considerations and made all relevant findings of fact in relation to:

(a) the paragraphs in s 98(2) relied upon by the Court; and

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(b) the ultimate conclusion that when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society or a part of it.

58 The learned sentencing Judge's decision imposing the fixed terms of imprisonment, and his decision to make the order for indefinite imprisonment, formed part of a single sentencing decision. It is the sentencing decision, and not its individual components, to which the principle enunciated in McGarry (2001) applies. The setting aside of his Honour's order that the appellant be imprisoned indefinitely entitles and obliges this Court also to set aside the balance of his sentencing decision, that is, the fixed terms of imprisonment. See McGarry(2005) at 94 [107]; Strong at 1173 - 1174 [11], 1176 [25], 1177 [29], 1184 - 1185 [66] - [72]; Penny at [52] - [66].

59 In my opinion, it is not appropriate for this Court to re-sentence the appellant. The matter should be remitted to the learned sentencing Judge for that purpose. I am of that opinion for these reasons. First, the parties to the appeal did not seek to place before this Court any evidence in relation to the appellant or his treatment since the sentencing hearing in January and February 2005. Such evidence is desirable in the context of any reconsideration of the appropriateness of making an order for indefinite imprisonment. Secondly, the learned sentencing Judge has a material advantage over this Court in that he has seen and heard each of the expert witnesses who gave evidence at the sentencing hearing. There were differences between the opinions of the experts and some of those differences were significant in determining the outcome of the respondent's application.

60 No doubt, the Director of Public Prosecutions will consider whether to persist with the application for indefinite imprisonment (with or without seeking to adduce further evidence) in view of the enactment of the Dangerous Sexual Offenders Act.

Summary

61 I would allow the appeal, set aside the sentences imposed by the learned sentencing Judge, including the order for indefinite imprisonment, remit the matter to his Honour for the purpose of sentencing the appellant afresh, and, in the interim, remand the appellant in custody.