Newland v The Queen
[2018] WASCA 124
•27 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NEWLAND -v- THE QUEEN [2018] WASCA 124
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 20 FEBRUARY 2018 & 10 APRIL 2018
DELIVERED : 11 MAY 2018
PUBLISHED : 27 JULY 2018
FILE NO/S: CACR 203 of 2017
BETWEEN: ROBERT BRUCE NEWLAND
Appellant
AND
THE QUEEN
Respondent
FILE NO/S: CACR 31 of 2018
BETWEEN: ROBERT BRUCE NEWLAND
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: KENNEDY J
File Number : INS 104 of 1988, INS 110 of 1988
Catchwords:
Criminal law - Appeal against conviction - Extension of time to appeal - Pleas of guilty - Whether the appellant could not in law, on the admitted facts, have been guilty of two of the offences with which he was charged - Whether this court is empowered, in the circumstances, to enter judgments of conviction for alternative offences
Criminal law - Appeal against an order made for the appellant's indefinite detention - Extension of time to appeal - Whether the sentencing judge erred in law in ordering that, at the expiration of a finite term of imprisonment, the appellant be detained during the Governor's pleasure pursuant to s 662(a) (repealed) of the Criminal Code (WA)
Legislation:
Criminal Appeals Act 2004 (WA), s 30(5)
Criminal Code (WA), s 324E (repealed), s 324F (repealed), s 662(a) (repealed)
Result:
CACR 203 of 2017
Application for an extension of time to appeal granted
Leave to appeal granted
Appeal allowed
Sentencing decision of the sentencing judge set aside
Appellant resentenced
CACR 31 of 2018
Application for an extension of time to appeal granted
Leave to appeal granted
Appeal allowed
Judgments of conviction on the count in indictment INS 104 of 1988 and on count 3 in indictment INS 110 of 1988 set aside
Judgments of acquittal entered on those counts
Category: B
Representation:
CACR 203 of 2017
Counsel:
| Appellant | : | Ms K J Farley SC on 20 February 2018; Ms K J Farley SC & Mr B Meshgin on 10 April 2018 |
| Respondent | : | Ms A L Forrester SC & Ms G N Beggs on 20 February 2018; Mr J A Scholz & Ms G N Beggs on 10 April 2018 |
Solicitors:
| Appellant | : | Legal Aid WA |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 31 of 2018
Counsel:
| Appellant | : | Ms K J Farley SC & Mr B Meshgin |
| Respondent | : | Mr J A Scholz & Ms G N Beggs |
Solicitors:
| Appellant | : | Legal Aid WA |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611
DAL v The State of Western Australia [2006] WASCA 246; (2006) 33 WAR 143
Director of Public Prosecutions Reference under s 693A of the Criminal Code (No 1 of 1992) v 'M'; Director of Public Prosecutions Reference under s 693A of the Criminal Code (No 1 of 1993) v 'J' (1993) 9 WAR 281
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
Tunaj v The Queen [1984] WAR 48
Yates v The Queen [2013] HCA 8; (2013) 247 CLR 328
REASONS OF THE COURT:
On 22 February 2018, in appeal CACR 31 of 2018 (the Conviction Appeal), the appellant filed an application for an extension of time within which to appeal and for leave to appeal against conviction.
On 27 September 2017, in appeal CACR 203 of 2017 (the Sentence Appeal), the appellant filed an application for an extension of time within which to appeal and for leave to appeal against an order made under s 662(a) (repealed) of the Criminal Code (WA) (the Code) for the appellant's indefinite detention.
On 11 July 1988, the appellant was convicted, on his pleas of guilty in the Supreme Court before Kennedy J, of four counts. Indictment INS 104 of 1988 (INS 104) contained one of the counts. Indictment INS 110 of 1988 (INS 110) contained the other three counts.
The count in INS 104 alleged that on 19 February 1988, at Balga, the appellant sexually penetrated a boy, D, without his consent and that D was then under the age of 16 years, contrary to s 324E of the Code.
Count 1 in INS 110 alleged that on 16 March 1988, at Highgate, the appellant fraudulently took away J, a boy under the age of 14 years, with intent to deprive the parent of the possession of J, contrary to s 343 of the Code. Count 2 in INS 110 alleged that on the same date as in count 1, at Mandurah, the appellant unlawfully and indecently assaulted J, and that J was then under the age of 16 years, contrary to s 324C of the Code. Count 3 in INS 110 alleged that on the same date as in count 1, at Mandurah, the appellant sexually penetrated J without his consent, and that J was then under the age of 16 years, contrary to s 324E of the Code.
On 29 August 1988, Kennedy J sentenced the appellant to 3 years' immediate imprisonment on each count and ordered that the sentences be served concurrently. His Honour also made an order under s 662(a) of the Code that at the expiration of the total effective term of 3 years' imprisonment the appellant be detained during the Governor's pleasure.
On 11 May 2018, this court made the following orders in the Conviction Appeal:
(1)The application for an extension of time within which to appeal is granted.
(2)Leave to appeal is granted.
(3)The appeal is allowed.
(4)The judgment of conviction for aggravated sexual assault (sexual penetration), contrary to s 324E of the Code, on count 3 in INS 110 is set aside, and instead a judgment of acquittal is entered on that count.
(5)The judgment of conviction for aggravated sexual assault (sexual penetration), contrary to s 324E of the Code, on the count in INS 104 is set aside, and instead a judgment of acquittal is entered on that count.
Also, on 11 May 2018, this court made the following orders in the Sentence Appeal:
(1)The application for an extension of time within which to appeal is granted.
(2)The appeal is allowed.
(3)The sentencing decision of Kennedy J made on 29 August 1988, including the order made by his Honour under s 662(a) of the Code, is set aside.
(4)The appellant is resentenced to terms of immediate imprisonment as follows:
(a)on count 1 in INS 110, 6 years; and
(b)on count 2 in INS 110, 3 years.
(5)The new terms of immediate imprisonment are to be served concurrently with each other.
(6)The new terms of immediate imprisonment are to be taken to have taken effect on 29 August 1988.
(7)The appellant is eligible for parole.
When we pronounced the orders on 11 May 2018 we said that our reasons for making those orders would be published later. These are our reasons.
The Conviction Appeal
The sole ground of appeal in the Conviction Appeal alleges that a miscarriage of justice has occurred in that the appellant could not in law, on the admitted facts, have been guilty of the offences of aggravated sexual penetration, contrary to s 324E of the Code, with which he was charged.
Counsel for the respondent conceded (correctly, in our opinion) that the ground of appeal had been made out and that the appeal should be allowed.
As to the count in INS 104, the facts alleged by the prosecutor before the sentencing judge were as follows:
[A]t about midday on Friday 19 February 1988, [the appellant] was at the Balga Swimming Pool and Aquatic Centre … He approached the complainant, who is a 6‑year‑old boy, in the toilet. [The appellant] pulled down the complainant's bathers and then performed oral sex on the boy. It lasted for about 30 seconds. While [the appellant] performed oral sex on the boy, [the appellant] had an erection and was masturbating himself … (AB 51).
As to count 3 in INS 110, the facts alleged by the prosecutor before his Honour were as follows:
[The appellant] and the boy got onto a bed, where [the appellant] sucked the boy's penis and he then got the boy to lick [the appellant's] penis … It [is] the incident of oral sex that is the subject of the third count on the Indictment (AB 51).
At the hearing before the sentencing judge, defence counsel did not challenge the facts alleged by the prosecutor.
His Honour found, in sentencing the appellant, that the facts in relation to the sexual penetrations were these:
(a)as to the count in INS 104, the appellant 'pulled down [the complainant's] bathers and then performed oral sex on him for a period of half a minute or so' and that while the appellant was doing this '[he] had an erection and [was] masturbating' (ts 14); and
(b)as to count 3 in INS 110, the appellant 'took the boy onto a bed where [the appellant] sucked [the boy's] penis and then had [the boy] lick [the appellant's] penis' (ts 14).
During 1988, the term 'circumstances of aggravation' was defined in s 324H of the Code. This provision was inserted into the Code by the Acts Amendment (Sexual Assaults) Act 1985 (WA) pt II (No 74 of 1985). The definition included a circumstance where the person assaulted or sexually penetrated was under the age of 16 years or above the age of 60 years (s 324H(e)). At the time of the appellant's offending, the complainant the subject of the count in INS 104 was aged 6 years and the complainant the subject of count 3 in INS 110 was aged 5 years.
By s 8 of the Acts Amendment (Sexual Assaults) Act 1985 (WA) pt II (No 74 of 1985), s 324E was inserted into the Code. Section 324E provided that '[a]ny person who sexually penetrates another person without the consent of that person and in circumstances of aggravation is guilty of a crime and is liable to imprisonment for 20 years'. Section 324E was repealed by the Acts Amendment (Sexual Offences) Act 1992 (WA) pt II (No 14 of 1992). Section 6 of that Act inserted a new s 326 which created an offence of aggravated sexual penetration without consent in substantially the same terms as s 324E.
During 1988, the term 'sexual penetration' was defined in s 324F of the Code. This provision was inserted into the Code by the Acts Amendment (Sexual Assaults) Act 1985 (WA) pt II (No 74 of 1985), which came into operation on 1 April 1986. Section 324F read:
For the purposes of this Code, 'to sexually penetrate' means ‑
(a)to penetrate the vagina of any person or the anus of any person with ‑
(i)any part of the body of another person; or
(ii)an object manipulated by another person,
except where the penetration is carried out for proper medical purposes;
(b)to manipulate any part of the body of another person so as to cause penetration of the vagina or anus of the offender by part of the other person's body;
(c)to introduce any part of the penis of a person into the mouth of another person;
(d)to engage in cunnilingus; or
(e)to continue sexual penetration as defined in paragraph (a), (b), (c) or (d).
Section 324F was repealed by the Acts Amendment (Sexual Offences) Act 1992 (WA) pt II (No 14 of 1992), which came into operation on 1 August 1992. Section 6 of that Act inserted a new s 319 which included a different definition of 'to sexually penetrate'. The relevant difference was that par (d) of the new definition read 'to engage in cunnilingus or fellatio'.
At the time of the offending, s 183 of the Code provided:
Any person who unlawfully and indecently deals with a child under the age of fourteen years or who incites such a child to so deal with him or another is guilty of a crime, and is liable to imprisonment with hard labour for seven years, with or without whipping.
The term 'deal with' includes doing any act which, if done without consent, would constitute an assault as hereinafter defined.
By s 8 of the Acts Amendment (Sexual Assaults) Act 1985 (WA) pt II (No 74 of 1985), s 324C was inserted into the Code. Section 324C provided that '[a]ny person who unlawfully and indecently assaults another person in circumstances of aggravation is guilty of a misdemeanour and is liable to imprisonment for 6 years'. Section 324C was repealed by the Acts Amendment (Sexual Offences) Act 1992 (WA) pt II (No 14 of 1992). Section 6 of that Act inserted a new s 324 which provided that '[a] person who unlawfully and indecently assaults another person in circumstances of aggravation is guilty of a crime and is liable to imprisonment for 7 years'.
In Director of Public Prosecutions Reference under s 693A of the Criminal Code (No 1 of 1992) v 'M'; Director of Public Prosecutions Reference under s 693A of the Criminal Code (No 1 of 1993) v 'J',[1] the Court of Criminal Appeal considered whether the definition of 'to sexually penetrate', in s 324F of the Code, included the introduction by A (the accused) into his or her own mouth of the penis of B (the complainant), without the consent of B, for the purposes of, relevantly, s 324E of the Code (as enacted prior to the 1992 amendments).
[1] Director of Public Prosecutions Reference under s 693A of the Criminal Code (No 1 of 1992) v 'M'; Director of Public Prosecutions Reference under s 693A of the Criminal Code (No 1 of 1993) v 'J' (1993) 9 WAR 281.
A majority of the Court of Criminal Appeal (Malcolm CJ & Walsh J; Rowland J dissenting) held that to accept the proposition that where an accused places the penis of a complainant in his or her own mouth, without the consent of the complainant, constitutes an offence under s 324F(c) read with, relevantly, s 324E of the Code would create an ambiguity in the legislation. The statutory text should be construed strictly, in favour of the accused, so as not to extend the category of criminal offences with which he or she is charged. Accordingly, the majority held that, before the enactment of the 1992 amendments, an act of fellatio performed by an accused on a complainant, without the consent of the complainant, was not within the definition of 'to sexually penetrate' in s 324F(c), and was not an offence under, relevantly, s 324E.
It is inappropriate, in view of the 1992 amendments, to examine the correctness of the reasoning of the majority of the Court of Criminal Appeal. Also, counsel for the respondent did not submit that the reasoning was wrong and should not be followed.
Accordingly, in 1988, when the appellant engaged in the sexual conduct alleged by the prosecutor, the appellant's acts of fellatio in relation to the complainants were not acts of 'sexual penetration' as defined in s 324F(c) of the Code or within any other provision of the definition. It follows that, on the admitted facts, the appellant could not have been guilty of the offences of aggravated sexual penetration, contrary to s 324E, with which he was charged.
The ground of appeal has been made out. It is in the interests of justice to grant an extension of time to appeal. Leave to appeal should be granted. The appeal must be allowed and the judgments of conviction on the count in INS 104 and count 3 in INS 110 must be set aside.
Section 30(5) of the Criminal Appeals Act 2004 (WA) provides, relevantly:
If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must ‑
(a)order a trial or a new trial; or
(b)enter a judgment of acquittal of offence A; or
(c)if ‑
(i)the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; or
…
Counsel for the respondent conceded (correctly, in our opinion) that this court's power under s 30(5) to set aside a conviction for 'offence A' and substitute a conviction for 'offence B' is enlivened only where the conviction for 'offence A' was entered following a trial or a trial by judge alone. The power is not engaged where the conviction for 'offence A' was entered following a plea of guilty. Those conclusions are required by the ordinary and natural meaning of the text of s 30(5).
In the circumstances, this court should enter judgments of acquittal in respect of the count in INS 104 and count 3 in INS 110. It is not open to this court to substitute convictions for indecent dealing, contrary to s 183 (repealed) of the Code.
It is, of course, a matter for the discretion of the Director of Public Prosecutions (WA) whether new charges are brought against the appellant alleging offences of indecent dealing, contrary to s 183 (repealed).
The Sentence Appeal
The sole ground of appeal in the Sentence Appeal alleges that the sentencing judge erred in law in ordering that, at the expiration of 3 years' imprisonment, the appellant be detained during the Governor's pleasure pursuant to s 662(a) of the Code.
The particulars of the ground allege that:
(a)the evidence before his Honour was not capable of forming a basis upon which his Honour could conclude that the nature of the offences or the appellant's character and mental condition made it so likely that he would commit crimes of violence, including sexual offences, that he was a constant danger to society; and
(b)the order for detention at the Governor's pleasure was made for a purpose not supported by the legislation.
Counsel for the respondent conceded (correctly, in our opinion) that the sentencing judge's order that the appellant be detained during the Governor's pleasure pursuant to s 662(a) should be set aside.
Since the expiration of the term of 3 years' imprisonment imposed by the sentencing judge, the appellant has remained in custody, pursuant to the order made under s 662(a), apart from some brief periods in the community. He has been in custody continuously since 17 February 1998.
The appellant was born on 17 September 1961. He suffers from cerebral palsy and Scheuermann's disease. At birth he suffered brain damage which caused a learning disability. The appellant was referred to the Spastic Welfare Centre. After he ceased his schooling, the appellant worked in sheltered workshops. He was an invalid pensioner.
On 24 January 1985, the appellant was convicted of four counts of indecently dealing with two children under the age of 14 years. The victims were a boy aged 3 and a girl aged 4. The appellant approached the children, who were unknown to him, at a playground. He offered to buy them ice-cream. The appellant persuaded the children to enter his vehicle. He then drove about 40 km from Perth.
After stopping his vehicle, the appellant indecently dealt with each of the children by touching their genitals. He then drove the children towards Perth. The vehicle was involved in an accident. Other people gave the appellant and the children a lift to Midland. The appellant and the children then travelled by train and taxi to the appellant's home. At his home the appellant showered the children and then indecently dealt with them in his bed. Shortly afterwards, the police apprehended the appellant at his home. The children were naked in his bed. The appellant was sentenced to 4 years' immediate imprisonment with a minimum non‑parole period of 12 months.
On 13 January 1986, the appellant was released on parole. During the parole period the appellant committed the offences that were the subject of the order made under s 662(a).
The material before the sentencing judge, when his Honour sentenced the appellant, included:
(a)the depositions from the prosecution's witnesses;
(b)a probation service pre‑sentence report dated 16 August 1988 from Richard Lane, a Community Corrections Officer, and endorsed by RL Johnstone, on behalf of the Executive Director of the Department of Corrective Services;
(c)a report dated 16 August 1988 from Dr John Booth, a psychiatrist; and
(d)a number of unnamed and unknown reports referred to, but not specifically identified, by his Honour.
The probation service pre‑sentence report noted that, although the appellant usually kept his appointments and notified the officer of his whereabouts while on parole, doubts remained as to the appellant's sincerity and motivation. Mr Lane said that the appellant 'often resorted to well‑honed techniques of resistance and manipulation in obstructing any significant change in his behaviour'. Mr Lane made the following comments:
[The appellant] impresses as an awkward yet rather complex character whose verbal skills exceed his level of maturity and intellectual ability. He has had a number of opportunities and has been actively encouraged, through parole supervision, to address his offending behaviour through differing forms of psychological treatment and a residential placement. Regretfully, his offending against children has continued and there remains doubts in the writer's and other supervising officers' opinions as to [the appellant's] sincerity. He remains a risk to society and the prognosis for any significant change in his sexual behaviour is considered to be extremely poor. Were he to be released back into the community, he will need close surveillance in addition to any therapy that is agreed to. Meanwhile, he is aware of the treatment facilities that exist within the prison system.
The sentencing judge observed, in debate with defence counsel, that Dr Booth's report did not seem to be 'a very full story' (ts 11).
In those circumstances, his Honour appears, appropriately, to have accorded more weight to the probation service pre‑sentence report than the psychiatric report.
The sentencing judge made the following remarks in the course of deciding to make the order under s 662(a):
I do see a need to protect children from you and this need must prevail over personal factors. I simply cannot ignore the risk which you currently present.
I intend, having regard to your antecedents, character and mental condition and to the risk which you pose, to direct that at the expiration of 3 years' imprisonment you will be detained during the Governor's pleasure in a prison. Three years is the sentence I intend to impose on each count, those sentences to be served concurrently.
It should be obvious that in the absence of the indeterminate sentence the sentences imposed for the offences committed by you would have been very much greater. There can of course be no question as to parole in those circumstances. I have elected to proceed in the way that I have really in order that the position may be evaluated at a proper time after you have had the opportunity to undergo psychological treatment. Your release will depend really entirely upon your attention to, your attendance upon and the success of treatment of your condition. Your genuine co-operation in any programme will assist you in your release at the earliest possible time (ts 16).
In Tunaj v The Queen,[2] Burt CJ (Pidgeon and Rowland JJ agreeing) made these observations in relation to the exercise of the power under s 662(a):
In my opinion, the enactment of the Probation and Parole Act now requires one to say that an order should be made under s 662 only in very exceptional circumstances and those circumstances must indicate and firmly indicate that the convicted person has shown himself to constitute a danger to the public. And the section of recent years has always been understood in that sense and applied only in such cases.
[2] Tunaj v The Queen [1984] WAR 48, 51.
In Chester v The Queen,[3] Mason CJ, Brennan, Deane, Toohey and Gaudron JJ said in relation to s 662(a):
The exercise of the power should be reserved for those very exceptional cases which do not attract the operation of s 661 of the Code or for which s 29(1) of the Mental Health Act is unlikely to be appropriate and in which the sentencing judge is satisfied by acceptable evidence that the convicted person is, by reason of his antecedents, character, age, health or mental condition, the nature of the offence or any special circumstances, so likely to commit further crimes of violence (including sexual offences) that he constitutes a constant danger to the community. The stark and extraordinary nature of punishment by way of indeterminate detention, the term of which is terminable by executive, not by judicial, decision, requires that the sentencing judge be clearly satisfied by cogent evidence that the convicted person is a constant danger to the community in the sense already explained.
[3] Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611, 618 ‑ 619.
Their Honours referred to the observations of Burt CJ in Tunaj, which we have set out at [44] above, and noted that his Honour did not then restrict the exercise of the power under s 662(a) to cases in which 'there is a danger of physical harm to the community arising from the commission of crimes of violence', though Burt CJ's comments were 'entirely consistent with such a restriction' (619).
In Yates v The Queen,[4] an intellectually disabled man was convicted in the Supreme Court of Western Australia of two offences involving the aggravated sexual assault of a child. He was sentenced to a term of imprisonment and an order was made under s 662(a) of the Code. The order under s 662(a) was upheld by a majority of the Court of Criminal Appeal. The High Court applied Chester and allowed the offender's appeal against the making of the order. French CJ, Hayne, Crennan and Bell JJ said that the evidence before the sentencing judge had not supported the making of the order under s 662(a) as it was not capable of demonstrating that the offender was so likely to commit further crimes of violence, including sexual violence, that he constituted a constant danger to the community.
[4] Yates v The Queen [2013] HCA 8; (2013) 247 CLR 328.
In the present case, we are satisfied that the evidence before the sentencing judge did not support the making of an order under s 662(a) of the Code in that it was not capable of demonstrating that the appellant was so likely to commit crimes of violence, including sexual violence, that he constituted a constant danger to the community.
Further, his Honour's findings of fact and reasoning were inconsistent with the test mandated by the High Court in Chester and Yates. In particular, his Honour made the order so that 'the position [in relation to the appellant's release from custody] may be evaluated at a proper time after [the appellant has had] the opportunity to undergo psychological treatment' (ts 16). In our opinion, although his Honour recognised that the appellant needed treatment, his Honour impermissibly made the order:
(a)to defer the question of release;
(b)to provide an incentive for the appellant to undergo a treatment programme; and
(c)to avoid imposing on the appellant a 'very much greater' term of imprisonment.
The indefinite detention order should not have been made.
The ground of appeal has been made out. It is in the interests of justice to grant an extension of time to appeal. Leave to appeal should be granted. The appeal must be allowed and the sentencing decision of his Honour, including the order made under s 662(a), must be set aside. See McGarry v The Queen;[5] DAL v The State of Western Australia.[6]
[5] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[6] DAL v The State of Western Australia [2006] WASCA 246; (2006) 33 WAR 143 [58] - [59] (Buss JA; Roberts-Smith & McLure JJA agreeing).
This court has the material necessary to resentence the appellant on count 1 and count 2 in INS 110.
The appellant pleaded guilty to those counts at the first reasonable opportunity. We would allow a discount of 25% on the 'head sentence' (as defined in s 9AA(1) of the Sentencing Act 1995 (WA)) for each offence.
We note that when the appellant was released into the community under supervision between December 1995 and September 1996 he breached the conditions of his release and was returned to custody. We also note that when the appellant was placed on release under supervision in 1997 he committed an offence against a 7‑year‑old boy in the bathroom of a fast food restaurant by fondling the boy's penis. The appellant was sentenced to 2 years 6 months' imprisonment for that offence.
After taking into account the maximum penalty for each offence; the facts and circumstances of each offence; the relevant general sentencing pattern; the place which the appellant's criminal conduct occupies on the scale of seriousness of offending of this kind; the appellant's personal circumstances; and all other sentencing factors (including mitigating factors), we would resentence the appellant to terms of immediate imprisonment as follows:
(a)on count 1 in INS 110, 6 years; and
(b)on count 2 in INS 110, 3 years.
The new terms of immediate imprisonment should be served concurrently with each other. The new terms are to be taken to have taken effect on 29 August 1988. A parole eligibility order should be made.
The Dangerous Sexual Offenders Act 2006 (WA)
Finally, we note, for completeness, that this court's orders on appeal will not result in the appellant being released from custody. The Director of Public Prosecutions (WA) has made an application in relation to the appellant under the Dangerous Sexual Offenders Act 2006 (WA) and an order has been made under that Act for the appellant to be detained in custody pending the final determination of that application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS27 JULY 2018
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