R v Jensen and Attorney-General of Queensland

[1996] QCA 182

IN THE COURT OF APPEAL [1996] QCA 182

SUPREME COURT OF QUEENSLAND

Brisbane	C.A. No. 307 of 1995
[R v Jensen and A-G]

T H E Q U E E N
v
MICHAEL STEPHEN JENSEN

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

Macrossan C.J.
Lee J.

Mackenzie J.

Judgment delivered 11 June 1996
Judgment of the Court

APPEAL ALLOWED. SENTENCE ON COUNT OF RAPE SET ASIDE AND SENTENCE OF 11 YEARS IMPOSED TO COMMENCE ON 7/7/1995, TO BE SERVED CONCURRENTLY WITH OTHER SENTENCES IMPOSED ON 13 COUNTS OF INDECENT DEALING ON THAT DATE. FIVE YEARS OF SENTENCE FOR RAPE TO BE SERVED CONCURRENTLY WITH SENTENCES FOR WESTERN AUSTRALIAN OFFENCES. RECOMMEND THAT RESPONDENT BE CONSIDERED FOR PAROLE AFTER 29/8/1998.

CATCHWORDS:  CRIMINAL LAW - SENTENCE - SEXUAL OFFENCES - Whether sentence manifestly inadequate - Respondent serving period of imprisonment imposed in Western Australia when later sentenced in Queensland for offences occurring before those in Western Australia - Whether time spent in custody prior to sentencing in Queensland was in relation to Queensland or Western Australian offences.

s .26 Prisoners (Interstate Transfer) Act 1982 considered.

CRIMINAL LAW - SENTENCE - TOTALITY PRINCIPLE - Two separate series of incidents in Queensland and Western Australia - Whether sentencing judge in Queensland should impose overall total sentence - Whether can be adequately expressed by recommendation for parole.

No prior recommendation by a Court given - Whether s.157(2) of Penalties and Sentences Act 1992 of general application.
Mill v R (1988) 166 C.L.R. 59 considered.

ss.154, 157 of the Penalties and Sentences Act 1992 considered.

Counsel:	A. Glynn for the Respondent M. Byrne QC for the Appellant
Solicitors:	Legal Aid Office for the Respondent DPP for the Appellant

Hearing Date: 6 October 1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 11/06/1996

This is an appeal by the Attorney-General against sentences imposed on the respondent in the District Court at Brisbane on 7 July 1995. The respondent was convicted on 8 May 1995 following his pleas of guilty to one count of rape and thirteen counts of indecent dealing with circumstances of aggravation. A pre-sentence report was then ordered. On 7 July 1995 he was sentenced to five years imprisonment for the rape, eighteen months imprisonment on each of six counts of indecent dealing, and nine months imprisonment on each of seven counts of indecent dealing, all sentences to be served concurrently. A recommendation was made that the respondent be eligible for consideration for parole after serving two years imprisonment.

These offences are referred to as the Queensland offences. By virtue of s. 154 of the Penalties and Sentences Act 1992 ("the Act"), these sentences commenced on 7 July 1995 and expire

on 7 July 2000. The maximum sentence for rape is life imprisonment. At the time of the other offences, s. 216 of the Criminal Code provided for a maximum penalty of seven years imprisonment. By virtue of subsequent amendments, s. 210 of the Criminal Code now provides for a maximum penalty of ten years imprisonment.

The grounds of appeal are that the sentences were manifestly inadequate in that the sentencing judge failed to adequately reflect the gravity of the offences, that he failed to sufficiently take into account that there was no co-operation with the police, that the respondent was considered to be a higher risk of re-offending and a higher risk to the community, that no remorse was indicated, and the tender age of the complainant in the case of rape. Complaint is also made that the sentencing judge erred in giving full weight to the totality principle which involved a consideration of the effect of imprisonment imposed in Western Australia in respect of sexual offences committed in that State some 4½ years after the Queensland offences and in respect of which the respondent had, on 29 August 1990, been sentenced to nine years imprisonment plus an additional one year cumulative sentence for break and entering offences. These are referred to as the Western Australian offences.

The Queensland offences occurred over a three month period between 28 February 1985 and 1 June 1985 at Brisbane. The victim of the rape and ten counts of indecent dealing was a girl aged seven years. The victim of the other three counts of indecent dealing was a girl aged ten years. They were sisters.

The respondent was born on 26 November 1947 and was 37 years of age at the date of the offences. He was 47 when sentenced. He was a married man with a family of his own. He ingratiated himself with the girls' mother who was at that time separated from her husband, and was allowed to have contact with the children. He took the girls to Toyland and on the way home stopped the car and put his hands between the legs of the ten year old girl. He was allowed access to their bedroom and took advantage of the situation by indecently dealing with both girls on a number of occasions.

On one occasion he was allowed to take the girls and the young brother to his house while their mother went to work. On this occasion, he sexually abused the seven year old girl in various ways but also raped her and recorded the rape and conduct comprising at least six counts of indecent dealing on a video and some eighteen photographs. This must have occurred over a fairly extended period of time. The video itself was of twenty minutes duration which is not a necessary indication of how long the conduct continued, depending upon the number of gaps in the activity when the camera was adjusted and moved etc.

In addition to this, there were the photographs referred to.

Senior counsel for the appellant handed the Court a summary of the contents of the video. Apart from the rape itself which took place during this entire activity, the conduct involved included removing the child's clothing, kissing her on the vagina and anus, licking and kissing her in the same areas, masturbation of him by the child and by himself, encouraging the child to rub herself in the vaginal area, inserting his finger into her vagina, inserting his penis into her mouth causing her to suck his penis for various periods whilst he licked her vagina, causing the child to straddle him whilst he lay on his back and placing her on his erect penis and moving her thereon without penetration, and masturbation and ejaculation on the child's stomach. All of this activity was recorded on the video and photographs with close-up shots of his ejaculation and of her vagina.

Following this conduct, the respondent moved to Western Australia and took up employment as a psychiatric nurse. In October 1989, about 4½ months after his move to Western Australia, he raped and sexually assaulted a psychiatric patient under his care in a psychiatric hospital. On 29 August 1990 after a three day trial, he was convicted in the Supreme Court of Western Australia on counts of what we were informed was the equivalent of rape and sexual assault. The victim was aged 32 years and was required to give evidence at the trial. She had a long history of schizophrenia and had developed a disassociated state. She was very vulnerable to this type of conduct as the sentencing judge, Wallace J, said. His Honour said that the respondent "subjected the patient to conduct which can only be described as undignified, degrading and positively unlawful". The respondent was sentenced to nine years imprisonment which was not disturbed by the Court of Criminal Appeal of Western Australia. The sentencing judge did not take into account the fact that the respondent was facing further charges in Queensland in imposing that sentence.

During the course of investigations into the Western Australian offences, a search of his premises pursuant to a warrant revealed a video tape of his rape and sexual abuse of the seven year old girl in Queensland in 1985. As a result, he and accomplices committed four break and entering offences of various police stations in Western Australia in an attempt to obtain or destroy the video tape. As a result of those offences, he was sentenced on 6 March 1991 in the District Court in Perth to one year's imprisonment to be served cumulatively on the nine year sentence. The combined Western Australian sentences will not expire until 29 August 2000, which is nearly two months after the date of expiry of the later sentences for the Queensland offences.

As a result of the location of the video, police from Queensland sought to interview the respondent on 31 July 1990, i.e. before he was sentenced in Western Australia on 29 August 1990. He declined to answer questions but this indicated to him that there was a likelihood that charges might be brought against him in Queensland. It appears from correspondence between his solicitor and prosecuting authorities that he was aware of the possibility of Queensland charges from about that time. The material shows that attempts were made by him or on his behalf to ascertain the existence of the Queensland charges.

There is some doubt on the material as to when the respondent took whatever steps he could to be transferred to Queensland to have the Queensland offences dealt with. He was eligible for parole in Western Australia in November 1994. It was accepted at the hearing that this date was fixed by prison authorities in Western Australian pursuant to Western Australian legislation and not by an order of the Court or by a recommendation by the Court. In October 1994 he was transferred to Queensland voluntarily under the Prisoners (Interstate Transfer) Act 1982. This indicated that he was desirous of having the Queensland matters cleared up as soon as possible. It appears from s. 26 of that Act that the sentences of imprisonment imposed in Western Australian were thereby deemed to have been sentences imposed by a corresponding Court in Queensland and given effect to accordingly.

A warrant was issued for his arrest on the Queensland charges. There is some doubt as to when this issued but apparently it was no later than January 1993. The respondent has been continuously in custody since his transfer to Queensland in October 1994. Debate occurred before the learned sentencing judge as to the effect if any of the period he served in custody since about November 1994 up until the time he was sentenced on 7 July 1995, given that he was eligible for parole with respect to the Western Australian sentences in November 1994 and might have received parole had it not been for the outstanding Queensland charges. Although the sentencing judge did express some concern about whether from a practical point of view, and as a matter of fairness, the time spent in custody between those dates should be taken into account in a general way quite apart from the provisions of s. 161 of the Act, it appears that both counsel agreed that his continued imprisonment in Queensland was with respect to the Western Australian sentences. In the result, His Honour concluded that there was no time spent in pre-sentence custody with respect to the Queensland offences and no allowance was made for that period in the sentences imposed.

There was a hand-up committal on the Queensland charges. No witnesses were cross-examined. A guilty plea on all counts except the rape was indicated on 30 March 1995. The Crown was told that the complainants would not be required to give evidence, the only outstanding issue being whether "penetration" could be established with respect to the rape charge. A plea of guilty to the rape was indicated on the Saturday before the trial was due to commence on Monday, 8 May 1995, on which date he entered pleas of guilty to all of the various offences and was convicted thereon. It was nevertheless submitted on his behalf that the plea of guilty, even though made very close to the trial, should in fact be regarded as an early plea by virtue of the respondent's attempts to be transferred to Queensland to have all the matters dealt with.

The pre-sentence report is very much against the respondent. Mr Ryan, the community correctional officer who prepared it, though present in Court, was not cross-examined. In his opinion, the respondent attempted to minimise and justify his deviant sexual acts, he failed to show any genuine remorse or insight into his offending behaviour, and he contended that he had learned much from attendance at the Sex Offenders' Treatment Program in Western Australia and the Graduate Sex Offenders' Program at the Moreton Correctional Centre. However, he then said that the seven year old victim had consented and enjoyed what he had done to her and that the incidents were based on love not on sex. He said that the moments captured on tape were very "emotional" and he wanted to remember them.

Of some significance was a letter he wrote to Mr Ryan on 17 May 1995 after he had been convicted and was awaiting sentence. In that letter he stated that "regarding the major charge against me - at no time had I ever contemplated actually penetrating my victim and facilitating full sexual intercourse - either before, during or at any time. My victim actually asked if I would 'put it in her' and I refused point blank! For me it was and is an impossibility". This statement may appear to be in conflict with the Government Medical Officer's assessment that penetration of the labia had taken place, although it was accepted by the Crown at the trial that whilst penetration was sufficient to justify the count of rape, it was not complete.

In the same letter the respondent said that he had spoken to a psychologist and counsellor at the Arthur Gorrie Centre regarding "my life, offence and other matters including my work at the SOTP in WA". He said that both of them had stated to him that there was no more that prison could offer him in regard to rehabilitation due to the large amount he had done and that any further punishment would seriously detract from the rehabilitation he had already completed. He said that another psychologist also confirmed that to him, and that all three had understood the trauma he had been through with his first wife and said that he was suffering from the "battered husband syndrome". The respondent also advised Mr Ryan that having completed the Sex Offenders' Treatment Program in Western Australia, he was considered a low risk of re-offending.

Had these deliberate assertions been established, a case for mitigation of penalty would probably have existed by reason of the lapse of time since the dates the offences were committed and the date of the sentences, during which the respondent had become rehabilitated or had made good progress in that regard; R

v L (C.A. No. 176 of 1995 - 6/10/95); R v Todd [1982] 2 N.S.W.L.R. 517 at 519, 520 in a passage cited with approval by the High Court in Mill v R (1988) 166 C.L.R. 59 at 64.

However, on prudently checking the respondent's assertions with the Senior Officer of the Western Australian Program, Mr Ryan was told that the respondent at the completion of the program was still regarded as a high risk offender and that the staff were not satisfied that he had made sufficient progress to be considered a reduced risk. That officer had recommended against the respondent's release, thus demonstrating the falsity of the respondent's assertion.

Mr Ryan in his report concluded that these statements concerning his alleged rehabilitation constituted a further attempt by the respondent to deceive and influence him. Mr Ryan concluded - "...cognitive distortion, minimisation, denial and portrayal of himself as the victim have been strategies used by the offender to justify and explain his behaviour. Mr Jensen's inability to experience and display genuine remorse for his crimes places this individual in the category of a higher risk to the community and therefore precludes a recommendation for community based supervision". As indicated, Mr Ryan's report and opinions were not challenged. He regarded the respondent as a very serious sex offender and noted that he was subject to a probation order in England in 1975 for indecent exposure and was also convicted of an indecent assault at that time.

A great deal of debate occurred before the learned sentencing judge as to the range of appropriate sentences for the rape, and the effect of the totality principle set out in Mill. In sentencing, His Honour placed emphasis on the fact that the respondent had debauched an innocent child under eight years of age, that he was in a position of trust, that opinions expressed in the pre-sentence report were not challenged, that there was no co-operation with the police and indeed attempts to destroy evidence, that the conduct was pre-meditated, that there was no remorse, but attempts to show himself as the victim and that he was a serious risk of re-offending. His Honour concluded that the sentences for the two groups of offences in two States, if dealt with at the one time, would not have been made concurrent because of the differences in victims, time, circumstances and the gap between the two sets of offences, but that an appropriate sentence for the rape of the seven year old girl would be eight years. He also said that had all of the offences in the two States been dealt with at the one time, a total sentence of approximately fourteen years' imprisonment would have been appropriate.

His Honour also noted the respondent's good work history, his pleas of guilty and his family circumstances. The respondent at the time was in a de facto relationship which survived his imprisonment and was continuing. His Honour also noted that there was no physical injury to the younger child who was raped and no evidence was advanced by the Crown showing that either child had suffered any consequences requiring treatment.

His Honour then referred to a passage in Mill at 66-67 which required that the sentencing judge should first ask what would have been the likely head sentence if the offences had been committed in the one State and the offender sentenced at the one time, with appropriate discounting to reflect overall criminality. As pointed out in Mill at 63, this result may be achieved either by making the sentences wholly or partly concurrent or by lowering the head sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences were being imposed. The High Court also stated that where practical, the former is to be preferred. The learned sentencing judge then referred to the following passage from Mill at 67:-

"Without statutory authority, the only course open to the second sentencing Court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of state boundaries."

His Honour considered that those words, with necessary adaptation, applied in the case before him, resulting in the sentence of five years' imprisonment with a two year recommendation.

Counsel for the applicant submitted that the level of sentence itself bespoke error of manifest inadequacy: R v. Melano; Attorney-General (C.A. No. 393 of 1994). It was further contended that the sentencing judge was in error in concluding that the appropriate sentence for the rape of a child in the existing circumstances was only eight years and further in concluding that if all matters had been dealt with at the one time a total sentence of only fourteen years would have been appropriate. It was submitted that the totality of the criminal conduct in Queensland, that is the rape and thirteen counts of indecent dealing would itself have properly attracted a sentence in the order of twelve years imprisonment and that had the Queensland offences been dealt with at the same time as the Western Australian offences, a total term of imprisonment of about 20 years was justified, meaning that had such a sentence been imposed, the overall sentences would not have expired until about the year 2010. The Crown prosecutor at the sentencing hearing had submitted that a head sentence in the region of 10- 12 years was appropriate for the rape.

It was further submitted in this Court that the sexual assaults occurred upon vulnerable victims in two States and 4½ years apart in time so that only a limited allowance should be made for the totality principle. It was said that this would be achieved by an appropriate head sentence for the Queensland offences of 12 years imprisonment, reduced to 10 years and made cumulative on the expiry of the Western Australian sentences, which appears to be permissible by reason of the effect of s. 26 of the Prisoners (Interstate Transfer) Act 1982. The overall sentences in such circumstances would then not expire until 29 August 2010. It was further contended that no recommendation for early parole should be considered by the Court because of the respondent's ongoing danger to the community. Parole should, it was submitted, be left for the appropriate authorities to review in the future. No submissions were made by either counsel as to the effect of s. 157 of the Act.

Whilst not overlooking the importance of deterrence in a case such as this, counsel for the respondent submitted that rehabilitation must also not be overlooked. He relied upon the absence of evidence of particular trauma suffered by the complainants and the pleas of guilty which as indicated, were submitted to have been timely in the circumstances in view of his attempt for some time, to be returned to Queensland to have the matters dealt with.

It was further submitted that the respondent had been continuously in custody for the Western Australian offences since 29 August 1990 in respect of which he was eligible for parole in November 1994, but that he was now eligible for parole on 7 July 1997 as a result of the sentences imposed on 7 July 1995. From this it was said that his non-parole period corresponded with the halfway eligibility point under a head sentence of about 14 years imprisonment. It was said that this was probably the result the sentencing judge intended to achieve and should not be disturbed.

The passage in Mill relied upon by the learned sentencing judge must be read in the context of the facts in that case. The prisoner was convicted and sentenced in Victoria on 1 September 1980 of two armed robberies committed in that state, one on 8 or 9 December 1979 and the other 5 January 1980. He was sentenced to 10 years' imprisonment with a non-parole period of eight years. On his release on parole in Victoria he was arrested and returned to Queensland to be tried in Queensland for robbery in company committed in Queensland on 19 January 1980. On 10 March 1988, he pleaded guilty and was sentenced to imprisonment for eight years, with a recommendation that he be considered for parole after three years. The only allowance for the totality principle was the recommendation made.

In the instant matter, the learned sentencing judge appears to have taken the view that the only way in which he could give effect to the totality principle was by imposing a substantially reduced sentence of five years, no part of which was made cumulative on the Western Australian sentences, and with a recommendation for parole which effectively meant that the respondent would be required to serve about seven years in custody overall before he could be considered for parole.

Quite apart from the question of whether the extended non- parole period met the overall justice of the case, there was no reason why the overall head sentence should not have been increased to reflect the total criminality. In this respect the learned sentencing judge erred in the exercise of his sentencing discretion. If a combined sentence of 14 years had been appropriate at the date of the sentencing in Western Australia on the basis that that Court then had sentenced the respondent for the combined offences, that sentence itself would not have expired until 29 August 2004 but when the one year cumulative was added to it in Western Australia this would have expired on 29 August 2005. As indicated, those sentences now expire on 29 August 2000 with the Queensland sentence expiring on 29 July 2000. Likewise, if an eight year sentence for the rape was appropriate as the learned sentencing judge held, and that this was the sentence imposed on 27 July 1995, that sentence would have expired on 7 July 2003.

It goes without saying that a sentence consists not only of the time spent in actual custody before parole, but also the time spent in the community on parole subject to the stringent conditions thereof until the sentence expires.

Because of the error affecting the order made below, this Court is now obliged to sentence afresh and consideration must be given to what were the appropriate sentences in this case. Various authorities were relied upon by the applicant in support of a head sentence in the order of 12 years. In R v Climas (C.A. No. 99 of 1989), a 34 year old man with no previous convictions, who had pleaded guilty to the rape of a 12 year old girl whom he had rendered intoxicated, was sentenced to 14 years' imprisonment. This was reduced to 11 years on appeal. In R v K (C.A. No. 269 of 1993), a man was sentenced to 14 years' imprisonment for the rape of his five year old daughter.

On appeal, that sentence was reduced to 11 years' imprisonment. That was the case of an isolated rape although it was conceded

on appeal that intercourse had taken place with the complainant on more than one occasion. Apparently the prisoner in that case also encouraged a neighbour of his to have sexual intercourse with his daughter. The child suffered serious psychological damage. The Court conducted a survey of the authorities for offences of this kind. Davies J.A. and Thomas J. in their joint reasons concluded that "unless there is specific evidence of psychological consequences to a particular complainant, other things being equal, we think that in general, the younger the victim the higher the sentence".

Having considered all of the circumstances surrounding the commission of the offence of rape, a sentence of 11 years' imprisonment is appropriate. Effect however should be given to some extent to the totality principle. Little allowance if any should be made for delay based upon any notion that the respondent either rehabilitated himself or made substantial progress in that regard whilst in custody in respect of the Western Australian offences. The evidence clearly points to the fact that he is not rehabilitated at all, but to the contrary: see R v L. However, some consideration should be given to the fact that the respondent knew of the possible Queensland offences for some years and had made some efforts to be transferred to Queensland to have them dealt with.

It nevertheless appears that to order that perhaps 10 years of this sentence be served cumulatively on the expiry of the Western Australian sentences, as submitted by the applicant, the result would be a combined head sentence of 20 years' imprisonment, which in our opinion is excessive. An overall head sentence in the order of 16 years for all of the offences would have been appropriate (including the one year sentence imposed in Perth for the break and enter offences), such that the combined head sentences should expire on or about 29 August 2006. This result may be achieved in the instant case by ordering that a term of 11 years' imprisonment be imposed as and from 7 July 1995. The consequence would be that five years of that sentence would be served concurrently with the Western Australian sentences and the overall head sentence would be effectively extended by about six years to expire on 7 July 2006. Another way to achieve this result would be to impose a six year sentence for the rape made cumulative on the expiry of the Western Australian sentences, but this would less appropriately signal the seriousness of the offence and the Court's view of the level of penalty called for.

The next question concerns the recommendation made for parole. The learned sentencing judge expressly stated that the two year non-parole period which he fixed was made pursuant to s. 157(3)(b) of the Act. This indicates that the learned judge was of the view that the District Court of Queensland was a Court of lesser jurisdiction to the Court that last sentenced the offender to a term of imprisonment, thus requiring him to recommend a non-parole period in relation to the fresh term of imprisonment imposed by the District Court. However, the Court that last sentenced the offender to a term of imprisonment was the District Court of Perth which, on 6 March 1991, sentenced the respondent to one year's imprisonment for break and entering offences to be served cumulatively on the nine year sentence already imposed by the Supreme Court of Western Australia on 29 August 1990. From the provisions of s. 5 of the Prisoners (Interstate Transfer) Act 1982 and an Order-in-Council made on 28 June 1984 by the Governor-in-Council, the District Court of Western Australia is a Court of like jurisdiction to the District Court of Queensland which in turn is a Court of lesser jurisdiction to the Supreme Court of Western Australia. See R v Burke (C.A. No. 34 of 1994, 12 July 1994). This means that s. 157(3)(a) is the subsection under which the learned District Court judge should have acted providing that there had already been a recommendation for parole made by the Court which last sentenced the respondent, i.e. the District Court in Perth: see R v Doyle (C.A. No. 454 of 1993, 6 April 1994) and R v Burke.

However, as indicated, there was no recommendation for parole made by any Court in Western Australia so that there is no obligation arising under s. 157(3) of the Act for the sentencing Court to make a "fresh" recommendation for parole. The ultimate result is that with respect to a sentence of 11 years' imprisonment if imposed from 7 July 1995, the respondent would not be eligible for parole until he served 50% of the period, i.e. 5½ years, in accordance with s. 166(2) of the Corrective Services Act. This would expire on 7 February 2001.

The result is that the respondent would be required to serve a minimum period of about 10½ years with respect to the combined offences before being eligible for parole. This would appear to be excessive.
Having said that, s. 157(3) of the Act refers only to two specific situations in both cases where a Court imposes a term of imprisonment on an offender who is already serving imprisonment for an "offence". As indicated, s. 157(3) has no application in this case but that provision does not purport to be exhaustive.
Section 157(2) on the other hand, appears to be perfectly general in application at least to cases not falling within subs. (3).

The applicant urged that there should be no recommendation for parole, the matter being left entirely to the parole authorities in view of the grave risk of the respondent reoffending, and the fact that he has shown no benefits from any previous programs whilst in custody. It seems to us that the justice of the case is best served if a recommendation is now made that the respondent be considered for parole after serving eight years overall in custody with respect to both Western Australian and Queensland offences. This means that he would become eligible for parole on 29 August 1998 which is about one year additional to the order imposed by the District Court judge. Effectively, such a recommendation requires the respondent to serve about one-half of the notional total sentence of 16 years in any event.

Simply because a recommendation is made, it does not follow that the respondent will automatically receive parole on that date. This should depend entirely upon a very careful assessment of his progress by the relevant authorities at material times, with due attention to the risk to the community.

In the result, the appeal is allowed. The sentence below on the count of rape is set aside including the recommendation as to parole. In lieu thereof the respondent is sentenced to 11 years' imprisonment to commence on 7 July 1995. The other sentences imposed on the 13 counts of indecent dealing on that date are to stand and will be served concurrently with it. The result is that five years of the sentences imposed for the Western Australian offences will also be served concurrently. A recommendation is made that the respondent be considered for parole after 29 August 1998.