The State of Western Australia v Djiagween
[2024] WASC 389
•22 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DJIAGWEEN [2024] WASC 389
CORAM: MCGRATH J
HEARD: 21 OCTOBER 2024
DELIVERED : 21 OCTOBER 2024
PUBLISHED : 22 OCTOBER 2024
FILE NO/S: INS 86 of 1994
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DAVID ANTHONY MARCUS DJIAGWEEN
Accused
Catchwords:
Criminal law - Accused acquitted of charges on the grounds of insanity subject to custody order - Application to set limiting term of custody order - Custody order made under repealed legislation - Transitional provisions - Setting limiting term where custody order made in respect of multiple charges - Setting limiting term where significant lapse of time since making of custody order
Legislation:
Criminal Code (WA)
Criminal Law (Mental Impairment) Act 2023 (WA)
Criminal Procedure Act 2004 (WA)
Result:
Limiting term set as 11 years
Proceedings adjourned pursuant to s 265(7) of Criminal Law (Mental Impairment) Act 2023 (WA)
Category: B
Representation:
Counsel:
| Applicant | : | Ms A Finn |
| Accused | : | Ms K Gorski |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v Chokolich [2024] WASC 346
The State of Western Australia v Smith [2024] WASC 361
MCGRATH J:
(This judgment was delivered extemporaneously and has been edited to include full references to relevant evidence and authorities)
Introduction
The Director of Public Prosecutions has applied to the Court under s 261 of the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act) to set a limiting term in respect Mr Djiagween's existing custody order.
In 1993, Mr Djiagween was charged on indictment with the following 10 offences contrary to the Criminal Code (WA):
(1)attempted unlawfully to kill Arthur Flatz contrary to s 283(1) of the Criminal Code (count 1);
(2)in the alternative to count 1, with the intent to do some grievous bodily harm to Arthur Flatz, unlawfully wounded Arthur Flatz contrary to s 294(1) of the Criminal Code (count 2);
(3)stole a firearm the property of Francis Djiagween contrary to s 378 of the Criminal Code (count 3);
(4)stole a motor vehicle the property of Cherie Ellis contrary to s 371A and s 378 of the Criminal Code (count 4);
(5)attempted unlawfully to kill Arthur Flatz contrary to s 283(1) of the Criminal Code (count 5);
(6)made a threat with intent to prevent or hinder the doing of an act by Brett Dellar who was lawfully entitled to do that act contrary to s 338A(c) of the Criminal Code (count 6);
(7)went armed in public without lawful occasion in such a manner as to cause terror to Stanley Ward contrary to s 68 of the Criminal Code (count 7);
(8)made a threat with intent to prevent or hinder the doing of an act by Brian Jefferies who was lawfully entitled to do that act contrary to s 338A(c) of the Criminal Code (count 8);
(9)attempted unlawfully to kill Robert Steers contrary to s 283(1) of the Criminal Code (count 9);
(10)in the alternative to count 9, made a threat with intent to prevent or hinder the doing of an act by Robert Steers who was lawfully entitled to do that act contrary to s 338A(c) of the Criminal Code (count 10).
On 12 April 1995, following a three day trial before Walsh J and a jury in the Supreme Court sitting in Broome, Mr Djiagween was found not guilty of eight counts on the indictment on the grounds of unsoundness of mind. It was not necessary for the jury to deliver a verdict on counts 2 and 10 given that those counts were pleaded as statutory alternatives to counts 1 and 9 respectively.
The effect of the jury's verdicts was that, while they were satisfied beyond reasonable doubt as to the elements of each offence, they were also satisfied that Mr Djiagween was not criminally responsible for the acts constituting those offences by reason of his mental disease or natural mental infirmity.
Pursuant to s 653 of the Criminal Code, Walsh J ordered that Mr Djiagween be kept in strict custody subject to the Governor's pleasure. Upon the commencement of the Criminal Law (Mentally Impaired Accused) Act 1996 (repealed Act), Mr Djiagween became a 'mentally impaired defendant' within the meaning of pt 5 of the repealed Act and subject to a custody order under that Act. The repealed Act was, in turn, repealed by the CLMI Act, which commenced operation on 1 September 2024.
The transitional provisions in pt 14 of the CLMIAct provide that a custody order under the repealed Act in effect immediately before the commencement day (existing custody order), has the effect as if it were a custody order made under pt 5.[1] Mr Djiagween is, therefore, subject to an existing custody order.
[1] CLMIAct, s 254.
Mr Djiagween has, accordingly, been subject to custody pursuant to the Criminal Code, repealed Act and now the CLMI Act for 29 years, 6 months and 10 days.
I am required to set a limiting term for Mr Djiagween's existing custody order, being the best estimate of the term of imprisonment that the Court would, in all of the circumstances, have imposed if the Court were sentencing Mr Djiagween and he had pleaded guilty to the counts on the indictment at the earliest opportunity and his mental impairment was not taken into account.
If the limiting term that I set expires on or before today, I must adjourn the proceedings until the Minister applies to the Court for an extended custody order under pt 7 div 5 of the CLMI Act or informs the Court that such an application will not be made.[2]
[2] CLMI Act, s 265(7).
In this case the parties agree that, properly applying the provisions of the CLMI Act, whatever limiting term I set will have expired before today's hearing. However, I am still required to set a limiting term for Mr Djiagween's custody order. For the reasons that follow, I would set the limiting term for the custody order as 11 years. That term is taken to have commenced on 22 November 1993.
Given that the limiting term expired before today, it is therefore necessary that I adjourn the proceedings until the Minister applies to the Court for an extended custody order or informs the Court that such an application will not be made.
Relevant legal principles
Quinlan CJ considered the applicable relevant legal principles in The State of Western Australia v Chokolich,[3] and in The State of Western Australia v Smith.[4] I will outline the relevant legal principles that I must apply in setting the limiting term for Mr Djiagween.
[3] The State of Western Australia v Chokolich [2024] WASC 346 (Chokolich).
[4] The State of Western Australia v Smith [2024] WASC 361 (Smith).
The requirement to set a limiting term for a custody order is found in s 50 of the CLMI Act. Section 50(2) provides that the limiting term is the best estimate of the term of imprisonment (or term of detention) that the Court would, in all the circumstances, have imposed if the Court were sentencing the person for the offence and any mental impairment of the person were not taken into account.
Section 50(3) provides that for the purposes of s 50(2), the Court must assume that the person had pleaded guilty to the charge at the earliest opportunity and there is no other option but to impose a term of imprisonment or term of detention.
In determining the 'best estimate of sentence', the Court should follow, as far as practicable, but with the necessary modifications, the procedure and legal principles applicable to a sentencing hearing in the Court and therefore, must have regard to the principles in s 6 of the Sentencing Act1995 (WA) in light of the ordinary sentencing principles.[5] Therefore, the limiting term must be commensurate with the seriousness of the offences. The seriousness of each offence is to be determined by taking into account the statutory penalty for the offence, the circumstances of the offence, including the vulnerability of any victim of the offence, and any aggravating factors and mitigating factors.
[5] Smith [17]; Chokolich [50] - [51].
Whilst the person is taken to have pleaded guilty at the earliest opportunity, this does not require the Court to impose the maximum discount.
The respondent's custody order was made in respect of eight counts on the indictment, but only one limiting term is required.[6]
[6] CLMI Act, s 50(2); Chokolich [21] - [41].
Accordingly, where a custody order was made in respect of multiple offences, as in the present case, the limiting term is to be the best estimate of the total effective sentence.[7]
[7] CLMI Act, s 50(4), s 51.
In determining the limiting term, issues of concurrency and accumulation must be considered in determining the overall criminality of the offending.
The formulation of the limiting term is necessarily an exercise that requires the Court to 'stand in the shoes' of a hypothetical sentencing court.[8] It is an estimate that acknowledges the compromised nature of the court's estimate of sentence when bound to apply the assumptions in s 50(2)(b) and s 50(3) of the CLMI Act.
[8] Chokolich[60], [61].
In determining the limiting term on a custody order, s 50(2)(b) of the CLMI Act requires the Court to estimate the sentence it would have imposed 'if any mental impairment of the person were not taken into account'.
That the offender's mental impairment is not to be taken into account means that general deterrence is not reduced in formulating the limiting term on the basis that the person is not an appropriate vehicle for the application of the principle of general deterrence. That is, the Court may have regard to the importance of general deterrence by reference to authorities that apply to the category of offending in question. General deterrence is to be assessed by reference to the objective seriousness of the offending.[9]
[9] Smith [98].
Similarly, specific deterrence is not to be discounted in formulating the limiting term on the basis that it is more difficult to achieve, or not worth pursuing, as a consequence of the mental impairment of the offender.
Further, the person's mental impairment can neither reduce the limiting term by reason of diminished responsibility, nor increase it, for example by reason of callous premeditation or disregard of the victims.[10]
[10] Chokolich [73].
The Court need not engage in any weighing of the countervailing effects of mental impairment on the hypothetical sentence. The protection of the community and the rehabilitation of the person by provision of treatment, care and support are, separately, the paramount considerations and principles to be considered pursuant to s 7(2) when determining the limiting term.
The Court may still take into account the person's antecedents in determining the limiting term. Further, the offender's criminal history remains relevant when considering the aims of punishment, deterrence and the protection of the community, which would ordinarily be relevant to the imposition of a sentence for the relevant offence.
It is appropriate for the Court to confine its consideration of the personal circumstances of the respondent to those at the time of the making of the custody order, and not to take into account subsequent charges or other matters.
The Court makes the best estimate based on what it would have imposed if it were sentencing the person today by reference to current sentencing standards and without reference to later offending.[11]
[11] Smith [42] - [57].
Factual circumstances of the counts on the indictment
At the hearing of the application, counsel for the State read an amended statement of material facts which was accepted by Mr Djiagween as the facts upon which this application will be determined. The amended statement of material facts that were read to the Court are in the following terms.
1.Mr Djiagween was charged in relation to two separate incidents in 1993, each involving an attempt on the life of Arthur Ernest Flatz (victim), a man Mr Djiagween believed had sexually abused him as a twelve-year-old child.
2.In the first incident, Mr Djiagween went to the victim's home and attacked him with a knife.
3.In the second incident, Mr Djiagween stole a rifle and a car, and attempted another attack on the victim at his home. While being pursued by police, he made threats with the rifle.
4.Mr Djiagween was then 19 years old.
5.The victim later died in an unrelated incident. During Mr Djiagween's trial, the investigating officer gave evidence that the police held no record of a complaint that the victim had committed, or was suspected of committing, sexual offences against any child.
Count 1
6.On 19 October 1993 at about 9:00 pm, Mr Djiagween went to the home of the victim, at 17 Robinson Street, Broome. The victim was sitting on the floor of his lounge-room, watching television, with the door to his unit open.
7.Mr Djiagween stood in the doorway and then lunged at the victim with a knife, striking the victim on his right arm. The victim stood up and turned around, recognising Mr Djiagween. The victim tried to push Mr Djiagween out of his unit. During the struggle, Mr Djiagween slashed the victim with the knife several times. Mr Djiagween then ran from the address.
8.Police arrived and took the victim to Broome Hospital where he was treated for knife wounds inflicted by Mr Djiagween. He had three slash wounds on the left side of his abdomen: one was 10 cm long and 2 cm deep; one was 6 cm long and merely superficial; and one was 3 cm long and also superficial. The victim also had slash wounds across his left hand and fingers, and one slash would on the back of his right arm. Doctors cleaned and sutured the wounds.
9.Police arrested Mr Djiagween later that night. Mr Djiagween participated in a typed record of interview. He made full admissions to stabbing the victim with the intention of stabbing him to death, for 'being a child molester'.
10.On 25 October 1993, Mr Djiagween was released on bail.
Counts 3 to 9
11.After Mr Djiagween was released on bail on 25 October 1993, he went to stay with his uncle, Francis Djiagween (Francis). Francis had several firearms hidden in a cupboard in his bedroom.
12.On 29 November in the early hours of the morning, Mr Djiagween retrieved one of Francis' rifles without his consent (Count 3).
13.Upon realising Mr Djiagween had left the property, Francis telephoned Mr Djiagween's sister, Elizabeth Djiagween (Elizabeth). Elizabeth and her de facto partner got into a Ford Falcon station wagon, registration number 7PC871, to go and look for Mr Djiagween. There were two children in the back seat of the car. The car belonged to Cherie Ellis (Ellis), who had loaned the car to Elizabeth and her partner a few days earlier, because their car had broken down.
14.Elizabeth's partner was driving the car up the highway towards Crab Creek when Elizabeth observed Mr Djiagween walking on a dirt track. Her partner pulled over so that Mr Djiagween could get into the car.
15.As Mr Djiagween got into the car, Elizabeth saw he was holding a rifle. Elizabeth asked Mr Djiagween to hand the rifle over to her, but he did not.
16.They drove towards Morgan Camp, where Elizabeth believed her brother, James, might be able to help disarm Mr Djiagween. As the car passed the one-mile post near the airport, Mr Djiagween fired the rifle out of the back driver's side window, whilst he was seated next to the two children.
17.When they arrived at Morgan Camp, Elizabeth, her partner, and the children all got out of the car to look for James. When they did so, Mr Djiagween got in the driver's seat of the car and drove away (Count 4). Ellis had not given Mr Djiagween permission to take the car.
18.Mr Djiagween drove to the victim's unit, arriving between 7:00 and 8:00 am. Mr Djiagween saw the victim's car outside the unit and guessed that he was inside. Mr Djiagween, while still in the car, started yelling and swearing at the victim. Mr Djiagween then raised the rifle and, from a short distance, fired two shots at the unit, intending to kill the victim (Count 5). The victim was inside his home at the time the shots were fired and immediately called police. No person was harmed by Mr Djiagween's gunfire.
19.Mr Djiagween then sped off, still in Ellis' car, ramming into the victim's car on his way.
20.Mr Djiagween drove to Dora Street in Broome where he parked the car and went to see a friend. Police gathered near the car and waited for Mr Djiagween to return. When Mr Djiagween came out of the unit and got into the car, three police vehicles followed him. A high-speed police chase ensued.
21.Police Constable Brett Dellar (P/C Dellar) was instructed by a senior officer to cordon off Robert Street as the police chase was taking place, so that no one could drive through there. He did so and then drove away. Not long after, whilst driving his police car, P/C Dellar saw in his right side mirror Mr Djiagween driving behind him in Ellis' car. As P/C Dellar watched, Mr Djiagween threatened P/C Dellar by lifting the rifle up outside the window and pointing it directly at him. Mr Djiagween intended to prevent P/C Dellar from following him in his police car (Count 6). P/C Dellar slid down in his car seat as low as he could go and watched Mr Djiagween turn left and drive away down another street.
22.Stanley Ward was working on the roads for the Broome Shire at the time. He was standing on the corner of Barker and Robinson Street, working, when Mr Djiagween drove past him. As Mr Djiagween got closer to Mr Ward he pointed the rifle out of the car window, causing Mr Ward to become frightened (Count 7). Mr Ward ran away and hid behind a nearby house.
23.Sergeant Brian Jefferies (Sgt Jefferies) took over the car pursuit at the intersection of Frederick and Robinson Streets. He chased Mr Djiagween back to the victim's unit. Mr Djiagween pulled up in front of the victim's unit and Sgt Jefferies also stopped in his police car some distance away. Sgt Jefferies watched Mr Djiagween get out of Ellis' car with the rifle. Mr Djiagween threatened Sgt Jefferies, by pointing the rifle straight at him, with the intention of preventing Sgt Jefferies from pursuing him any further (Count 8). In fear for his own safety, Sgt Jefferies was forced to take evasive action by accelerating across the intersection and out of sight of Mr Djiagween.
24.Mr Djiagween got back in Ellis' car and drove away again, with two or three police cars chasing him. Mr Djiagween lost control of the car on Dora Street, where he abandoned the car and ran away on foot, still carrying the rifle. Several police officers followed Mr Djiagween on foot, led by First Class Constable Robert Steers (P/C Steers), whilst yelling at Mr Djiagween to stop and drop the gun.
25.Mr Djiagween stopped running, turned around and lifted the rifle to his shoulder, aiming it directly at P/C Steers from a short distance away, with the intention of firing the rifle to kill him (Count 9). Another police officer standing behind P/C Steers also yelled at Mr Djiagween to drop the gun and, when Mr Djiagween failed to do so, he fired a warning shot into the ground. Mr Djiagween then dropped the rifle and got on the ground, and police arrested him. Police seized the rifle, a .22 calibre firearm, and found one round in the chamber.
26.Mr Djiagween participated in a video record of interview with police, during which he admitted that he had attended the victim's address in order to kill him because '[t]hose things in my mind tell me to do it'. Mr Djiagween also admitted to having taken the rifle from Francis' house. Further, when police asked Mr Djiagween why he pointed the rifle at police, Mr Djiagween said, '[t]o shoot them'.
Time spent in custody
Counsel for the State confirmed that Mr Djiagween had spent 1 year, 4 months and 21 days in custody prior to commencing the custody order on 12 April 1995. Since the commencement of that custody order, Mr Djiagween has spent a further 29 years, 6 months and 10 days subject to the existing custody order. Between 26 October 1998 and 26 January 2004, whilst subject to the existing custody order, Mr Djiagween was released into the community subject to a conditional release order. Whilst Mr Djiagween was in the community on the conditional release order he remained subject to the existing custody order.
On 27 January 2004, Mr Djiagween was arrested in respect to other matters and returned to custody. On 13 February 2004, the conditional release order was cancelled and, therefore, Mr Djiagween returned to custody pursuant to the existing custody order.
Accordingly, Mr Djiagween has spent in total 30 years, 10 months and 31 days either incarcerated prior to sentencing or subject to the existing custody order.
I now turn to assess the relevant sentencing factors and determine the limiting term.
Relevant sentencing factors
Maximum penalty
The maximum penalty for the counts on the indictment are as follows:
Count
Offence
Maximum penalty
1
Attempted murder
Life imprisonment
3
Stealing
7 years' imprisonment
4
Stealing a Motor Vehicle
7 years' imprisonment
5
Attempted murder
Life imprisonment
6
Make a threat
7 years' imprisonment
7
Armed in public
2 years' imprisonment
8
Make a threat
7 years' imprisonment
9
Attempted murder
Life imprisonment
Mr Djiagween's personal circumstances
Mr Djiagween was born in Broome and was 19 years of age at the time of the offending. He is now 51 years of age.
Mr Djiagween identifies as part of the Bardi and Yawuru people. He grew up with a large family, including siblings. Mr Djiagween has maintained contact by telephone with his extended family whilst incarcerated under the extended custody order.
Mr Djiagween completed his formal education when he was 15 years of age. In respect to substance abuse, Mr Djiagween commenced using cannabis and alcohol at approximately 14 years of age.
After the offending, Mr Djiagween was diagnosed with schizophrenia and has been assessed as having cognitive deficits that are chronic and persistent, with IQ scores meeting the criteria for an intellectual disability.
Mr Djiagween has a criminal record for other offending prior to the offences the subject of this application. Previous convictions include common assault, resisting arrest, firearms offences, threatening behaviour, offences against public order, breaking and entering, and stealing. The fact that Mr Djiagween has a criminal record is not an aggravating factor, but the limiting term is not to be determined on the basis that he is a person of good character.
Seriousness of the offending
I now turn to the seriousness of the offending.
Count 1
There are a number of aggravating features in respect to the first incident (count 1).
First, the victim was a 61‑year‑old man and Mr Djiagween was a 19‑year‑old man.
Second, the victim was at his home unarmed and Mr Djiagween entered and commenced the attack on the vulnerable victim.
Third, Mr Djiagween armed himself with a knife which may be used as a lethal instrument to inflict either very serious or fatal injuries to the victim.
Fourth, there was a degree of premeditation. Mr Djiagween told the police that he went to the victim's home wanting to 'fucking stab the cunt'. The intent to kill elevates the objective seriousness of count 1.
Fifth, Mr Djiagween inflicted multiple wounds, with one serious stab wound to the left side of the victim's abdomen, which was 10 cm long and 2 cm deep.
In respect to count 1, Mr Djiagween believed that the victim was a child molester and that he had sexually abused him as a child. It remains unclear whether that belief is factual or part of Mr Djiagween's mental illness. The psychiatric evidence at trial was that the belief had been incorporated into his delusions.
The State submits that in such circumstances, the Court should not take into account the vigilante nature of the offending as an aggravating factor. I accept that submission.
Counts 3 to 9
I now turn to the aggravating factors in respect to counts 3 to 9. In respect to the attempted murder (count 5), the State submits that the seriousness of that count is less than count 1. I accept that submission. However, the discharging of a firearm at the victim's residence remains serious.
In respect to counts 3 to 9, there are a number of aggravating factors.
First, Mr Djiagween was on bail in respect to count 1 when he did the acts comprising counts 3 to 9.
Second, Mr Djiagween had possession of the firearm whilst in the vehicle in the presence of the two children and adults. Mr Djiagween discharged the firearm when seated next to the children.
Third, counts 4 to 9 involved a dangerous course of conduct in public areas.
Fourth, Mr Djiagween was persistent in his conduct and further, he attempted to flee from law enforcement officers.
Fifth, counts 6, 8 and 9 involved offending directed towards police officers who were carrying out their duties. The fact that the officers were not physically injured is not mitigating, it is merely the absence of a further aggravating factor.
Mitigating factors
The principal mitigating factor for Mr Djiagween is that he is deemed to have pleaded guilty at the first reasonable opportunity. Accordingly, I grant a 25% discount under s 9AA of the Sentencing Act.
A further mitigating factor is youth. Mr Djiagween was only 19 years of age at the time of the offences. I take his youth into account as a mitigating factor.
Best assessment of the sentence that would have been imposed
After considering all relevant sentencing factors, including the discount for a plea of guilty and customary standards of sentencing, I have determined that the sentences for the individual offences would have been:
Count
Offence
Penalty
1
Attempted murder contrary to s 283(1) of the Criminal Code
7 years' imprisonment
3
Stealing contrary to s 378 of the Criminal Code
6 months' imprisonment
4
Stealing a Motor Vehicle contrary to s 371A and s 378 of the Criminal Code
18 months' imprisonment
5
Attempted murder contrary to s 283(1) of Criminal Code
5 years' imprisonment
6
Make a threat to prevent or hinder contrary to s 338A(c) of the Criminal Code
2 years 6 months' imprisonment
7
Armed in public in a manner as to cause terror contrary to s 68 of the Criminal Code
18 months' imprisonment
8
Make threat with intent to prevent of hinder contrary to s 338A(c) of the Criminal Code
2 years 6 months' imprisonment
9
Attempted murder contrary to s 283(1) of the Criminal Code
4 years' imprisonment
Applying the first limb of the totality principle, it is necessary that I ensure that the total effective sentence properly reflects the overall criminality of the offending as a whole.
Accordingly, I must consider which terms of imprisonment will be served concurrent with the other terms. There must be a degree of accumulation of the terms of imprisonment. Count 1 will be the head sentence. Count 9 will be served wholly cumulative with count 1. The further counts 3, 4, 5, 6, 7 and 8 will be served wholly concurrent with count 1.
Therefore, I am satisfied that the best estimate of the term of imprisonment that the court would, in all the circumstances, have imposed for the 8 offences, based on the assumptions in s 50 of the CLMI Act, is 11 years. I will therefore set the limiting term for Mr Djiagween's existing custody order pursuant to s 264 of the CLMI Act as 11 years.
In accordance with s 264(3) of the CLMI Act, that limiting term is taken to have commenced on the day on which the existing custody order was made unless the Court orders that the term be taken to have commenced on an earlier date. Given that Mr Djiagween had spent 1 year, 4 months and 21 days in custody in respect to the offences prior to the making of the existing custody order on 12 April 1995, I order that the limiting term is taken to have commenced on 22 November 1993.
Adjournment of proceedings
Section 265 of the CLMI Act applies where a limiting term is set under s 264 and the limiting term expires on or before the day on which the limiting term is set. In the present case, the limiting term expired nearly 20 years ago.
Accordingly, pursuant to s 265(2) of the CLMI Act, Mr Djiagween's existing custody order will continue until an order is made by this Court under s 265(6). Section 265(6) provides that the Court must either make an order discharging Mr Djiagween from the existing custody order or make an order under pt 7 div 5 of the CLMI Act, being an extended custody order.
Before determining whether to discharge the existing custody order or make an extended custody order under s 265(6), the Court must adjourn the proceedings until the Minister applies for an extended custody order or informs the Court that such an application will not be made.[12]
[12] CLMI Act, s 265(7).
Accordingly, the proceedings will be adjourned to a date to be fixed to enable the Minister's intention to be known.
Orders
For these reasons, I order that the limiting term for the custody order in respect of Mr Djiagween made on 12 April 1995 pursuant to s 653 of the Criminal Code, and continued pursuant to pt 5 of the repealed Act, and further continued as a custody order under the CLMI Act, be set as 11 years.
I also order that the proceedings be adjourned pursuant to s 265(7) of the CLMI Act until a fixed date, with liberty to apply to relist the matter.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
22 OCTOBER 2024
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