Yates v The Queen

[2013] HCATrans 16

[2013] HCATrans 016

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P21 of 2012

B e t w e e n -

GREGORY JOHN YATES

Applicant

and

THE QUEEN

Respondent

FRENCH CJ
HAYNE J
CRENNAN J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 FEBRUARY 2013, AT 10.01 AM

Copyright in the High Court of Australia

MS K.J. FARLEY:   If it please the Court, I appear for the applicant.  (instructed by Legal Aid WA)

MR B. FIANNACA, SC:   May it please the Court, with my learned friend, MS S.H. LINTON, I appear for the respondent.  (instructed by Director of Public Prosecutions (WA))

FRENCH CJ:   Yes, Ms Farley.

MS FARLEY:   Your Honours, in August of last year the applicant, Gregory John Yates, had spent 26 years in custody for offences carrying maximum penalties of 20 years and 10 years respectively.  He was 51 years of age.  The 20 year maximum term offence had, in the same year as he committed it, been the subject of legislative change increasing the maximum penalty applicable for the behaviour from 10 years to 20 years.

In April of this year this applicant will have spent 26 years in custody as a sentenced prisoner for these offences.  The term imposed for the two offences, a substantial and finite period of seven years in custody, expired in 1994.  The first statutory review date for consideration of his release was in the middle of 1991 when he had served two‑thirds of his finite sentence.  That, your Honours, was 22 years ago.

The applicant contends in this application that the order made pursuant to section 662 of the Criminal Code, as it then was, by the learned sentencing judge, Justice Wallace, on 13 March 1987 and upheld by a majority of the Court of Appeal in Western Australia later that year was made in error and constitutes a significant miscarriage of justice as evidenced by his continued incarceration.

This matter comes before your Honours by way of application for special leave to appeal that was heard by video link to Perth on 16 November of last year by your Honours Justice Hayne, Justice Crennan and Justice Bell.  On that day orders were made that the application be referred to an enlarged Bench for argument as if on appeal. 

The matter commenced, as I have noted, on 7 August 1986 when Gregory Yates, then a 25‑year‑old intellectually disabled man, committed a serious sexual assault upon a seven‑year‑old girl in a public toilet in a shopping centre.  He was arrested and charged on 8 August 1986 and in relation to those two offences, one of deprivation of liberty, the other of aggravated sexual penetration, and has remained in custody since.  The trial commenced on 11 February 1987 and on 12 February after the close of the prosecution case and in the course of giving evidence in his defence, Gregory Yates gave evidence, perhaps consistent with his intellectual disability, that caused his counsel to ask for a short adjournment as the evidence being given ‑ ‑ ‑

FRENCH CJ:   I think we are familiar with that.  Then the plea of guilty was entered.

MS FARLEY:   Yes.

FRENCH CJ:   What we are looking to is the decision that was made by the Court of Criminal Appeal and whether that decision warrants the grant of special leave and, if so, what should be done about it.

MS FARLEY:   Yes.  If I can go directly perhaps to the sentence that was imposed by Justice Wallace in March of that year which led to the Court of Appeal decision.

FRENCH CJ:   Just on the question of that, before he actually imposed the sentence I think Justice Wallace did make some reference to a benefit to the prisoner arising out of the possibility of the imposition of an indeterminate sentence.

MS FARLEY:   Yes.  There was discussion as to that matter.  If I can take your Honours to page 133 of the appeal book, it follows a discussion that he had with Mr Davies, who was the prosecutor in the case, where he says at line 20:

I am inclined to agree with you there where the prisoner is viewed as a danger to the community, and the benefit that flows, which I think is largely misunderstood, is that instead of having the useless formality of a long term of parole to be served the authorities can fix at the appropriate time the proper period of parole ‑ ‑ ‑

That is commented on in the Court of Appeal decision both by his Honour the Chief Justice, as he then was, at page 187 of the appeal, commencing at line 15, where he says:

I should mention one matter which arose in the course of argument which it was suggested supported an affirmative answer to that question.

The question that the Chief Justice is referring to, at that point, is the question of whether there was significant evidence of dangerousness of the applicant such as to justify an order being made under section 662 of the Criminal Code.  So the Chief Justice states that there was one argument that supported that and there was an affirmative answer to the question – the question whether the antecedents - character, age, health, or mental condition of the applicant or special circumstances justified. 

One could anticipate that what the Chief Justice is referring to and what he goes on to say is that special circumstances justify the imposition of the section 662 order if one looks at it that way. That is to say that it was pointed out that a minimum term of imprisonment, if the sentence was to be in the order of seven years which the applicant concedes is an appropriate term for an offence of this seriousness, then the period to be served on parole would be long, would be approximately three and a half years in terms of the Offenders Probation and Parole Act, as it then was.

However, there was evidence before the Court that given the applicant’s intellectual disability he would have difficulty in serving out a parole term.  I would submit on behalf of the applicant that the only evidence that there was before the Court that would justify that was that he was intellectually disabled, that he did have prior convictions albeit, I would submit, of a minor and usually unrelated incident.  However, there was indication that like any intellectually disabled person, they may act in a socially inappropriate manner that would attract the interest of the police. 

The argument that was put before his Honour Justice Wallace and then commented on in the Court of Appeal was that the position of having the applicant placed on a long period of parole which might lock him for an interminable time into the criminal justice system which, ironically, is what has happened, can be avoided, says his Honour at line 40 on page 187:

by the use of s. 662 of the Code because if used then the result will be that having served two‑thirds of the finite term the offender will be eligible for parole and a parole period in such a case cannot exceed two years – s. 41(1)(c) and (3)(b) of the Offenders Probation and Parole Act ‑

So the situation was that with a finite term, less remissions, a person would serve two‑thirds of the sentence in custody.  If there was a minimum term, then that would equate to approximately half the term in custody.  The other half, of course, would be served on parole which, in Mr Yates’ position, would have been a lengthy period.

The use of the indeterminate term indicated that once he had served the two‑thirds, namely, just over four years, he would be eligible for parole if he was paroled by the Executive only for a period of two years, so it limited that.  As the Chief Justice, as he then was, quotes, quite rightly in our submission, at line 50 on that page:

I note that essentially pragmatic idea simply to put it on one side. The considerations underlying it have nothing to do with the policy underlying s. 662 of the Criminal Code and the use of that section for that reason cannot be sustained.

Justice Brinsden, with whom Justice Smith agreed, however, comments on page 198 of the application book, commencing at line 38:

In my view his Honour’s decision to utilize s. 662 was appropriate in this case as it is one that meets the requirements discussed in Tunaj.

The bottom line here, your Honours, is whether the decision was appropriately made that this man fell within the provisions of section 662 of the Criminal Code.

FRENCH CJ:   What do you mean by that?  Do you mean the application of the section properly construed, the application of the section by reference to relevant or irrelevant considerations?  What is the point of principle you are ‑ ‑ ‑

MS FARLEY: The point of principle is this, that we say that there was no sufficient evidence that would justify the making of the section 662 order in this matter that were available in the first instance.

CRENNAN J:   Is the position clear now just exactly what evidence was before Justice Wallace?

MS FARLEY:   It has been difficult to cobble that together.  It would appear – because the difficulty is that Justice Wallace, in his sentence, does not refer to what is taken into account.  He simply makes a determination that this man is a danger to the community.  He does not refer to the reports, but it would seem from what Justice Brinsden says in his judgment that there were reports available, and I direct you in that regard, your Honours, to page 194 of the application book at around line 52, where it indicates that:

His Honour obtained a pre‑sentence report and had before him a number of medical reports concerning the applicant.

Those reports - and it would be an appropriate time to take you to them at this stage - commence on page 110 of the application book with an antecedent report which attaches a court history and various reports.

BELL J:   Do I take it that at the time it was conventional in sentencing Western Australia for the officer in charge of the matter to prepare a document described as an antecedent report?

MS FARLEY:   Yes.  That was the practice at the time that the arresting officer would prepare an antecedent report.

BELL J: To the extent that section 662 requires the Court to take into account matters including antecedents, it may be that that term is broader but it would embrace the contents of the antecedent report form prepared by the officer.

MS FARLEY:   That is correct.

BELL J:   This antecedent report form recorded that the accused is retarded to a certain degree.

MS FARLEY:   That is correct.

BELL J:   Yes.

MS FARLEY:   Generally when that sort of antecedent report was – and still is – sent to the Court if there was an indication of that regard then that would be followed up, and there is some indication that that did occur with the reports that follow in the application book after the antecedent report.  The difficulty with those reports, your Honours, is that most of them do not refer at all to the offences that Justice Wallace was sentencing the applicant for.  Most of them predate that sentence, some of them by a number of years. 

None of them describe the applicant as dangerous or violent, only one, in fact, and that is at pages 114 to 129, being the social history – I am sorry, I have the wrong page there, the social history commencing at page 121 of the application book.  Only that one refers to his offending, and that is a social history that was written by a senior parole officer, Mr Elliott Levitt, and is dated 23 March 1987, which appears, interestingly enough, to postdate the sentencing of Mr Yates by approximately 10 days, so I am not quite sure of how much use that would have been to his Honour at first instance, although it would appear from the appeal book that I have had the opportunity to see that was lodged in relation to the appeal that was heard in June of that year that that report was available to at least the Court of Appeal if it was not available to his Honour at first instance.

The report describes the applicant’s prior offending behaviour at page 123 as “obscenity or dishonesty” and describes him at the bottom of page 124 as being:

a twenty‑six year old intellectually handicapped young man who functions at the level of a fourteen year old.

But, nowhere in that report does it describe him as having a propensity for violence or as being a danger to the community, to the public or to any person.  The psychiatric report of Dr Allen German at page 117 written in 1995 ‑ ‑ ‑

FRENCH CJ:   Now, this was based on a very brief encounter, was it not?

MS FARLEY:   Yes, and my respectful submission, your Honour, would be that it is a general comment upon the difficulties which attended the community in 1985 and, in my respectful submission, have not much changed since then, and contained on the bottom of page 117 it says in relation to a young man who is intellectually disabled by way of a brain injury:

I would doubt that his condition is “treatable” in any strictly medical sense.  He really presents the problem of the young brain‑damaged person in our society who is not sufficiently damaged to obviously require custodial or other institutional care.  At this juncture I would be inclined to agree with his parents that he is likely to end up in gaol, as many of these persons do.

There has been a number of prescient comments made in the course of this matter since 1986 and that, in my respectful submission, is one of them.  Professor German, in fact, draws no conclusion whatsoever and your Honour the Chief Justice has pointed out that in the second line of his report he said he “only had a few minutes with” the applicant because the applicant was “an hour late for his appointment”.  He recommended at approximately line 45 that it really could not be taken much further unless he admitted him to a psychiatric unit “for careful and sophisticated testing of his cerebral status”.

The only other psychiatric evidence is that of Dr Booth which appears on pages 126 and 127 of the application book.  Again, there is no suggestion in this psychiatric report that the applicant was a danger to the community.  In fact, at page 127, line 10 Dr Booth notes that whilst in remand the appellant had “been kept in seclusion for his own safety”.  Curiously, while this report dated 9 December 1986 postdates the charges the subject of this application, it does not comment at all on those charges, referring instead to other previous offences in line 32.

The closest any of the reports comes to predicting the applicant’s danger to society is contained in the report by a clinical psychologist in training, Ms McHugh, at pages 128 and 129 of the appeal book which, although not relating to these offences either, again having predated them, Ms McHugh finds that unless the applicant, “could be persuaded to cooperate with the AIHP” – this is on page 129 at line 21 and thereafter ‑ he will be “at risk of re‑offending”.

It is unclear totally from the report, however, at risk of what offending?  The applicant’s prior record discloses a number of offences for dishonesty, a number of offences of a nuisance particular and discloses, in my submission, only one previous offence of wilful exposure.  The only indictable offence that is disclosed is that of gross indecency for which he was placed on a period of three years’ probation. 

Can I say at this point, because otherwise I might forget it, there was some indication in the discussion in the Court of Appeal and also before Justice Wallace that at the time of committing these offences the applicant was on probation for the gross indecency charges.  That is not actually correct.  By the time these offences were committed and dealt with, the applicant had been dealt with by way of a breach of probation and had been fined $500 which, by the provisions of the Act in that era, cancelled the probation application. 

There was some confusion because he had previously been put on probation for dishonesty matters and that, interestingly enough, given his intellectual disability, he completed without incident.  So there is no indication from the report whether the risk of reoffending – and we would say that risk of reoffending is not of itself sufficient to entitle the court at first instance or on appeal to find that this person is a constant danger to the community – seems again to come back to the to his intellectual disability.

The problem that the courts have had in dealing with this matter – and with respect this Court also has in a sense – is that were it not, in my submission, for this man’s intellectual ability, (a) there would be no way he would still be in custody 26 years down the track, and (b) it would be unlikely that this application would have needed to have been brought because there would have been no question of his dangerousness or otherwise to society and whether he fell into the provisions of section 662 of the Criminal Code.

There was indication that Mr Yates was unwilling to comply with directions given to him by the Authority for Intellectually Handicapped Persons, as it was at that time, and in fact Ms McHugh in her report says that unless he changes his view in that regard, which arguably he may not be able to do given his intellectual disability:

Otherwise I fear Mr Yates will be at risk of re‑offending on his release to the community.

This of course is what has not occurred. He has not been at risk of reoffending because he has been in custody since that time. Those were the objective assessments that were available at first instance to Justice Wallace when he sentenced the applicant and which were commented on by the Court of Appeal. Justice Wallace and the Court of Appeal found that on those assessments, given the seriousness of this offending and given the admitted intellectual disability of this man, then an order pursuant to section 662 should be made.

We would submit that part of the reason for that was, as your Honour the Chief Justice had said, that it would be of benefit, in a sense, to the applicant in terms of the parole period that he would otherwise describe.  This begs the question of whether he would ever get the opportunity to serve that period of parole because on the basis that he committed a serious offence, he is intellectually disabled and that there were reports that acknowledged that – and I will take it no further than that – it would seem that he has been denied the possibility of parole ever since then.

Now, I am aware that my learned friend has provided to the Court affidavits which annex statutory reports that were made available through the process of the Prisoners Review Board recommendation to the Executive in terms of the applicant’s possible release.  My submission in that regard is that the Court should have no mind to those matters and that the question for this Court is whether in 1987 there was sufficient to show that this order should be made on this particular person.  Having said that ‑ ‑ ‑

HAYNE J:   As to that, is it right to understand that at page 138 of the application book and see the sum total of the reasoning and identified considerations that were taken to account by the primary judge?

MS FARLEY:   Yes.  That is the entire sentence of the primary judge.

HAYNE J: At least an available point of view may be that there is no evident consideration in those sentencing remarks of the considerations that at least are relevant – may even be stronger than that – but considerations that would be required before making a section 662 order.

MS FARLEY:   Yes.

HAYNE J:   I note in that regard that if one is to look beyond the sentencing remarks to the course of argument, so far as reproduced in the application book at 133, the argument of the prosecutor at sentence appeared to be confined to – see lines 18 to 19:

the nature of the offence and the mental condition and antecedents ‑ ‑ ‑

MS FARLEY:   Yes.

BELL J:   Do we take the antecedents to be a reference to the report form which annexed the criminal history?

MS FARLEY:   Yes.

BELL J:   And contained such information as it did in the body of the document?

MS FARLEY:   Yes, and for realistic purposes for this section, your Honour has already pointed out the relevant part that states that he is intellectually retarded – he is retarded. 

HAYNE J:   Which leads to this further consideration; were it to be determined that the matters identified at sentence did not represent an assembly of the relevant considerations bearing upon the making of a section 662 order, it would be a classic House v The King in which specific error is identified and the Full Court should have exercised the sentencing discretion, at least in that respect – perhaps as a whole, let us leave that aside – afresh, and the jurisdiction of this Court is to do what the Full Court should have done.  Is that right?

MS FARLEY:   Yes, I would agree with your Honour.

HAYNE J:   Which leads to this difficulty, a difficulty not, I think, for your side of the record so much as the other side of the record.  If our jurisdiction is to do what the Full Court should have done, what is one to do in face of the fact that this man has now served more than the maximum term?

MS FARLEY:   It is a difficult question, your Honour, and ‑ ‑ ‑

HAYNE J:   Well, it is one to which no doubt reference may be made in the course of arguments in answer to yours.

MS FARLEY:   And it may well be, in that circumstance, that the more recent material referred to in the affidavits filed by my learned friend may become relevant, although I would seek to argue that there are a number of inaccuracies and difficulties with those.

BELL J:   You object to that material?

MS FARLEY:   I object to that material.

HAYNE J:   There is a Mickelberg problem if we get past the point of leave to consideration of powers on appeal.

MS FARLEY:   Yes.  Your Honours, really, the only other thing I would take you to, and it is in relation to the decision of the Court of Appeal, is that the clear difference between his Honour the Chief Justice as he then was and the majority in the matter is that the majority in the matter agree with the finding at first instance, based as it is on the material before Justice Wallace that the test in Tunaj of constant danger to the community has been, they believe, on the evidence, established, which we say is a difficulty because the primary decision, we say, was not sustainable and then was followed on by the Court of Appeal, but they also ‑ ‑ ‑

HAYNE J:   I would understand you to say that in the material available, both at sentence and on appeal to the Full Court, the only reference one finds is to the danger of reoffending without specification of the nature of the offences that may be committed in the future.

MS FARLEY:   Yes.  I think the only difference between the two, arguably, is the social history, which appears to predate the sentencing at first instance, but was available in the appeal book – yes.

FRENCH CJ:   Just going a little further to what Justice Hayne was adverting to earlier, I think.  If this application were being heard, say, within the ordinary time limit, then there would be a lot of the finite sentence yet to be served.  If you were successful in a challenge, let us say back at that time, to the 662 disposition, then the matter might well go back to the sentencing judge because the 662 disposition may have played a part in the fixing of the finite terms.

MS FARLEY:   I have no doubt it did; yes, sir.

FRENCH CJ:   That, of course, has become academic.  So, there is no room for, as it were, refashioning a sentence that leaves open the possibility of support programs and so forth if the man is released at this stage.

MS FARLEY:   No, that is a difficulty.  I did look at your Honours’ dispositions in a couple of other matters such as McGarry where the matter was sent back but that was with a suggestion that the finite term be increased in the circumstances and it was still being served.  The other matter of Muldrock which was a decision in 2012 of this Court where again the matter was sent back, but again ‑ ‑ ‑

FRENCH CJ:   That was the parole period?

MS FARLEY:   It was a parole period issue.  The difficulties that your Honours are under is that if you sent the matter back to the Court of Appeal they could not actually impose ‑ ‑ ‑

FRENCH CJ:   There was nothing much they could do.

MS FARLEY:   ‑ ‑ ‑ what is served because he has served greater than the maximum penalty as it is, in any event.

FRENCH CJ:   I mean, the practical difficulty I suppose is, and perhaps it is the difficulty that faces any long term prisoner, is that absent any parole period the doors of the prison open and 26 years after they have been entered.  That is not necessarily relevant to the question of the disposition of the matter, it is just a practical concern, I suppose.

MS FARLEY:   I would say that it is not relevant to the disposition and that the situation is simply, as it were, had the matter been brought before the Court whilst he was still in custody and then, as I say, or as your Honour says, the question would be whether one remitted it back for reconsideration of the sentence as to whether the finite term remains the same, becomes increased or becomes the subject of a minimum to provide that support.  There is, however – in Western Australia now there are very, very stringent conditions placed on offenders reporting after the term of their sentence to which my understanding of it would apply to Mr Yates and it is the Community Protection (Offender Reporting) Act (2004) which provides for registration of offenders that fall within the definition. 

This portion of the matter I apologise, your Honours, only occurred to my instructing solicitor and quite recently when we saw one of the reports that was provided by my learned friend.  Basically, Mr Yates falls under section 2 of that Act as being potentially a person subject to it and that is a person who is in existing government custody who is an “existing controlled reportable offender”.  When one refers back to the definition section of that Act ‑ ‑ ‑

HAYNE J:   Sorry, what is the name of the Act, you did give it to us?

MS FARLEY:   The Act is the Community Protection (Offender Reporting) Act.

HAYNE J:   Of what year?

MS FARLEY:   2004.

HAYNE J:   Thank you.

CRENNAN J:   Who makes the decisions about the registration?  Is that an Executive decision?

MS FARLEY:   That is an Executive decision, as I understand it.  There are provisions within that Act to prohibit conduct and, I must admit, I have not come across the Act myself in practice but having recently read it ‑ ‑ ‑

FRENCH CJ:   Does this apply to offenders going back that far?

MS FARLEY:   Yes, well, I think it does, when one looks at the definition section of an existing controlled reportable offender in section 2 in the definition section, because it relates to a person who is in existing government custody who has committed a controllable offence which is particularly sexual offences contained in the schedules.  The prohibited conduct can be under section 93:

(a)       associating with . . . specified persons or kinds of persons;

(b)       being in specified locations . . . 

(c)       engaging in specified behaviour –

the list goes on.  The controls are quite draconian, if I can put it that way, in terms of what will apply to reportable offenders.  It would be my understanding that this person is a reportable offender and, as I say, it became indicative to me that that was the case when I was provided strictly confidentially with the ninth statutory report which refers to the applicant being answerable to ANCOR, which is the child sex offender registry, and that would trigger the provisions of the Reporting Act.

Overarching all of that, and in further answer to your Honour the Chief Justice’s question, necessarily it can be read into the material that since this applicant was three or four years of age he has been under the auspices of the Authority for Intellectually Handicapped Persons, which is now the Disability Services Commission.  It is clear from the reports that the Disability Services Commission is involved and they of course would have an overarching responsibility because of the nature of Mr Yates’ disability to provide assistance to him.  At this point I do not think I can take the matter further.

FRENCH CJ:   All right.  Thank you.

MS FARLEY:   Thank you.

FRENCH CJ:   Mr Fiannaca.

MR FIANNACA:   May it please the Court.  If your Honours please, the difficulties that have been alluded to in the course of discussion with my learned friend arise largely because the application is brought so far out of time.  We approached the question of the application for the extension of time with some caution and some reluctance in opposing it.  However, given the impact that any grant of special leave would have in terms of the inability for Mr Yates to be released under any form of supervision, which is very different to the imposition of prohibitive orders that would prevent him from doing things, there is a clear need from what has been disclosed in the reports at the time of sentencing, let alone what has come to light in more recent times when Mr Yates has been in custody, but there is a clear indication that he cannot cope on his own in the community and that he would require supervision.

In light of that, in light of the fact that it would anomalous that a man who, we would respectfully submit, has been shown to be a danger, and we will come to the specifics of that in the course of our argument, and who would otherwise not be able to cope in the community and require support, it is not just a question of supervision, but intensive support, it would be anomalous that such a man would be released, simply walk out the prison door, as his Honour the Chief Justice has suggested, without any form of parole, without any form of control other than the prohibitive orders that could be made under the Community Protection (Offender Reporting) Act. 

Can I say immediately we accept that Mr Yates comes with the auspices of that Act and would be subject to the reporting provisions, and an application could be made in respect of him by the Commissioner of Police for prohibitive orders, but as I say the Act provides nothing in the way of a way of supervising a person in his position.

FRENCH CJ:   Now, prohibitive orders, they are a species of sort of control order, are they not?

MR FIANNACA:   They are, and they can prevent him from approaching particular places, for instance, in this case, there is clearly a concern about contact with children.  There could be orders that would control his behaviour in that regard.  Of course, a breach of that would bring him back into contact with the justice system.

HAYNE J:   And could confine where he lives?

MR FIANNACA:   Your Honours, I must say that I have not committed to memory whether that is one of the forms of prohibitive order.

HAYNE J:   Because if it can, it seems to me your argument is society has no arrangement other than prison with which to deal with this man.

MR FIANNACA:   Has no arrangement?

HAYNE J:   Arrangement other than prison to deal with this man.

MR FIANNACA:   Can I say this, your Honour, in relation to that?  I will be making an application to rely on the additional material – now on two bases because of the matter that has been raised by your Honour Justice Hayne about the way in which this Court would be required to deal with the matter if it found that there was specific error in the first instance and that the Court of Criminal Appeal erred in not finding there was specific error at first instance. 

Under the Criminal Appeals Act, section 41, the Court of Appeal, now, because Mr Yates if he had come back before the Court of Appeal in Western Australia, would be dealt with under the current Act, under that Act the court does have the capacity to have regard to information about what has happened since Mr Yates was first sentenced.

HAYNE J:   Why would he come under the current legislation if he went back for resentence?

MR FIANNACA:   Your Honours will have seen from the material provided by my learned friend in support of the application for special leave that initially the request was that this matter be referred to the Court of Appeal as a reference by the Attorney‑General.  That was declined.  If it had gone back to the Court of Appeal as a reference, the court would be entitled if it found that there had been error at first instance, would be entitled then in resentencing to have regard to new material, additional material.  It is in that way, your Honour, and that is the way in which the Criminal Appeals Act would have applied.

BELL J:   The Attorney‑General did not accede to that application so it hardly assists us, does it?

MR FIANNACA:   Well, with respect, your Honour, it does in this way that if this Court is required to deal with the matter essentially as the Court of Criminal Appeal would deal with the matter it does seem rather artificial to say that it must deal with the matter in the way the Court of Criminal Appeal would have been required procedurally to deal with the matter in 1987.  In our respectful submission, the proper procedural approach would be that now applicable to the Court of Appeal.

BELL J:   This is by way of supporting your opposition to the grant of special leave having regard to the lateness of the application.  Can I take this up with you?

MR FIANNACA:   Certainly.

BELL J:   The evidence of Ms Farley at application book 206 and following, discloses that following the judgment of the Court of Criminal Appeal in July 1987, the applicant remained in custody and that he had first come to the attention of Legal Aid in early 2011.  It is not challenged that the man suffers from a form of intellectual handicap.  In circumstances in which, following the matter coming to the attention of Legal Aid in early 2011, one sees the steps taken by Ms Farley in order to redress what might be perceived to be a problem touching on the administration of justice.  One would think that, perhaps, the lapse of time has been adequately explained.  It is not clear to me the basis of your opposition, Mr Fiannaca.

MR FIANNACA:   Well, your Honour, I am not sure on what basis Mr Yates was represented back in 1987.  There is no indication at that time whether he was legally aided or not.  He certainly had legal representation.  His counsel at that time, who by all ‑ ‑ ‑

FRENCH CJ:   That was Mr Sutherland, was it?

MR FIANNACA:   Mr Sutherland.  And on any reasonable assessment from the materials before your Honours, performed competently and took all appropriate measures at that time to redress what he considered to be the errors in relation to the sentencing of Mr Yates, yet no application was made at that time.  There is some indication in the materials upon which we would wish to rely, the eighth and ninth statutory reports, to suggest that Mr Yates has in the interim had some form of representation.

A public advocate, for instance, was appointed by the State Administrative Tribunal.  So there is no explanation why during that period those who have had some responsibility for looking after Mr Yates’ interests have not taken the step that has now been taken on his behalf.  Your Honour, can I say that we – do your Honours now have our outline of the respondent’s oral argument?  We did forward it yesterday but unfortunately it seems not to have reached your Honours until this morning.

FRENCH CJ:   Yes.

MR FIANNACA:   We do say, if I can direct your Honours’ attention to paragraph 13 of that outline, that we would in no way submit that fault for the delay is attributable either to Mr Yates or, indeed, to his current legal representatives.  But, in our respectful submission, that is not the end of the matter in terms of whether delay should be regarded as a matter that affects whether special leave is granted because it is the impact – perhaps I will put it in this way, as it is stated in our outline ‑ it is the undermining of the operation of the criminal justice system, and what has happened as a consequence of that, all of the steps that have been taken to assess Mr Yates over the last 21 years at least, and the steps that have been taken in preventing his release on parole because of the danger that he is perceived to pose to society, it is the undermining of all of those processes that justifies taking into account delay and not granting an extension of time unless – and that is really the crunch – a clear miscarriage of justice has been established.

BELL J:   I wonder if we can just take that up for a moment.

MR FIANNACA:   Certainly, your Honour.

BELL J: In your written submissions I think you acknowledge at paragraph 36 that “The sentencing judge did not, with respect, provide adequate” reasons to support the conclusion that it was an appropriate case in which to make a section 662 order. When one then turns to the Court of Criminal Appeal one finds that those in the majority approached the matter, so it seems on one reading of the matters, on the basis that the trial judge’s discretion had not been shown to have miscarried.

So one looks in the reasoning of Justice Brinsden at application book 197, line 40 and following to the matter being addressed in that way, and in the case of Justice Smith, who formed the other member of the majority, at page 201, line 30 and following.  Given your acceptance that the primary judge did not provide adequate reasons for the order that was made, is there a difficulty in the approach taken by the majority?

MR FIANNACA:   In our respectful submission, no.  It was not a ground of appeal then.  It is not a ground of appeal here that his Honour erred by not providing adequate reasons.  That would have been a rather tenuous basis for an appeal in any event because the question of whether there has been a miscarriage of justice, that would require establishing a miscarriage of justice in turn.  That means that the discretion has been miscarried.  It is a different thing, may I say, your Honour – and I do not mean to prevent your Honour from proceeding to your next question – but it is a different thing to say that there were inadequate reasons from saying that there has not been a proper consideration by the judge at first instance.

BELL J:   We are speaking of an order having the potential to detain a person for the balance of their natural life, and the Crown concedes that the sentencing judge’s remarks do not provide a basis for understanding how his Honour arrived at the satisfaction that it was an appropriate case to make that order.

MR FIANNACA:   I would need to reread our paragraph, your Honour, but essentially the concession is that his reasons do not disclose adequately what materials he relied on.  They do disclose, with respect, why he arrived at the decision that he did ‑ ‑ ‑

BELL J:   By reference to the statutory criteria?

MR FIANNACA:   No, but that then begs the question of whether at that time judges were in the habit of providing lengthy reasons for sentence that would include that sort of information.

BELL J:   Surely the decision in Tunaj itself made clear the nature of the considerations to which a sentencing judge should have regard before making an exceptional order of this character?

MR FIANNACA:   Indeed, your Honour, but the thing is this.  Your Honours do not have the full transcript of the sentencing submissions, the discussion that took place between his Honour and counsel before he proceeded to sentencing.  That is because we had been advised by the Registry of this Court that that material is not appropriate to be included in the application book or the appeal book.  We make no criticism of that approach, but it is the way in which we are bound to approach it.

The inclusion of page 133 was at our request because it showed the context in which his Honour made the comment that is relied upon by my learned friend as specific error in that he took into account an irrelevant consideration.  I need to deal with that in due course as a ground of appeal and why, we respectfully submit, it has no merit.

HAYNE J:   Mr Fiannaca, I speak only for myself.  I do not find it especially satisfactory that the prosecution should say in an application referred in for argument as on appeal that there is material not reproduced in the appeal book which it would say would justify the order that is in issue.  That is not a satisfactory position in which to ask us to form a view.

MR FIANNACA:   With respect, your Honour, I am responding to propositions that have been put to me and I am explaining why material that might have been relevant to answering that proposition is not in the appeal book, and it is not because we did not request it, we did request it and we were told that that material is not ordinarily included in the appeal book and would not be without proper cause.

FRENCH CJ:   What proposition would you putting if that material were available?  You obviously looked at it.

MR FIANNACA:   Yes, your Honour, and essentially his Honour the sentencing judge made it clear that what he was concerned with was the danger that ‑ ‑ ‑

FRENCH CJ:   You mean this is in the course of the submissions and argument?

MR FIANNACA:   In the course of the submissions and argument, and might well explain why it is a rather shorthand way of approaching it.  I do not suggest that his Honour embarked in any reasoning process in any detail referring to the reports and so on, and we can make the ‑ ‑ ‑

FRENCH CJ:   We do at least know, do we not, from the record that he referred to the possible beneficial aspects of an indeterminate sentence?

MR FIANNACA:   Yes, that is right, your Honour.  Well, he did that at 133, but our point in it was to put that in context in the way in which that came about, and it was in the context that the prosecutor submitted that this was a proper case for 662 because of the nature of the offence and the applicant’s antecedent.

FRENCH CJ:   The underlying thrust of that is that, having regard to the observation that his Honour made that there was thought to be some benefit in greater Executive flexibility in terms of parole, for example.

MR FIANNACA:   That is right, and that is then touched upon by his Honour the Chief Justice in his judgment.

FRENCH CJ:   He says that irrelevant.

MR FIANNACA:   He says it is irrelevant.  It is interesting though, and your Honours have the transcript of the argument at the Court of Appeal, it is interesting that his Honour the Chief Justice in fact raised that matter as a consideration that one might look to at page 157 of the appeal book, only later in the judgment, of course, to say that it is an irrelevant consideration, and quite properly so.  It is fair to say, I think, that in the course of discussion as these things are always a dynamic situation, in the course of discussion with counsel in the Court of Criminal Appeal his Honour went from that sort of analysis suggesting, look, this may be a rather humane and favourable sentence to Mr Yates in the end, to saying, obviously we need to look at whether there was a proper basis for making the order.

In the course of that his Honour the Chief Justice also says, and we have given the reference in our written submissions, that the fact that there is not a criminal record of offending of this kind previously of itself could be no basis to deny the application of section 662 because that would be to suggest that you would have to rape more than once in order to be regarded as a danger to the community. So, we have referred to that by way of submitting that nothing in the Chief Justice’s reasons should be regarded as suggesting otherwise, although his Honour appears in his reasons to have focused on Mr Yates’ record rather than the seriousness of the offence on this occasion and his intellectual impairment.

BELL J:   At the date the Court of Criminal Appeal considered the matter, is it right that Tunaj and Ciciora posited a test of satisfaction that the person would be a constant danger to the community?

MR FIANNACCA:   The test was that he would be a danger to the community.  The constant danger was introduced in Chester. 

BELL J:   I am sorry.

FRENCH CJ:   At paragraph 14 of your outline, you say there was a determination of the court below that the applicant was a constant danger and you cross‑refer paragraph 20 of your submissions and I cannot find any reference to that in that paragraph of your submissions.  Is there any finding in the Court of Appeal about constant danger?

MR FIANNACA:   Yes, your Honour.  I may have misstated the paragraph in our written submissions.  Your Honours, if I can take you to the judgment of Justice Brinsden.  Can I perhaps, so that I do not need to come back to it out of context later, deal with it and not have to deal with it again and that is the argument about specific error because it feeds into what we say about the court below, in fact, making an assessment that Mr Yates posed a constant danger.  I think the paragraph that my learned friend relies on in Justice Brinsden’s judgment on page 198 is the last paragraph where his Honour says:

The provisions of s. 662 coupled with the Offenders’ Probation and Parole Act enable the Parole Board to fix a term of parole more readily suitable to his requirements than would be so if a minimum term had been fixed which could not have been less than three years.

The suggestion is that his Honour has taken into account an irrelevant consideration and Justice Smith agreed generally with his Honour’s reasons and, therefore, both judges had fallen into error.  But, in our respectful submission ‑ ‑ ‑

CRENNAN J:   If you look at the sentence just above where you read, it seems what impressed itself on his Honour’s mind was a possibility or a probability of reoffending.  The same point made at about point 3 of the page which is categorically different, I would have thought, from the proposition that someone is a constant danger, or a danger to the community.

MR FIANNACA:   Well, I will come to that, your Honour, but can I say that that last passage on page 198 was clearly a response by way of explanation of the way in which the order would operate to what counsel for the applicant expressed during the course of argument and that is in the preceding sentence where his Honour says:

Counsel for the applicant, as well as the experts who have examined him, have expressed little confidence that he could undergo a long period of parole without re‑offending.

So he then goes on to explain, well under 662 a period of parole can be structured so as to be of some benefit in that way.

BELL J:   To this extent, this is his Honour accepting the argument that the scheme under 662 would avoid the difficulty of setting this intellectually handicapped man up to fail by giving him a lengthy period on parole given the likelihood that he would, in some way, reoffend and in that event necessarily breach the parole.  Is that so?

MR FIANNACA:   That is right.  So he has accepted that as the reality.

BELL J:   Can I take this up with you against the necessity to find that the applicant represented a positive danger – to use the expression in Ciciora – or a constant danger, under Chester, or even, simply, a danger?  The argument that there was a benign purpose to a term of indefinite detention on the basis that the parole period might be a short one, making it less likely that an intellectually handicapped person would encounter the criminal law in some way or another, tends rather against the conclusion of relevant dangerousness, does it not?  What it contemplates is, in the exercise of power under 662, this man might be released on, say, 18 months parole and there is a decent chance that he will get through that without any encounters with the law, whether for indecent exposure or shoplifting or anything of that character that might otherwise cause a breach of parole.  That is the thinking that informs the benign approach to the imposition of the 662 order and the flexibility in the parole period, is it not?

MR FIANNACA:   We would say, with respect, it does not appear that his Honour Justice Brinsden was making any prediction of that kind.  All he is saying is that the authorities, at the relevant time, having regard to what gains there might have been in his treatment whilst in custody could tailor a period of parole that is more suited to his requirements.  But, it certainly would have been ‑ ‑ ‑

BELL J:   But the thinking that I identify is the thinking that informs that idea, is it not?

MR FIANNACA:   It certainly is an aspect of the thinking.  During the course of argument, it seems to have been an aspect of the thinking.  I think, his Honour the Chief Justice, in discussion with Mr Sutherland, alighted on exactly that perspective, that is, that, all right, you are telling me that he is not going to survive on a parole order because he is likely to commit petty offences – if not something more serious – but at least petty offences.  The way in which you might deal with that is to have a shorter period of parole.  That could not have happened if you imposed a longer finite term.

BELL J:   The matter that I am taking up with you is, given the necessity to be satisfied that a person poses a positive or constant danger to the community in the sense that that was understood in Western Australia in 1987, what is the relevance of any consideration of release on parole?

MR FIANNACA:   In terms of the ‑ ‑ ‑

BELL J:   To the determination that a person who presents such a risk to the community as to justify an order of this stringency.

MR FIANNACA:   Well, the only relevance is that a person who is in that situation would need a degree of supervision at the end of the sentence and it was part of the mechanism in place, the legislative mechanism, at that time, of course, that he would be released on parole at the end of that period.  He would not simply be released without a period of supervision.  That is the only relevance.  But, otherwise, none, your Honour and that is why we accept that if it were demonstrated that the judge at first instance in the Court of Criminal Appeal took into account the benign benefit of a 662 order by way of structuring parole, they would have been in error.

But neither the judge at first instance nor the Court of Criminal Appeal did that, in our respectful submission.  The remarks of the judge at first instance, which we have acknowledged, are rather brief and perhaps providing less information than would have been desirable.

BELL J:   Do you resile from the proposition at paragraph 36 that:

The sentencing judge did not, with respect, provide adequate remarks that, by reference to the various medical reports, disclosed with sufficiency, the basis for the imposition of the indefinite sentence order.

MR FIANNACA:   No, we do not resile from that, your Honour.  But it is clear from page 138 that his Honour does not take into account in coming to that order this benign benefit of a limited and structured form of parole at the end of the term of imprisonment.  All he does at the very end of it is to provide some words of advice to Mr Yates that if he does what he is supposed to, “accept counselling and treatment” and so on then at the end of his term he may be released “upon a reasonable period of parole to be served within the community”.  That is something that is not unusual, for judges to speak directly to the prisoner at the end of sentencing remarks.  But, in our respectful submission, what precedes that clearly indicates that what his Honour has decided is that Mr Yates was a danger to the community.  It starts at the top of that page where he says:

The circumstances in which the crime was committed were serious enough without having regard to the particulars of each incident.

It gives some small detail of the information.  He goes on to say in the fourth paragraph at line 20:

From a community point of view you appear unable to control your deviant sexual instincts.  In my opinion you represent a danger to the community and in particular to young people.

Now, the only places that he could have got that information from is from the nature of the offence itself, the circumstances, and from the reports which talked about his sexual deviancy and I will come to some of those in a moment.  We then come to the decision of Justice Brinsden.  It is perhaps appropriate to start at page 198 of the appeal book and one works backwards from there to what information he relied on.  This is the conclusion he arrived at.  Your Honours will see it at line 2:

The character and mental condition of the applicant indicates a man with serious sexual problems which in the past have resulted in the commission of sexual offences.

That was true, there had been offences of a sexual nature, the evil designs, the loitering, those were ‑ ‑ ‑

BELL J:   Evil designs was punished with a fine of $20, I think.

MR FIANNACA:   Yes, it was, your Honour.

BELL J:   What further information was before the court ‑ ‑ ‑

MR FIANNACA:   It was accepted by counsel acting for Mr Yates that there was a sexual element, if you like, to those offences during the course of ‑ ‑ ‑

FRENCH CJ:   What does that mean?  I mean, there is a global reference to homosexual activities.  Does he pick that up as well?

MR FIANNACA:   Who is that, the counsel or Mr Yates?

FRENCH CJ:   In terms of the prior offences and prior conduct.  I mean, evil designs does not necessarily indicate an offence of the kind which led to his imprisonment.

MR FIANNACA:   No, although, as your Honour would appreciate, the sort of behaviour that occurred on the day that this little seven‑year‑old child was sexually abused and violently dealt with by Mr Yates does not, and it was not said in his case to have arisen just out of the blue, it clearly was a matter of him having in the past had deviant sexual attitudes, including the information from the parents about his having dealt with other children but that those matters had not been the subject of any criminal charges.

So there was all that information there to indicate that this was not just something that happened out of the blue, and it might be regarded as out of character.  But to continue with what his Honour says, because he comes to these conclusions on the basis of the information in the reports, and what his Honour says is:

Unfortunately he is not prepared to admit the commission of these offences –

and that was true, although it was perhaps more accurate to say that he would continue his denial until confronted with information, and then would make admissions, then go back to a position of denial, which appears to have happened since then as well.  But in any event –

he is not prepared to admit the commission of these offences thus inhibiting the opportunity of development of insight into the factors that contribute to the commission of them.

None of that, in our respectful submission, is remarkable.  It is all quite logical and based on the information that his Honour refers to earlier.  He then says –

In other respects he has shown an inability to accept the advantages offered to him in hostel and workshop settings.

He goes on to say:

At present however and for the foreseeable future he does represent a danger to the community particularly the young children within it.

In my view his Honour’s decision to utilize s. 662 was appropriate in this case as it is one that meets the requirements discussed in Tunaj.

So the first thing that is to be said is clearly his Honour came to the view that the circumstances of this case satisfied the requirements in Tunaj.

GAGELER J:   What about the sentence at line 20?

MR FIANNACA:  

The applicant is a man about whom it is very difficult to have any real confidence that his behaviour pattern will improve and that he will not re‑offend.

GAGELER J:   Is that consistent with the power being exercised only where it is shown to be demonstrably necessary to protect society from physical harm, or putting it another way, again using the language from Chester, where the record establishes that the applicant poses a constant danger of violent injury to the community?

MR FIANNACA:   It does in this way, your Honour.  What his Honour is there saying is that this is a factor, the lack of any real confidence –

that his behaviour pattern will improve and that he will not re‑offend, and seriously offend, when released into the community –

is obviously a factor that one considers in determining whether he is a constant danger to the community. Can we perhaps just remember that section 662, which is reproduced at page 12 of my learned friend’s written submissions, used disjunctive language when describing the criteria to which the court was to have regard? It said:

the court before which such person is convicted may, if it thinks fit, having regard to the antecedents, character, age, health, or mental condition of the person convicted, the nature of the offence or any special circumstances of the case –

make the direction.

So there could be cases, and we are not suggesting that this one was such a case, but there could be cases where the nature of the offence itself would be sufficient to justify the making of the order.  The prediction of whether a person would be a danger to the community and would reoffend in a violent way might arise precisely from the commission of the offence in the particular instance.  In this case there was the additional factor of Mr Yates’ mental impairment and his antecedents, but the mental impairment operated so as to prevent him from, at that point in time at least, indicating any capacity to change his attitude, to change the propensity that he had to behave in this way.  Obviously the commission of this very offence showed he had the capacity to do so, to be violent.

BELL J:   Show the propensity.

MR FIANNACA:   Well, one has to start with some indication of a propensity and the commission ‑ ‑ ‑

BELL J:   One may have to start with it, but we are looking at the sufficiency of the material to support the order in light of the principle that was recognised in 1987 to be applicable as to the level of dangerousness.

MR FIANNACA: Yes, but the legislature had provided, your Honours, that, even if the person had not been convicted previously of an indictable offence, there may be justification in the making of an order under section 662, the specific words “whether such person has been previously convicted of any indictable offence or not”. So, so far as the legislature was concerned, a person may indicate their danger to the community by virtue of the very nature of the offence that they have committed, the circumstances of the offence obviously bearing upon that. That was what was relied on by the prosecutor in his application in this case, in combination with Mr Yates’ intellectual impairment and his antisocial personality traits which were referred to by Dr Booth.

I have taken your Honours to the conclusion that Justice Brinsden arrived at which justified the making of the order and in his opinion and the opinion of Justice Smith showed that the judge at first instance had not erred in the exercise of his discretion in making that order.  The information upon which he relied to arrive at that decision is set out from pages 194 of the appeal book through to 197 and your Honours will see that his Honour referred to the obtaining of the presentence report.  My learned friend indicated that there might have been some doubt about whether that was before the sentencing judge although I think she has accepted that it must have been. 

The transcript in fact shows - of the proceedings before the sentencing judge and if your Honours are minded to be provided with a copy of the transcript, which we can do, it is at page 123 of the transcript that the presentence report was available at that point in time.  Counsel for Mr Yates, Mr Sutherland, referred to having had the opportunity of reading the presentence report at that point in time.  That report referred to the parents – and this is at 195, line 30:

having expressed concern about his sexual association with young children since 1976.  His previous record indicates both offences of dishonesty and offences of a sexual nature.

He then goes on to say this, and this again emerged from the reports and, in particular, the presentence report:

Those who have interviewed him have noted that though he is willing to admit offences of dishonesty he denies the commission of those offences which are or may be of a sexual nature.

One always understands that is a relevant consideration to insight into one’s offending, which in turn is a consideration in terms of risk.

As recently as the interview with the probation officer who compiled the pre‑sentence report, notwithstanding having admitted to the court the offences the subject of this appeal, he nevertheless denied to that officer that he was involved in sexually assaulting the complainant.  The psychologist’s conclusion in the report of 27th October 1972 –

I do not intend to take your Honours to the details of those as they are reproduced here, I will go to some of the details in a moment to indicate that the order was justified.  But he then refers to the report of Professor German, and although it is quite correct that Professor German only saw him for a few minutes, but he relied upon the history that had been provided to him in expressing the views that he did, and it does seem, with respect, that they were not at odds with the views subsequently expressed by Dr Booth who in fact says in his report that he had seen Mr Yates on – I think it was three other occasions than the one that resulted in the report, so Justice Brinsden then goes on to refer to the report of Dr Booth and specifically at the bottom of page 196, if I can direct your Honours’ attention, he says:

In his view the applicant’s anti‑social personality is associated with, but not caused by, his presumed minimal brain damage.  He did not think there was any treatment for the anti‑social personality and the history of the applicant with the Department for the Intellectually Handicapped had not been encouraging.

He then refers to the report of the clinical psychologist, Ms McHugh, and the conclusion that she drew, and this is at about line 20 on 197:

that the applicant is unsuitable for a sentence disposition that includes community supervision unless he could be persuaded to co‑operate and complete adaptive functioning programmes.  She felt he would be at risk of re‑offending on his release into the community.

Then to the comment of the probation officer in the presentence report, that:

he is unable to benefit in a realistic manner from any form of community supervision in the near future.

His Honour then concludes at the bottom of page 197, at 42:

Of the characteristics of a prisoner to which s. 662 directs the court’s attention there are three which seem to be relevant in this case, the character and mental condition of the applicant as well as the nature of the offence. I have already described the offence which was committed against a member of that section of the community very vulnerable to criminal acts of this type. The offences were committed in a public place which one would ordinarily expect to be quite safe for a child to go unaccompanied.

So he has referred to the nature of the offence and he has then referred to the character and mental condition to which I referred earlier as the conclusions on which his Honour relied.  The point of that survey is to make clear, with all due respect, that his Honour did not fall into error by taking into account an irrelevant consideration, namely the benefit that might be conferred on Mr Yates by a shorter period of parole, but also to show that his Honour took into account all of the materials that were before the sentencing judge and on the basis of those materials, applying the correct principles came to the conclusion with which Justice Smith agreed that the discretion at first instance had not miscarried because the order was justified on the basis of the material before the sentencing judge.

What this Court is being asked to do, with all due respect, is to find not that the Court erred in principle – once one puts aside the alleged error of taking into account an irrelevant consideration – what this Court is being asked to do is not to conclude that the Court erred in principle because his Honour applied the correct principles and his Honour had regard to material of the kind that would be relevant to the application of those principles, this Court is being asked to simply substitute its own view about the adequacy of the information before the Court in finding that there was a basis to conclude that Mr Yates was a constant danger to the community, or as the language was at that point in time, a danger to the community.

The constant, we suggest, does not really add anything that was introduced in Chester but it does not add anything because, essentially, in finding that the person is a danger, the Court was being asked at that point in time to make the determination of the person’s risk to the community at that point in time – that is, when he is being sentenced – which, in turn, may say something about whether that person would reoffend in a violent way at the time they came to be released.

Importantly, it did not specifically ask the Court – the provisions of the section itself, neither those provisions nor what had been said in Tunaj or what was said in Chester later, required the Court to prognosticate about the level of danger that may exist at the end of the sentence that the offender would otherwise serve.  It may seem a subtle distinction, but I mention it because to the extent that one might have regard to decisions under section 98 of the Sentencing Act 1995, McGarry, for instance, and what was said there about the level of information that is required before an order could be made under section 98, those provisions are very specific in requiring attention to be given to particular criteria and a determination being made of the risk, or the danger, that the offender would pose at the time of release.

The Courts were always troubled by the ability to make that sort of prediction.  Prognostication was referred to and it has accounted – as we talk about this in our written submission – it has accounted for the approach that is now taken in relation to sexual offences that, generally, that question will be dealt with at the end – approaching the end of a prisoner’s sentence by an application being made under the Dangerous Sexual Offenders Act.

That would have been the ideal approach in relation to Mr Yates if the Act had application at this point in time.  Under that Act, the Court would be asked to make a determination of his risk of sexual offending, danger to the community, at the point in time when he is about to be released, and the Court would have the capacity to either order continued detention or to put him on a supervision order.

It would require the same sort of considerations that apply in determining whether he should be released on parole, that is, does he have a place where he can be accommodated, where he can be supervised, what conditions can be placed on him to prevent him from being at risk of reoffending and so on, but the Act, the Dangerous Sexual Offenders Act, does not have application to him at this point in time.  It would only be triggered if there was a prospect that he would be released in the next six months. 

But I make the point that the law has changed.  We are in a very different legal environment now in terms of the way in which offenders such as Mr Yates would be dealt with and whether an application would be made in relation to him under section 98 of the Sentencing Act.  That, in our respectful submission, is a relevant consideration to the question of whether special leave should be granted because, in our submission, there is no question of principle that would be of particular relevance to the application of the administration of justice now. 

BELL J:   What about the administration of justice in the particular case?

MR FIANNACA:   Yes, well that is the point, your Honour.  It would need to be a matter of this Court being satisfied that the interests of the administration of justice in this particular case justify its intervention.  We have referred to the language that was used in Radenkovic v The Queen (1990) 170 CLR 623 which referred to the result being unjust and anomalous. That begs the question of whether it is anomalous and that is why we argue, with respect, that it is proper for this Court to have regard to the information now available about the assessments that have been made of Mr Yates in the interim.

Your Honours, before I come to that and perhaps formally make the application, can I say that the information that was before the court did contain at least one – that is before the court at first instance, did contain at least one report that spoke about matters that were relevant to a determination that he posed a danger.  All of the reports contained information from which one could reason, as did Justice Brinsden, that he posed a danger, because as soon as one talks about intellectual impairment and how – and the way in which he had reacted to treatment, the way he had reacted to programs, those sorts of things, once one starts to talk about those sorts of aspects of his antecedents, that has to say something about whether, in fact, he has the capacity to respond to treatment and whether he would continue to be a danger of offending in the way that he did in this particular instance.

But the report of the psychologist, Mr Robertson, of 28 October 1982, although some time before this offence or these offences were committed, says this at the very end, and this is on page 116 of the appeal book around line 35:

Greg rarely acknowledges the consequences of his impulsive actions and this has resulted in him having contact with the Police in the community and privileges withdrawn in the hostel and workshop settings.  These techniques plus participation in several Sex Education Programmes and individual counselling sessions have failed to modify Greg’s behaviour.

Can I say it immediately is apparent, and there is talk about it in the preceding pages, including the information from Mr and Mrs Yates about his association with young children since 1976, but clearly he had been determined by people who had had a long association with him, in fact since 1963 when he was only three years of age – and this is a report from a psychologist with the division for the intellectually handicapped - it had been determined that he required sex education programmes and individual counselling and had done so on more than one occasion.  Mr Robertson then goes on to say:

This suggests that more aversive procedures may have to be utilised to teach Greg the consequences of his illegal sexual behaviour in the community.

This is 1982.  In 1982 it was being identified that there were concerns about his sexual behaviour, illegal sexual behaviour, in the community, and the possible need for more aversive procedures, that is, more aversive than providing him with programmes.  This offence is then committed in August of 1986, so clearly what had happened in the interim, whatever measures might have been taken, did not prevent the commission of this particular offence. 

With that sort of history, at least between 1982, before 1982 and then leading to the commission of this offence in 1986, it is our respectful submission that the court did have information sufficient to enable it to conclude that Mr Yates posed a danger to the community and a danger of committing not only sexual offences, but obviously a violent sexual offence as he committed on this particular child.

What were the alternatives?  Counsel for Mr Yates indicated – this is at paragraph 7 of our outline of oral argument – that he did not consider that Mr Yates would survive a period on parole.  If I can take your Honours to appeal book pages 155 to 157.  Mr Sutherland at around line 40 says:

He is a risk to himself on parole.  Any period of parole is a danger to him.

The Chief Justice further down the page says:

He would never make it, on his present form, would he?

MR SUTHERLAND:   No, he would not.  I agree with the comments in the pre‑sentence report so far as that is concerned.

BELL J:   The reference to his record and the improbability of him surviving a period on parole was with respect to a record of fairly frequent minor offending.  What is the relevance of that to the conclusion necessary in order to support an order that he be detained possibly for the balance of his life?

MR FIANNACA:   Well, your Honour, the reason I am referring to this is to say that his counsel as well as those who had provided the reports had indicated that he was not suitable for supervision within the community.  His counsel considered that he would not survive a period of parole.

HAYNE J:   What he meant by that is perfectly apparent from application book 158, line 37 or 38, his propensity to offend in a minor sort of way.

MR FIANNACA:   Yes, and earlier than that, your Honour, at line 20 approximately, he says that in his submission the only fair sentence is a finite term.  So what counsel for Mr Yates was putting at that time was that the only appropriate sentence was a finite term, not one that would have a parole element to it.  Now, that could simply not be right, that a man in Mr Yates’ situation could be released at the conclusion of a finite term without any supervision in the community.

BELL J: At the time in the Court of Criminal Appeal an aspect of the sentence that was imposed was under challenge, as was the making of the section 662 order. Is that so?

MR FIANNACA:   Yes.

BELL J:   What do we gain from learning that counsel advanced a submission respecting the sentence to be imposed that it is suggested was not a very good submission?  What does this tell us that is useful to the determination of the issue?

MR FIANNACA:   Well, it is not a question of whether it was a good submission, with respect, your Honour.  It was a question of what were the alternatives realistically before the court below.

BELL J: One is not looking at alternatives; one is looking at sentencing a person according to law for the offence for which they have been convicted and, if appropriate, making an order under section 662 in the exceptional circumstances and subject to the formation of the judgment that it is necessary to arrive at.

MR FIANNACA: Yes, and those exceptional circumstances were found to exist and we have gone to those parts of the judgment of Justice Brinsden and advised your Honours of at least where the starting point is so far as that assessment is concerned in the materials before the sentencing judge. But even if one puts aside the question of what were the viable alternatives, the point is that it was recognised it seems by everyone that he did pose a danger. The question is whether it was a danger of a sufficient kind to justify the imposition of an order under section 662.

BELL J:   When you say it was recognised by everyone, what ‑ ‑ ‑

MR FIANNACA:   Well, everyone in terms of the judges at least, because even the Chief Justice in his discussion with counsel for the Crown at that time, and I have referred to this earlier, pointed out – this is at page 171 at about line 32 or 33 – that:

The number of offences might be an unreliable, or it may be reliable in a positive way - - but it may be wrong to say you cannot reach the necessary conclusion without it.

. . . 

BURT CJ:    Because really what you are saying is, if you are talking in rape:  “You will have to rape a number of other people before we will apply the section to you”, which would be absurd, would it not?

BELL J:   The Chief Justice’s conclusion at application book 188, line 20, was that:

there is nothing in his record which could justify a conclusion that he has “shown himself to be a danger to the public”.

For my own part, I do not read that as a conclusion, as it were, confined to the consideration of the record because his Honour in the preceding sentence has adhered to the opinion that the circumstances outlined as necessary in Tunaj were not present in this case.

MR FIANNACA:   Yes.

BELL J:   So I think to take us to passages in the discussion to suggest that there was, as it were, agreement on the issue that this man posed a danger to the community ‑ ‑ ‑

CRENNAN J:   It involves a conflation, I think, of the idea that a danger of reoffending is conflated with the notion of a danger to the community in this submission that you have been putting.  I was trying to get you before to focus on the distinction between the two.  It may be true that there were various expressions of opinion that there was a possibility, or a probability, of reoffending but that does not take you anywhere unless you direct your mind to reoffending in what respect.

MR FIANNACA:   Yes.  But to suggest that – and can I say, your Honour, that I have endeavoured and, perhaps, I should be understood when we talk about the conclusion having been drawn by the judge at first instance and by the majority in the Court of Criminal Appeal that Mr Yates was a danger to the community, we are talking about a conclusion that he was a danger to the community of offending in a violent way, as he did on this occasion.

CRENNAN J:   But where is the mention of violence?  I appreciate the nature of the two convictions, but was there anything in the antecedents that had anything to do with violence.

MR FIANNACA:   But see your Honour is suggesting, with respect, in that question that there needs to be something in the antecedents and in the record which is what the Chief Justice himself recognised could not be right – that it could not be the case that you would have to have had prior offences to the one for which he is being dealt with to conclude that he poses a danger of violent offending.  The offence for which he was convicted, itself, showed that he was a danger of behaving in that way.  He had behaved in that way on this occasion.

CRENNAN J:   On this occasion.

MR FIANNACA: So as I say, the Chief Justice, in the course of argument, accepted that a first timer may yet be regarded as a danger and invoke the application of section 662. When his Honour then came to give his reasons, it does seem to us, with respect, that his Honour’s focus was then on the record and whilst we are not here to argue the correctness of the dissenting judges’ conclusions, or his reasoning, the fact is his Honour, with respect, made no reference to what relevance the nature of the offence itself or in combination with Mr Yates’ intellectual status and his antisocial personality – all matters referred to by Justice Brinsden – his Honour made no reference to what relevance they had in his conclusion that he did not pose a danger to the public.

So, with respect, it is not helpful, with the greatest of respect obviously to the reasoning of his Honour the Chief Justice, to be relying on the conclusion that his Honour arrived at in determining whether the conclusion arrived by Justice Brinsden or Justice Smith was correct or not.

BELL J:   Looking at the conclusion arrived at by those two justices who formed the majority, the question raised by Justice Crennan remains apposite.  One is looking for support in the material and in the reasons for a conclusion of relevant dangerousness as distinct from likelihood of reoffending or presenting difficulties of the kind that commonly enough people with an intellectual handicap do – difficulties of the sort canvassed in Mr Robertson’s 1982 report.

MR FIANNACA:   Yes, and, your Honour, it is absolutely clear, in our respectful submission, that what his Honour Justice Brinsden was referring to, with which Justice Smith agreed, was danger in the relevant sense, that is violent sexual offending and can I say the reason for that is because his Honour says – and I have already read from this and I do not want to be re‑reading things but his Honour says at line 10 on page 198:

Unfortunately he is not prepared to admit the commission of these offences thus inhibiting the opportunity of development of insight into the factors that contribute to the commission of them -

this kind of offending that his Honour was concerned with.  When his Honour then goes on to say at the end of that paragraph -

At present however and for the foreseeable future he does represent a danger to the community particularly the young children within it -

that has to be seen, in our respectful submission, as relating back to what he has just said, what kind of offences that he committed against children – well, this particular offence against the child – of a sexual nature, no suggestion that his Honour is referring there to offences of dishonesty, of offences of exposing himself, offences of loitering or anything of that kind.  The conclusion his Honour has arrived at relates specifically to this kind of offending, this kind of danger.  I do not think I can really clarify that any more than that.

Your Honours, this case is different to cases such as Chester and Gooch.  We consider, perhaps, that Gooch is the closest.  Your Honours may recall that was one where a young man under the age of 18 committed a sexual offence upon a woman and her child in a public place, in a public park.  The circumstances there were, again, very unfortunate and perhaps very tragic in that he had been someone who had had very high intellectual ability and been a high performer at school then suffered a brain injury as a result of a motor vehicle accident and after that had problems controlling his behaviour.

There was some impact on his intellect but it seems that he continued to have a reasonable, perhaps even higher than that, degree of intellectual ability.  The circumstances of that case were very different.  It was just that that was one case where the court came to the view that there was not sufficient evidence to conclude that he was a constant danger to the community.

He was a lot more youthful than Mr Yates.  The report that had been relied on in that case is suggesting that he was a danger – in fact suggested there was a glimmer of hope that he would, because of his intellectual capacity, be able to reform and in that way his danger to the community be abated.

We respectfully submit that to the extent that reference has been made in the written submissions to other cases, including Chester, which was not a sexual or violent offending case in any event, those cases can be distinguished.  Cases that come under section 98, as I have previously submitted, really are not particularly helpful because of the very different language of that provision and, in any event, cases such as McGarry, which talks about the degree of investigation required, information required, came well after Mr Yates’ case.  Ciciora, in our submission ‑ ‑ ‑

HAYNE J:   Just before you deal with Ciciora, do you accept the statement of principle in Gooch by Chief Justice Malcolm, 43 A Crim R 382 at 385, where at about point 6 or 7, his Honour says, having referred to Veen, Walden and Veen (No 2) –

In the light of this background of settled fundamental legal principle –

et cetera.  Do you accept that the principle is accurately stated there?

MR FIANNACA:   Sorry, can your Honour just repeat the page number?

HAYNE J:   It is at 385 of the Australian Criminal Report, at about point 6 beneath the three lines of citations of Veen, Hensler, et cetera.

MR FIANNACA:   Yes, quite.  Yes, your Honour, of course.

HAYNE J:   Yes.

MR FIANNACA:   That was the way in which the Court in Chester considered that the provision should be read and therefore did not have application to those cases that would come under section 661 concerning habitual criminals.  The focus there was on physical harm, and that is what we say was present here, the danger, the risk, the physical harm in the offending that in fact occurred with this child.

So far as the circumstances of the offence are concerned, your Honours will have noted that you had the evidence of the child as to how it happened, and that there was violence inflicted upon her after the sexual penetration, but you also have the evidence of Mr Yates himself at page 108 when his counsel perhaps was taken rather by surprise as to the admissions that were then being made that he waited outside – this is at lines 40 onwards – that he waited outside and then walked in. 

So he watched the girl go into the toilets, waited and then went in, peered through the crack in the door, and then as she was about to come out, it seems, pushed the door in and committed the offence.  So it was not something that happened spontaneously or opportunistically in the sense that he just came upon the girl.  He in fact targeted this child, having seen her go into the toilets.  That goes to the seriousness of the offence.  It goes to why the nature of the offence itself was a basis upon which the court was entitled to conclude ‑ ‑ ‑

BELL J:   All considerations relevant to the imposition of a sentence for the offence.

MR FIANNACA: And to a consideration of whether he was a danger for the purposes of section 662. Obviously, your Honour, whether – if an order had not been made under section 662, one might have expected a higher sentence finite term because of the seriousness of the offence. Your Honours, I think so far as the balance of my submissions are concerned I would wish to make the application to rely on the new material, the additional material.

HAYNE J:   For what purpose?  For the purpose of the decision whether to grant leave?

MR FIANNACA:   Yes.

HAYNE J:   How do they bear upon that issue?

MR FIANNACA:   Because of the question, the explanation that has been given in terms of the appeal being out of time.  It is our respectful submission that this Court ought now to have regard to all of the circumstances that relate to Mr Yates’ present situation in determining whether there has been demonstrated to be a miscarriage of justice.  If, in fact, the order that was made by the judge at first instance and by the Court of Criminal Appeal has been shown to have been justified in the sense that Mr Yates has, over the years that he has been incarcerated, demonstrated that he is a danger to the community ‑ ‑ ‑

FRENCH CJ:   I am sorry, are you asking us on the basis of this material to make a judgment as to whether Mr Yates is a danger to the community?

MR FIANNACA:   Yes, because essentially, your Honour, what we say is that if it is correct that there was no error in principle ‑ in the application of principle, but what this Court has been asked to do is to find that the interests of the administration of justice justify its intervention or the grant of special leave in allowing the appeal, it is necessary to show that the decision was unjust, was anomalous, that it has resulted in a miscarriage of justice.

FRENCH CJ:   What are you asking us then to do?  To take into account in forming that view the opinion of the Parole Board or the materials which it recites in its statutory reports?

MR FIANNACA:   The latter.

HAYNE J:   How does it bear on the – there are two hypotheses.  One, we conclude in favour of the applicant that error of principle is demonstrated in what the Full Court did.  If that is so, how does the later material bear upon whether we should grant leave?  The other hypothesis is we conclude contrary to the submission of the applicant that no error of principle is shown in what the Full Court did.  If that is so, I would have thought the application for leave failed.  So, the only relevant case is where we have first concluded that there is demonstrated error in what the Full Court did.  If that is so, how does this material bear on it – bear on whether leave should go?

MR FIANNACA:   Well, I think it depends on what is meant by “error of principle” because if what is meant by that in this instance is error of the specific kind that is alleged the court made by taking into account an irrelevant consideration, that is one kind of error.  If it is concluded – and we would be arguing in relation to that that if the decision in any event was a proper exercise of discretion then that error would not justify the grant of special leave. 

If the error of principle is said to be that the court below in fact did not apply the principles that had been enunciated in Tunaj, that again is an error of law, but if the error of principle is said to be that the court properly applied those principles, but on the material before it the conclusion it reached that the discretion of the judge at first instance was properly exercised is wrong, in one sense that requires a judgment on the part of this Court in forming its view that the exercise of the discretion was wrong, then it is our submission that the only basis upon which that succeeds is because Mr Yates was not in fact a danger to the community.

HAYNE J: No, it might succeed, and you have to grapple with this case, at least for my purposes. If this Court were to conclude that it was not open to the Full Court on the material available to it to conclude that Mr Yates was a danger in the sense required by section 662, how do later events, reports, opinions, ponderings bear at all upon whether leave should go?

MR FIANNACA:   Because the appeal is being allowed in the circumstances in the interest of the administration of justice particular to this case.  That being so, the question of special leave, where there is no more general principle of the application of the law that is being asked to be determined after 26 years, so after the delay that, in our respectful submission, can only be described as gross, although, as we say, not on the basis that any fault is being attributed ‑ ‑ ‑

FRENCH CJ:   Well, long is enough.

MR FIANNACA:   Long is enough.  When the Court is being asked to intervene after that period of time and the consequences that that has in terms of the administration of justice that has occurred to date, this Court ought to be satisfied that in fact there was a miscarriage of justice in the sense not only that the court below was wrong at law, but that the decision was wrong in fact. 

That is our submission and if it stands or falls on that basis that because of the delay this Court needs to be satisfied of a substantial miscarriage and that that must require the Court to consider whether in fact the court was wrong in fact, if the court was in fact right that Mr Yates was a danger – and that has been shown to be the case over a period of time by the way in which he has interacted with medical professionals, with psychiatrists, with psychologists – the attitudes he has expressed about sexual activity with children, with women, with lack of empathy in relation to the victims of sexual offending – all that sort of material is clearly relevant to the question of whether he constitutes a danger to the community.

If that material demonstrates that, in fact, he does continue to be a danger to the community, then the decision that was made at first instance and by the Court of Criminal Appeal was, in fact, not wrong, in fact, that is, in determining that he was a danger.  That is the basis upon which we submit this Court is entitled to have regard to it.  But the basis of principle is that it is an appeal well out of time, the impact of which, in terms of a decision allowing the appeal to grant him a special leave, would have implications, if you like, for the administration of justice that has occurred to date.

FRENCH CJ:   Bear with me.

MR FIANNACA:   Certainly.

FRENCH CJ:   Your application is declined.

MR FIANNACA:   May it please, your Honour.  Your Honour, in that case, those are our submissions and we otherwise rely on our written submissions.

FRENCH CJ:   Thank you, Mr Fiannaca.  Yes, Ms Farley.

HAYNE J:   Forgive me, Mr Fiannaca.  Forgive me, Ms Farley.  There is one question, Mr Fiannaca, that I would ask.  If this Court were to grant special leave and if this Court were to allow the appeal, do you say that the Community Protection (Offender Reporting) Act 2004 (WA) would apply to this man?

MR FIANNACA:   Yes, your Honour.

HAYNE J:   Would that statute permit the making of orders precluding his contact with young persons?  It would seem to me it would.  See, for example, section 90.

MR FIANNACA:   Yes – specified kinds of persons.

HAYNE J:   It may be – I do not ask you to express a concluded view on this or even make a submission about it – but a possible point of view may be that under section 90 that may reach so far as to permit making of orders regulating, at least to some extent, where he resided.

MR FIANNACA:   In an indirect way.  I think that would have to be correct, your Honour, because it can prohibit him being in specified locations, or kinds of locations, which would have some implication for where he could reside.  We accept that.

HAYNE J:   Such applications can be made promptly?

MR FIANNACA:   I am sure that steps would be taken for them to be made promptly if the circumstances arose.  I cannot, however, assist your Honour at this point in time with the practicalities of the making of such applications.  It is not a matter that the Director of Public Prosecutions is involved.  It is a matter that the Commissioner of Police undertakes.

FRENCH CJ:   It would be an existing controlled reportable offender, is that right, within the meaning of the Act?

MR FIANNACA:   Yes.  Your Honour, my interpretation of the Act is that he would under the provision that my learned friend referred to.  It does take a little bit of navigating but it appears to apply to a person who was sentenced for an offence of a kind like those that are stated in the schedule

if it was before the commencement of the Act, and this clearly is, and in the schedule ‑ ‑ ‑

HAYNE J:   For offences against children?

MR FIANNACA:   Yes.

HAYNE J:   It is the offence against children and penetration of a child.

MR FIANNACA:   Yes, sexual offences, that is right.  So my determination ‑ ‑ ‑

HAYNE J:   He would come within the purview of the Act because he is still undergoing sentence?

MR FIANNACA:   That is right and that ‑ ‑ ‑

HAYNE J:   At the time of commencement of the Act, that is.

MR FIANNACA:   At the time of commencement of the Act, that is right.  That is why I said at the very outset that we accepted it applies.  What it does not do is provide any mechanism for actual support or supervision of the person.

FRENCH CJ:   Yes, thank you very much.  Yes, Ms Farley.

MS FARLEY:   If it please, your Honours, if I could address you shortly on that point.  My understanding – and like my learned friend I have not had a lot to do with these orders – is that they can be quite quickly brought forward by the Commissioner and the conduct that may be the subject of the orders pursuant to section 93 of the Act is incredibly wide‑ranging - in fact, my instructing solicitor has just informed me she has a client who is prohibited from using trains within the metropolitan area in the State of Western Australia at particular times of day - in relation to the matter.  So the controls that are available are quite considerable.

My learned friend, early in his submissions, referred to the involvement of the Public Advocate also, your Honours.  He referred to it in a discussion as to whether the application for extension of time should be granted.  I have - and I have not provided it to your Honours, but I can hand up – I only have one copy of it - the order that was made appointing the Public Advocate.  That order was not made until August last year so it has not been an ongoing involvement with the Public Advocate.  If it is of assistance to your Honour I can tender my copy to see the scope of that and ‑ ‑ ‑

FRENCH CJ:   This is just for the point of - the date of the appointment?

MS FARLEY:   The date of the appointment is 1 August 2012.

FRENCH CJ:   I do not think we will be assisted by that.

MS FARLEY: Obviously your Honours will be aware of the position of the Public Advocate, however, and that would assist if there was to be a release of Mr Yates in the advocacy for his accommodation, support, care in the future. That is the only reason I mention it. I wish simply to make two comments. One is in relation to any concept that may have been held by either the learned sentencing judge or the members of the Court of Appeal that an order pursuant to section 662 of the Criminal Code could be in some way of benefit to an accused person or could in any way be used in a benign form, and that is to draw your Honours’ attention to section 18 of the Criminal Code as it was in 1986, which – my copy is falling apart. Section 18:

The punishments which may be inflicted under this Code are as follows:‑

Death;

Strict security life imprisonment;

Imprisonment with hard labour;

Imprisonment without hard labour;

Detention in strict custody until the Governor’s pleasure is known and, thereafter, in safe custody in such place or places as he may, from time to time, direct;

Whipping;

Fine -

Those were the penalties available and specifically -

Detention during the Governor’s pleasure -

which is what section 662 provides for and indeterminate sentence is described therein as a punishment. If I could just summarise the applicant’s position very shortly and draw your Honours’ attention to the comments of the Chief Justice in relation to this matter. It is very pertinent to the applicant’s application, in my submission, what his Honour says at

page 188 when talking about - and what could only be brought out of the reports to which your Honours have been referred to by both myself and my learned friend about the applicant’s deviant conduct which is necessarily related to his intellectual disability.  At line 38 his Honour says:

On the facts it would seem that the applicant’s “deviant behaviour” is caused by factors including brain damage which are permanent.  They are beyond the reach of treatment.  Hence when the applicant has served his finite sentence less remissions his condition is likely then to be as it is now and if that condition now justifies detention to protect the public it will continue to justify detention for evermore.  And with respect, that cannot be right.

Yet it appears on the basis of the finding initially that he was a danger to the community, we say incorrectly and on no basis, and that that has continued by the judgment in the Court of Appeal and that that continues to be the approach taken by the Prisoners Review Board in 2013, that will be the case.  Unless there is anything further I can specifically assist you with, those are my submissions, your Honours.

FRENCH CJ:   Thank you, Ms Farley.  The Court will reserve its decision.  The Court adjourns until 9.30 am Friday in Canberra and 9.30 am Friday in Sydney.

AT 12.14 PM THE MATTER WAS ADJOURNED