GIBBS C.J., MURPHY, WILSON, BRENNAN and DAWSON JJ. The Court, having carefully considered the submissions of counsel, is of the opinion that there was no substantial miscarriage of justice in the conviction of the applicant. Special leave to appeal against conviction is therefore refused.

[4]

2. In relation to applications for special leave to appeal against sentence, the Court has consistently followed the practice of refusing to grant special leave to appeal merely on the ground that the sentence appears excessive. It was recognized by the Court of Criminal Appeal in the present case that the sentence of nine years imprisonment was a high one and this Court concurs in that view. That in itself, however, is no ground for granting special leave to appeal.

[5]

3. However, a question of principle does arise in relation to the refusal of the learned trial judge to fix a minimum period. The effect of s.37(1) and (2) of the Offenders Probation and Parole Act (W.A.), as amended, so far as relevant, is that where a person is convicted and sentenced to a term of imprisonment of not less than twelve months, the court shall fix a minimum term during which the convicted person is not eligible to be released on parole, unless it considers "that the nature of the offence and the antecedents of the convicted person render the fixing of a minimum term inappropriate." The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigtion of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence: see Power v. The Queen [1974] HCA 26; (1974) 131 CLR 623, at p 629.

[6]

4. The circumstances of the present offence, although serious, were not such as in themselves to warrant the judge to decline to fix a minimum period. Nor did the antecedents of the offender appear to justify the course taken. His record of convictions does not include any previous sexual offences. The very severity of the maximum sentence made it the more appropriate to impose a minimum sentence. The Court considers that in all the circumstances the policy of the statute required the judge to fix a minimum sentence.

[7]

5. For these reasons the Court grants special leave to appeal against sentence. The appeal is allowed and the judgment of the Court of Criminal Appeal is varied by ordering that a minimum term of four and a half years be fixed in respect of this offence.

[8]

Special leave to appeal against conviction refused.

[9]

Special leave to appeal against sentence granted.

[10]

Order that the judgment of the Court of Criminal Appeal

[11]

be varied to order that a minimum term of four and a half years be fixed.

Parties

Applicant/Plaintiff:

# Deakin

Respondent/Defendant:

R \[1984\] HCA 31;

Cases Cited (2)

(1984) 58 ALJR 367

(1974) 131 CLR 623