Supreme Court of WA|2011-05-19|Before: Jenkins J, Kechnie J

DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- McGARRY [No 3] [2011] WASC 134 (19 May 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- McGARRY [No 3] [2011] WASC 134

MATTER : Sections 8, 14, and 17(1) of the Dangerous Sexual Offenders Act 2006

Dangerous sexual offender - Calculation of first annual review - Turns on own facts

DPP v McGarry (No 2) [2009] WASC 287

DPP v McGarry [2009] WASC 226

1 McKECHNIE J: Mr McGarry is a dangerous sexual offender. His release on a supervision was short lived and on 24 September 2009 Jenkins J made a continuing detention order that he be detained in custody for an indefinite term for control, care or treatment.

2 On 5 February 2010, Mr McGarry was sentenced to two concurrent terms of 18 months' imprisonment, without eligibility for parole, to expire on 4 August 2011. Mr McGarry says that his detention order should be reviewed on 5 August 2011 or soon after while the DPP asserts that the first possible review date is 6 August 2012. The DPP's construction of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) s 29(2)(a) is correct and the earliest review date is on or after 6 August 2012.

7 November 2008 - DPP files application under the DSO Act.
12 November 2008 - Preliminary hearing; order for final hearing.
12 December 2008 - Order for interim detention: DSO Act s 14(2)(b)(i).
2 January 2009 - Sentence of imprisonment expired.
17 August 2009 - Final hearing; supervision order made: DPP v McGarry [2009] WASC 226. Mr McGarry released from custody to commence supervision order.
25 August 2009 - Mr McGarry arrested. Police refuse bail.
26 August 2009 - Bail refused by magistrate.
16 September 2009 - Mr McGarry charged with two sexual offences.
18 September 2009 - Contravention of supervision order proceedings.
24 September 2009 - Continuing detention order made: DPP v McGarry (No 2) [2009] WASC 287.
5 February 2010 - Mr McGarry sentenced on those offences to 18 months' imprisonment without parole eligibility, the sentence to date from that day.
4 August 2011 - Final day of sentence of imprisonment.

Review - periodic

(1) While a person is subject to a continuing detention order, the DPP must apply to the Supreme Court for the person's detention under the order to be reviewed as specified in subsection (2).

(2) Reviews have to be carried out -

(a) as soon as practicable after the end of a period of 1 year commencing when the person is first in custody on a day on which the person would not have been in custody had the order not been made; ...

3 The issue is when Mr McGarry is 'first in custody on a day on which [he] would not have been in custody had the order not been made'. The submission advanced on Mr McGarry's behalf is that the correct date is 24 September 2010. It is argued that because the term 'custody' is not defined, it has its ordinary meaning of 'imprisonment' as to which see Oxford English Dictionary.

4 It is further submitted that on 24 September 2009, when Jenkins J made the continuing detention order, the applicant was not serving a term of imprisonment and therefore not 'in custody'.

5 I am unable to accept these submissions. There is a distinct difference between 'in custody' and 'imprisonment'. A person may be detained in custody for many purposes. A person who was arrested by police is in lawful custody. A mentally impaired accused may be subject to a custody order. A person to whom bail has been refused is detained in custody. The DSO Act itself provides another example as illustrated in this case. Jenkins J did not sentence Mr McGarry to a term of imprisonment. She ordered him to be detained in custody for various purposes. By contrast, a person who is detained after conviction and sentence is imprisoned under the Criminal Code (WA) and the Sentencing Act 1995 (WA).

6 These examples are sufficient to show that Parliament clearly intended to differentiate between 'custody' and 'imprisonment'.

7 Application of s 29(2)(a) to Mr McGarry's case gives the inevitable result that he is first eligible for review after 5 August 2012. From the moment he was apprehended by police on 25 August 2009 he was 'in custody', first under the Bail Act 1982 (WA), bail having been refused; then from 17 September 2009 under the Bail Act when he was remanded in custody on those charges; and then from 5 February 2010 under the sentence of imprisonment that will expire on 4 August 2011. At no stage during the period from 25 August 2009 has he been in custody solely on any provision under the DSO Act or the order of Jenkins J on 24 September 2009. While that order commenced on that date and continues to run it is not the only reason for Mr McGarry's detention in custody and will not become the sole reason until the present sentence of imprisonment expires.

8 The first annual review must be on a date as soon as practicable after 4 August 2012.

Sexual Offenders Act 2006

DPP v McGarry

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Judgment (20 paragraphs)

DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- McGARRY [No 3] [2011] WASC 134 (19 May 2011)

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