Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for continuing detention order - Sentence of imprisonment already served - Sentence comprising imprisonment for serious sexual offence and other offences - Whether jurisdiction exists to make application under the Act

Dangerous Sexual Offenders Act 2006 (WA) s 8

1 MURRAY J: This is an application by the Director of Public Prosecutions (WA) on behalf of the State of Western Australia made under s 8 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). Section 8(1) authorises the DPP to apply for orders under s 14 and s 17(1) of the Act, 'in relation to a person (the "offender") who is under sentence of imprisonment wholly or in part for a serious sexual offence'.

2 Upon the preliminary hearing of the application under s 14 of the DSO Act, the respondent raised a jurisdictional question upon which I then heard argument. I reserved my decision in relation to the point raised. I then thought that I would deal with that point separately and give my reasons. As things turned out, I have not done that. I shall give them now.

3 At the preliminary hearing the evidence was upon affidavit. There was an affidavit by Mr Scutt, a solicitor with the DPP. It set out the respondent's criminal history in WA and SA. It also provided relevant information as to offending by the respondent, convictions and sentences imposed in WA. An affidavit sworn by a Ms Caple, a forensic psychologist employed in the Department of Corrective Services, was also tendered in evidence. Annexed to the affidavit was a report she made dated 22 November 2007 which is described as a sex offender risk update report. I had regard to both affidavits on the preliminary hearing.

4 On 5 June, I announced my conclusion, without reasons, that the court had jurisdiction to hear the application brought under s 8. I also gave brief ex tempore reasons for my conclusion on the preliminary hearing, within the terms of s 14, that the court might ultimately find that the respondent is a serious danger to the community within the meaning of the DSO Act s 7(1). Having made that finding, I sent the matter on to a final hearing, making the order required by s 14(2)(a) for the preparation of reports by two named psychiatrists, Drs Tanney and Wojnarowska.

5 It was clear that before the final hearing of the application could be conducted, the respondent would complete the service of his current term of imprisonment, would be discharged therefrom and would be entitled to be released. That was to occur on 12 July 2008.

6 I declined to make the order under s 14(2)(b) for the continuing detention of the respondent in custody until the application was finally decided. By a process which was then initiated by order of the court and completed on 9 July, I approved the release of the respondent upon his execution of an undertaking in terms settled by the court. That occurred, and pursuant to that undertaking, the applicant was permitted to be at large in the community, subject to a series of controlling conditions, until he was obliged to surrender himself for the final hearing of the application on 29 July.

7 In March 1998, the respondent was indicted in the District Court for four offences which were related, but constituted two groups of offences. It was alleged that on 16 January 1998 he committed an offence of burglary in an aggravated form and then, when in the house, he sexually assaulted the female occupant after threatening to kill her. Later, and by now on 17 January 1998, he committed another offence of aggravated burglary upon another house. On this occasion he assaulted the female occupant of the house so as to cause her bodily harm. It is unnecessary to deal with the facts in more detail.

8 On 16 June 1998, the respondent was sentenced by Blaxell DCJ (as his Honour then was) to four terms of imprisonment, backdated to 19 January 1998. For each of the burglary offences, aggravated in effect by the circumstance of home invasion at night, the respondent was sentenced to 4 years imprisonment. For the aggravated sexual assault, he was sentenced to 8 years imprisonment. For the assault occasioning bodily harm, he was sentenced to 3 years imprisonment.

9 The sentences for the first burglary and the related sexual assault offence were ordered to be served concurrently. The sentences for the second group of offences were also ordered to be served concurrently with each other but cumulatively upon the term resulting from the first two sentences passed. The result was an aggregate term of 12 years imprisonment, as I have said, backdated to 19 January 1998. Eligibility for parole was refused.

10 In addition, the respondent was sentenced to indefinite imprisonment under the Sentencing Act 1995 (WA) s 98, on the ground that his Honour declared himself to be satisfied that when he would ultimately be released from custody after serving the aggregate term of imprisonment imposed (ie under the Sentencing Act as it was then framed after serving a term of 8 years), the respondent would be a danger to society in respect of the commission of further indictable offences.

11 The respondent appealed against sentence and on 6 April 2000, the Court of Criminal Appeal (Pidgeon, Wallwork and Murray JJ) quashed the order for indefinite imprisonment: Narrier v The Queen [2000] WASCA 86; (2000) 111 A Crim R 405.

12 While in prison serving the sentences to which I have referred, on Christmas Day 1998 in Casuarina Prison, the respondent committed a series of further offences for which he was indicted in the District Court. He was charged with 16 offences, three of unlawfully damaging property in the prison and a series of offences against prison officers. There were four offences of threatening to kill, injure or harm officers and nine offences of assaulting officers while performing functions of their office. None of the assaults were sexual offences.

13 The respondent was convicted after pleading guilty to all of those offences. On 28 April 2000, he was sentenced by Hammond CJDC to an aggregate term of 3 years imprisonment. Each of the nine assault offences attracted a term of 2 years imprisonment. For each of the unlawful damage offences and for each of the offences of threats to kill, injure or harm, the respondent was sentenced to a term of imprisonment for 1 year. The 2-year terms were ordered to be served concurrently with each other, as were the 1-year terms, but the 2-year terms were ordered to be served cumulatively upon the 1-year terms, making an aggregate term of 3 years imprisonment. That aggregate term was ordered to be served cumulatively upon the sentences currently being served, and again eligibility for parole was denied.

14 The effect of that under the then applicable provisions of the Sentencing Act was to add a further 2 years to be served of this additional term cumulatively upon the previously imposed sentences, an aggregate effective term of 10 years dating from 19 January 1998. The July release date results from punishment for prison offences by way of loss of remission imposed on the respondent during the service of these terms.

15 Under the Sentence Administration Act 2003 (WA) s 7(2)(a), the respondent was to serve the fixed terms imposed without parole eligibility, 'according to whether they are concurrent, partly concurrent or cumulative with one another'. That was the position also under the former Sentencing Administration Act applicable at the time the sentences were passed. The respondent would therefore commence to serve the terms imposed on 28 April 2000 upon the expiry of the terms imposed on 16 June 1998.

16 Under s 95(1) of the Sentencing Act as it was when these sentences were passed, a prisoner serving a fixed term which is not a parole term, 'is discharged from that sentence when he or she has served two-thirds of the term'. The reference in that section to a fixed term includes, under s 85(2), an aggregate of two or more fixed terms imposed on the one occasion. Of course, on serving the first aggregate term the respondent was not entitled to be released from prison, a separate concept under the Sentencing Act and the Sentence Administration Act, but he was discharged from the sentences which comprised the aggregate term.

17 The sentencing structure to which I have referred was changed by amendments to the Sentencing Act made by the Sentencing Legislation Amendment and Repeal Act 2003 (WA) which took effect as from 31 August 2003. At that time, for a fixed non-parole term, the one-third remission of which I have been speaking was abolished. However, by the transitional provisions in sch 1 to the amending Act, cl 5(1), the old provisions in relation to the sentence continued to apply to the term and to the release of the offender in respect of such a term.

18 The respondent submits that the term of imprisonment which resulted from the sentences passed on 16 June 1998, having regard to the backdating to 19 January 1998 and subject to any remissions which might have been lost during the service of the term, ended some time around the end of January 2006, whereupon, in accordance with the law, the respondent must have been discharged from that aggregate term and the sentences of which the term was comprised. Thereafter, the respondent argues, he should be regarded as serving the aggregate term imposed upon him cumulatively on 28 April 2000. It was those sentences, the respondent submits, which terminated on 12 July 2008, well over two years later and from which on that date he was discharged leading to his release from prison at that time.

19 As I have observed, under the DSO Act s 8(1), the power to make the application presently before the court applies in respect of a person, 'who is under sentence of imprisonment wholly or in part for a serious sexual offence'. The respondent puts the simple proposition that that could not be said of him when the application was made on 13 May 2008, some two months before the respondent was discharged from the sentence.

20 It is also noteworthy that the application must be made within the last six months of completing service of the sentence. Section 8(3) provides:

If the person under sentence of imprisonment is in custody, the application cannot be filed unless there is a possibility that the person might be released from custody within the period of 6 months after the application is made.

21 I note that when the Dangerous Sexual Offenders Bill was given its second reading speech in the Legislative Assembly: Parliamentary Debates, Legislative Assembly, 9 November 2005, 7005-6, the Hon Attorney General, Mr J A McGinty MLA, said:

The new law will apply to any person under sentence of imprisonment from the time the law comes into effect, regardless of when his offence was committed. If the person under sentence of imprisonment is in custody, the application cannot be made unless there is a possibility that the person might be released from custody within the period of six months after the application is made. This is to ensure that the person is able to take full advantage of any opportunities for rehabilitation offered during the term of imprisonment and orders are not applied for prematurely. Applications can also be made in relation to a person who is under a sentence of imprisonment, not in custody, but in the community.

22 It is of course permissible when construing s 8 of the DSO Act to refer to such material to aid the interpretation of the provision of a written law, whether or not there is ambiguity or obscurity in its provisions: Interpretation Act 1984 (WA) s 19. Further, by s 18 of the Interpretation Act:

a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.

23 The question is a simple one. Was there power to make the application because when it was made the respondent was under sentence of imprisonment wholly or in part for a serious sexual offence? There is no doubt that the only offence fitting the description of a 'serious sexual offence' was the aggravated sexual assault. By s 3 of the DSO Act, the term 'serious sexual offence' is given the meaning which it bears when defined in the Evidence Act 1906 (WA) s 106A. The offence of sexual penetration without consent falls within par (a) of that definition because it is an offence defined in ch XXXI of the Criminal Code (WA) and therefore is an offence which falls within the offences referred to in pt B of sch 7 to the Evidence Act for which the maximum penalty is imprisonment for more than 7 years.

24 The term 'under sentence of imprisonment' is also defined in the DSO Act s 3. There the term is said to have a meaning consistent with s 66 of the Sentence Administration Act 2003. Broadly put, the effect of that section is that where a prisoner is released under an early release order, by which is meant a parole order or a re-entry release order (s 4(2)), that person, 'remains under and subject to that sentence until discharged from it'. Effectively that means that you are under and subject to the sentence until the end of the period of the re-entry release order or the parole period, or in the case of a non-parole term, until service of the term has been completed.

25 To my mind, that is of little assistance in relation to a case such as this because it begs the question whether the respondent was properly to be regarded within the meaning of s 8(1) as being under a sentence of imprisonment in part for the serious sexual offence until 12 July 2008 because, as from 19 January 1998, he was serving an aggregate term which was made up in part, indeed in large part, by the sentence imposed for the sexual assault offence.

26 The matter has not, I think, been considered before. Counsel were unable to refer me to any authority in this jurisdiction or in Queensland; in which State there is legislation which is the parent of the DSO Act. There is, I think, an ambiguity inherent in the terminology used in s 8, and I am assisted in this case by having regard to the second reading speech of the Attorney General and the evident purpose of the Act. It is designed, having regard to the objects of the Act set out in s 4, ultimately to ensure, so far as possible, that the community is given an adequate degree of protection where there is an unacceptable risk that at the end of a term of imprisonment, and upon the discharge of the offender from the sentence and his release from custody, he would commit a serious sexual offence unless subject to the statutory controls in the form of a continuing detention order or a supervision order: DSO Act s 7 and s 17.

27 If a strict interpretation of the phrase 'under sentence of imprisonment wholly or in part for a serious sexual offence' is adopted in circumstances such as exist here, there would in fact never be a capacity to make an application under the Act in respect of the respondent.

28 A strict interpretation would result in the conclusion that the respondent was no longer under sentence of imprisonment wholly or in part for the sexual assault offence when he served either two-thirds of the aggregate term of 12 years imposed to take effect from 19 January 1998 or two-thirds of the term of 8 years imprisonment imposed for the sexual assault concurrently with the related burglary sentence. In neither case, while under sentence of imprisonment wholly or in part for the sexual assault offence, would there be any possibility that he might be released from custody when he ceased to be under sentence of imprisonment wholly or in part for that offence.

29 The respondent's position would be improved so far as the potential to apply the DSO Act to him is concerned, because he committed other offences, which did not include a serious sexual offence, on a separate occasion, meriting separate cumulative punishment. Indeed, if that view is right, no application under the DSO Act could be brought in this case because of the structure of the sentences imposed with effect from January 1998. It will be recalled that the second group of offences, a burglary and assault occasioning bodily harm in respect of which an aggregate term of 4 years imprisonment was imposed, were ordered to be served cumulatively upon the first group of offences. The same reasoning would apply to prevent an application under the DSO Act by reason of the multiplicity of offences for which sentence was to be passed on the one occasion.

30 In my opinion, the relevant limiting phrase in s 8 requiring that the offender be, 'under sentence of imprisonment wholly or in part for a serious sexual offence', should not be so interpreted, when the effect would be to defeat the application of the Act entirely, in a particular case which might otherwise fall within the purpose of the enactment of the statutory scheme.

31 In my view, an offender remains under sentence of imprisonment in part at least for a serious sexual offence when the aggregate term being served, whether comprised of sentences all passed on the one occasion or on different occasions, and whether the sentences take effect concurrently, cumulatively or partially cumulatively, includes a sentence or sentences for a serious sexual offence. The requirement of the statute will be satisfied where the sentence for a serious sexual offence contributes a portion of the aggregate term of imprisonment. Then the offender remains under that sentence of imprisonment until he is discharged from the aggregate term and entitled to be released from custody.