Lowndes v The Queen [1999] HCA 29

High Court of Australia Gleeson CJ Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ Lowndes v The Queen [1999] HCA 29

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of Western Australia in relation to the Crown appeal against sentence made on 8 August 1997 and dismiss the Crown appeal to that Court.

Cur adv vult

The Court delivered the following written judgment:—

17 June 1999 Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

1. This is an appeal against a decision of the Court of Criminal Appeal of Western Australia [1] , made pursuant to s 98 of the Sentencing Act 1995 WA (the Act), that, in addition to a term of imprisonment which had previously been imposed upon the appellant by Judge L A Jackson in the District Court, there should be an order that the appellant be imprisoned indefinitely. By the same decision, a parole eligibility order made by Judge Jackson pursuant to s 89 of the Act was set aside.

1. R v Lowndes (1997) 95 A Crim R 516.

2. On 28 November 1996, the appellant, following a trial before Judge Jackson and a jury, was conViced of seven sexual offences. Four of the offences involved procuring a child under the age of thirteen years to do an indecent act contrary to s 320(5) of the Criminal Code WA (the Code). The maximum penalty for that offence is imprisonment for ten years. There were also three offences of indecent dealing with a child under the age of thirteen years contrary to s 320(4) of the Code. The maximum penalty for that offence is also imprisonment for ten years. The appellant was sentenced on 19 February 1997. It is unnecessary to set out the detail of the structure of the sentences. The effective total sentence was imprisonment for six years. In respect of one of the individual sentences, the sentencing judge ordered that the appellant be eligible for parole. The Court was informed by counsel, in the course of argument, that errors were made both by the sentencing judge and by the Court of Criminal Appeal in relation to the date on which, pursuant to the orders of the sentencing judge, the appellant could be released on parole. The detail is not presently material. It is sufficient to note that it was agreed that, under the order made at first instance, the appellant could have been released on parole on 29 March 2000.