Time spent in custody under a continuing detention order under the Dangerous Sexual Offenders Act 2006 (WA) is, per the majority ([name withheld] and [name withheld]), an aspect of an offender's personal circumstances relevant to the totality principle, because the deprivation of liberty may lessen the demands of deterrence. However, [name withheld] held that such detention is not relevant to the first limb of the totality principle because it is not punishment and is unrelated to the criminality of the offences. The question remains unsettled at the level of binding authority.
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