Court of Appeal (WA)|2008-09-08|Before: McKechnie J, Steytler P, Buss JA, Kechnie J

DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- GTR [2008] WASCA 187 (8 September 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- GTR [2008] WASCA 187

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- GTR [2007] WASC 318

Criminal law and procedure - Dangerous sexual offender application - Appeal against refusal to make continuing detention or supervision order - Relationship between the notions of 'a serious danger to the community' and 'unacceptable risk' - The meaning of 'unacceptable risk' - The meaning of 'to a high degree of probability' - If an offender is 'a serious danger to the community' a continuing detention order or a supervision order must be made - Admissibility of evidence of offending and convictions as a child - Admissibility and weight of expert psychiatric opinion - Evaluation of risk of commission of a serious sexual offence - The nature of the appeal

1 STEYTLER P & BUSS JA: The material facts, the reasoning of the learned primary judge (McKechnie J) and the grounds of appeal are set out in the reasons of Murray AJA.

2 We agree that the appeal should be dismissed. Our reasons are as follows. We focus principally on the proper construction and application of relevant provisions of the Dangerous Sexual Offenders Act 2006 (WA) (Act).

3 The objects of the Act are apparent from s 4 read with s 7. They are:

(a) to provide for the detention in custody or the supervision of sexual offenders who would otherwise present an unacceptable risk of committing a 'serious sexual offence', as defined in s 106A of the Evidence Act 1906 (WA); and

(b) to provide for continuing control, care or treatment of offenders of the kind referred to in (a).

4 Under s 8(1) of the Act, the Director of Public Prosecutions (WA) (DPP) may file with the Supreme Court an application for orders under s 14 and s 17(1) in relation to a person (the 'offender') who is under sentence of imprisonment wholly or in part for a serious sexual offence. Section 17 reads:

(1) If the court hearing an application for a Division 2 order [that is, an order under s 17(1)(a) or s 17(1)(b)] finds that the offender is a serious danger to the community, the court may -

(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or

(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.

(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

5 Section 18 of the Act provides for the conditions of a supervision order (that is, an order under s 17(1)(b) or s 33(2)(b)) that might be imposed. It reads as follows:

(1) If the court makes a supervision order against a person, the order must require that the person -

(a) report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the person's current name and address;

(b) report to, and receive visits from, a community corrections officer as directed by the court;

(c) notify a community corrections officer of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens;

(d) be under the supervision of a community corrections officer;

(e) not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and

(f) not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the order.

(2) The supervision order may contain any other terms that the court thinks appropriate -

(a) to ensure adequate protection of the community; or

(b) for the rehabilitation or care or treatment of the person subject to the order.

6 Section 7 of the Act deals with the notion of 'a serious danger to the community' that triggers the operation of s 17(1). Section 7(1) reads:

Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order [that is, an order under s 17(1)(a) or s 23(b)] or a supervision order [that is, an order under s 17(1)(b) or s 33(2)(b)], the person would commit a serious sexual offence.

7 Section 7(2) of the Act places upon the DPP the onus of satisfying the court of the matters specified in s 7(1). This must be done by acceptable and cogent evidence: s 7(2)(a). The level of satisfaction must be 'to a high degree of probability': s 7(2)(b). In deciding whether to find that a person is a serious danger to the community, the court is required by s 7(3) to have regard to:

(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;

(b) any other medical, psychiatric, psychological, or other assessment relating to the person;

(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future;

(d) whether or not there is any pattern of offending behaviour on the part of the person;

(e) any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;

(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person;

(g) the person's antecedents and criminal record;

(h) the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;

(i) the need to protect members of the community from that risk; and

(j) any other relevant matter.

8 Section 14(1) of the Act provides that if, at a preliminary hearing, the court is satisfied that there are 'reasonable grounds for believing that the court might, under section 7(1), find that the offender is a serious danger to the community, the proper officer of the court must fix a day for the hearing of the application' for a continuing detention order under s 17(1)(a) or a supervision order under s 17(1)(b). Section 14(2)(a) provides that, if the court is satisfied as described in s 14(1), it must order that the offender undergo examinations by two psychiatrists named by it for the purposes of preparing reports, as required by s 37, to be used on the hearing of the application. Extraordinarily, s 14(2)(b) provides that, if the offender is in custody and might otherwise be released before the application is finally decided, or if the offender is not in custody, the court may order that the offender be detained in custody for a stated period. There is consequently a power to imprison a person, who has completed any sentence of imprisonment imposed upon him, only because there are 'reasonable grounds' for believing that he 'might' be found to present an 'unacceptable risk' of committing a serious sexual offence if not subject to a continuing detention order or a supervision order. That is a remarkably low threshold for imprisoning a person solely as a preventative measure.

9 Each psychiatric report ordered pursuant to s 14(2)(a) must indicate the psychiatrist's assessment of the level of risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence and the reasons for that assessment: s 37(2).

10 The Act provides, by pt 3, for annual reviews of a person's detention under a continuing detention order. The first review must be carried out as soon as practicable after the end of a period of one year, commencing when the person was first in custody on a day on which that person would not have been in custody had the order not been made: s 29(2)(a). Subsequent reviews must be carried out as soon as practicable after the end of the period of one year commencing when the detention was most recently reviewed: s 29(2)(b). Applications for review must be brought by the DPP (s 29(1)), although a person subject to a continuing detention order may, with the leave of the court, apply for a review under s 30(1) if he or she is able to satisfy the court that there are exceptional circumstances (s 30(2)). An application cannot be made under s 30(1) until after the detention has been reviewed under s 29(2)(a) (that is, after the initial annual review has been carried out). Further provisions in respect of the reviews may be found in s 31, s 32 and s 33.

11 Appeals are provided for by pt 4 of the Act. An appeal is by way of rehearing: s 36(1). Section 36(2) provides that the Court of Appeal:

(a) has all the powers and duties of the court making the decision against which the appeal is made;

(b) may draw inferences of fact, not inconsistent with the findings of the court making the decision against which the appeal is made; and

(c) may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit, or in another way.

12 Section 40 of the Act provides that proceedings under the Act or on an appeal under the Act are to be taken to be criminal proceedings for all purposes. Section 42 deals with applicable rules of evidence.

13 The provisions to which we have referred, read in their context, raise a number of questions. The more pertinent of these, for present purposes, are:

(1) Is there any distinction, for the purposes of the Act, between a finding that a person is 'a serious danger to the community' and a finding that there is 'an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence', within s 7(1)?

(2) What constitutes an 'unacceptable risk' in this context?

(3) What is conveyed by the requirement in s 7(2)(b) that the court must be satisfied 'to a high degree of probability'?

(4) Does the word 'may' in s 17(1) mean 'must'; or is there a discretion to do nothing, notwithstanding a finding that an offender is a serious danger to the community?

(5) When considering an application under the Act, is the court entitled, in any case, to have regard to relevant sexual offences committed when the offender was a juvenile; or is this prohibited by s 190 of the Young Offenders Act 1994 (WA) when the period of 2 years referred to in s 189(2) of that Act has expired?

(6) To what extent must a court be guided by psychiatric reports prepared pursuant to s 37 of the Act?

(7) What is imported by the requirement, in s 36(1), that the appeal is to be 'by way of rehearing'?

Question 1 - 'Serious danger' and 'unacceptable risk'

14 There is some controversy as to whether there is any relevant distinction between a finding that a person is a serious danger to the community on the one hand, and a finding that there is an unacceptable risk that, if the person is not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence, on the other, within s 7 of the Act.

15 The relevant principles of statutory construction are set out in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] - [71]. It is unnecessary to reproduce them.

16 Although the Act was said, in the course of the Attorney General's second reading speech with respect to the Dangerous Sexual Offenders Bill (Parliamentary Debates, Legislative Assembly, 9 November 2005, 7006), to be largely based on the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the Parliament did not see fit to adopt the device used in s 13(2) of that Act, which provides that a 'prisoner is a serious danger to the community ... if there is an unacceptable risk that the prisoner will commit a serious sexual offence' if released from custody or if released from custody without a supervision order being made.

17 In Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, Martin CJ concluded [11] that, by using two different expressions, namely 'serious danger to the community' and 'unacceptable risk', and by specifying that a finding of the latter is a prerequisite to a finding of the former, 'the legislature appears to be connoting that the two expressions have a different ambit'. He consequently thought that there was at least a theoretical possibility that someone could pose 'an unacceptable risk' but not be 'a serious danger to the community'. He gave, as an example, the possibility that the Parliament intended the reference to 'the community' to connote a danger to a broad class or group, thus excluding cases in which the unacceptable risk was posed only to an identifiable individual.

18 In the same case, Wheeler JA (with whom Le Miere AJA agreed), took a different approach. In her opinion [66], if (as she understood to be the case) the words 'unacceptable risk' are referring to a risk which is 'unacceptable having regard to the serious consequences of making such a finding', it was 'difficult to imagine what further matters the court would need to consider in determining whether the person was a serious danger to the community'. She suggested [66] that, in using the expression 'serious danger to the community', in addition to the expression 'unacceptable risk', the Parliament was merely intending to emphasise the very serious nature of the finding with which the court was concerned. In Wheeler JA's view [66], once the court had found an 'unacceptable risk' in the sense that she described, the finding of serious danger to the community inevitably followed.

19 In our respectful opinion, it is not difficult to understand why the Chief Justice should have concluded, as he did in Williams, that the use of two different expressions, 'serious danger to the community' and 'unacceptable risk', taken with the requirement that a finding as to the second of those characteristics is essential to a finding as to the first, is suggestive of an intention that they mean different things. It is also not difficult to understand why the section might be construed in such a way as to leave open a finding, for example, that a potential offender presents an unacceptable risk, absent a continuing detention order or a supervision order, of committing a serious sexual offence against a particular person (perhaps an estranged spouse), but does not present a serious danger to the community in general. The legislation is less than clear in these respects.

20 The expression 'serious danger to the community' is defined, in s 3 of the Act, to have 'the meaning given to that term in section 7'. That definition is not especially helpful, as s 7 does not ascribe a specific meaning to the expression. Relevantly, it does only two things. First, it provides (s 7(1)) that before the court may find that a person is a 'serious danger to the community', the court has to be satisfied that there is an 'unacceptable risk' of the kind described. Secondly, it provides (s 7(3)) that, in deciding 'whether to find that a person is a serious danger to the community' (not whether the person poses the 'unacceptable risk' referred to), the court must have regard to the factors set out in pars (a) to (j).

21 In our opinion, the definition of 'serious danger to the community' in s 3, read with s 7 (in particular, s 7(1)), suggests a Parliamentary intention that if the court is satisfied that there is an 'unacceptable risk' of the kind described, then the person will necessarily and automatically be a 'serious danger to the community'. Although s 7(3) enumerates various matters to which the court must have regard in deciding whether to find that a person is a 'serious danger to the community', those matters must be relevant (alternatively, also relevant) to the court's determination of whether there is an 'unacceptable risk' of the kind described.

22 The explanatory memorandum to the Dangerous Sexual Offenders Bill, when dealing with cl 7, suggests that there is no distinction between the two expressions. It records that a person 'is a serious danger to the community if there is an unacceptable risk that the person would commit a serious sexual offence if the person were not subject to a continuing detention order or a supervision order'.

23 Section 19(1) of the Interpretation Act 1984 (WA) permits a court to refer to extrinsic material, in the interpretation of a provision of a written law, if the material is capable of assisting in ascertaining the meaning of the provision, in order to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, taking into account its context in the written law and the purpose or object underlying the written law, or to determine the meaning of the provision when the provision is ambiguous or obscure or when the ordinary meaning conveyed by the text of the provision, taking into account its context in the written law and the purpose or object underlying the written law, leads to a result that is manifestly absurd or unreasonable. By s 19(2), the extrinsic material that may be considered in accordance with s 19(1) includes, relevantly:

(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister before the time when the provision was enacted;

(f) the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the Bill containing the provision be read a second time in that House.

24 Our construction of the expressions 'unacceptable risk' and 'serious danger to the community' in s 7(1) is based upon the ordinary meaning conveyed by the text of the relevant provisions in the context of the Act as a whole and the purpose or object underlying the provisions in question. We have considered the extrinsic material, to which we have referred, because the material is capable of assisting in ascertaining the meaning of the expressions in question. The interaction between the expressions is, to some extent, obscure.

25 In these circumstances, the majority opinion in Williams is, with respect, preferable and correct. It should be applied.

Question 2 - What constitutes 'an unacceptable risk'?

26 In Williams, Wheeler JA said, on the topic of 'unacceptable risk' [63] - [65]:

In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.

There are four reasons for considering that the meaning outlined above is what Parliament intended by the expression 'unacceptable risk'. The first is that s 7(1) expressly refers to the risk as a risk which exists 'if the person were not subject to [either] a continuing detention order or a supervision order'. That is, Parliament has expressly adverted to the consequences of making a finding, in referring to the type of risk to be guarded against. Second, s 7(2) places upon the DPP the onus of satisfying the court of the matters described in s 7(1) by acceptable and cogent evidence and 'to a high degree of probability'. An onus expressed in that way suggests a task of substantially greater difficulty than that of simply ascertaining whether there is a risk which is real and not remote. Third, s 7(3) sets out a variety of matters to which the court must have regard in determining the related question of whether a person is a serious danger to the community. The list includes factors which suggest that there is some need to balance the interests of the offender against those of the public, or at least that it is permissible for a court to have regard to such matters. Section 7(3)(i), for example, refers to the need to protect members of the community from 'that risk' (suggesting that the public may not need protection from every risk) while s 7(3)(j) refers broadly to 'any other relevant matter'.

Finally, it is to be noted that many of the provisions of the Act are similar to, although not identical with, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Section 13(2) of that Act referred to 'an unacceptable risk that the prisoner will commit a serious sexual offence'. It was argued in Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 that such a test was devoid of practical content. In rejecting that contention, Gleeson CJ (at [22]) and Callinan and Heydon JJ (at [225]) referred to the decision of the High Court in M v M [1988] HCA 68; (1988) 166 CLR 69, a case which dealt, as Gleeson CJ summarised it in Fardon, with 'the magnitude of a risk that will justify a court in denying a parent access to a child'. That is, those members of the High Court who referred directly to the question considered that the legislature had adopted a criterion and a standard appropriate to the balancing of competing considerations. Fardon was decided prior to the enactment of the Act, and it would be expected that Parliament in Western Australia would be aware of the meaning given to that expression in the reasons in Fardon. An examination of Hansard confirms that Parliament was aware of that case: eg Parliamentary Debates, Legislative Assembly, 15 November 2005, pp 7272 - 7273.

We agree, with respect, with Wheeler JA's observations.

27 The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk - A return to basics (2006) 20 AJFL 249, 252), the advantage of the phrase 'unacceptable risk' is that 'it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case ... '.

28 The words 'high degree of probability' seem to us to be incapable of further definition. They import more than a finding on the balance of probabilities but less than a finding of proof beyond reasonable doubt.

29 In Williams, Martin CJ concluded [43] that the burden of proof imposed upon the DPP under the Act was to satisfy the court beyond a reasonable doubt that the person the subject of the application is a serious danger to the community. We respectfully disagree. The expression 'beyond reasonable doubt' is well-known to the law. So, too, is the expression 'balance of probabilities'. If the Parliament had intended that either should be the standard, it would have said so. Although it has been said that proceedings under the Act are to be taken to be criminal proceedings for all purposes (s 40), this general provision should not be read as overriding the more specific provision in s 7(2)(b). The evident intention of the Parliament was to require a standard above proof on a balance of probabilities but below proof beyond reasonable doubt. That construction is consistent with a third standard of proof recognised in the United States, being 'proof by "clear, strong and cogent" evidence lying midway between proof on a preponderance of probability and proof beyond reasonable doubt (EM Morgan, Problems with Proof in the Anglo-American System of Trials, p 82; ... Addington v Texas 441 US 41 (1979))': Cross on Evidence (7th Aust ed, 2004) [9085].

30 The phrase 'high degree of probability' was considered in TSL v Secretary to the Department of Justice [2006] VSCA 199; (2006) 14 VR 109. The phrase appears in s 11(1) of the Serious Sex Offenders Monitoring Act 2005 (Vic). Section 5 of that Act empowers the Secretary to the Department of Justice to apply to a court for an extended supervision order in respect of an offender who is an 'eligible offender' as defined in s 4(1) of the Act. Section 11(1) provides:

A court may only make an extended supervision order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order.

31 Callaway AP (with whom Buchanan JA and Coldrey AJA agreed) considered that there were two ways in which s 11(1) might be read. The first was that the words might be read so that 'high degree of probability' performs a function similar to the expressions 'balance of probabilities' and 'beyond reasonable doubt', with the court having to be satisfied to that standard that the offender is likely to commit a relevant offence. Callaway AP went on to say, in this respect [8]:

In order to express the point simply, let us use 'being reasonably sure' as shorthand for satisfaction to a high degree of probability. On the first reading of the words, they would mean that the court must be reasonably sure that the offender is likely to commit a relevant offence.

The second way in which Callaway AP considered that the words might be read was influenced by the use of the word 'likely' in the phrase 'likely to commit a relevant offence'. On this second construction (which he preferred), Callaway AP took the composite expression 'if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence' to mean 'satisfied that there is a high degree of probability that the offender will commit a relevant offence' [9]. He said, in this respect [11], that there was no reason to think that 'a high degree of probability' had to be more than 50%.

32 TSL was followed by the majority (Giles and Ipp JJA) in Tillman v Attorney-General (NSW) [2007] NSWCA 327. That case dealt with language in the Crimes (Serious Sex Offenders) Act 2006 (NSW) that was not relevantly distinguishable from the language used in the Victorian Act. Giles and Ipp JJA held that the word 'likely' in s 17(3) of the New South Wales Act denotes a high degree of probability, but not necessarily a degree of probability exceeding 50% [88] - [90], [92]. Mason P, who dissented, considered that the word 'likely' meant 'more probable than not' [8] - [13]. His Honour also considered that the phrase 'high degree of probability' in s 17(3) should be read in the light of the principle that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved. The standard of proof 'falls somewhere between a slight preponderance and satisfaction beyond reasonable doubt' [14].

33 In Cornwall v Attorney-General (NSW) [2007] NSWCA 374, Mason P, Giles and Hodgson JJA followed TSL and the majority in Tillman. In a joint judgment, their Honours said [21]:

The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion 'likely' as explained in TSL.

Also see Winters v Attorney-General (NSW) [2008] NSWCA 33.

34 Under s 7(1) and s 17(1) of the Western Australian Act, the court is required to be satisfied, to a high degree of probability, that there is an unacceptable risk that the person concerned 'would' commit a serious sexual offence unless subject to a continuing detention order or a supervision order. Just as Callaway AP considered, in the context of the Victorian Act, that proof to a high degree of probability did not mean that the court was required to be satisfied that there was more than a 50% prospect that, if unconditionally released, the offender would commit a relevant offence, in our opinion there is no requirement, for an order to be made under s 17(1) of the Western Australian Act, that the court must be satisfied that there is more than a 50% prospect that, absent a continuing detention order or a supervision order, the offender will commit a serious sexual offence. However, it seems to us, from the plain meaning of the language used, that the Parliament requires that the court must be satisfied to a high degree of probability (being more than the civil standard but less than the criminal standard) that there is an unacceptable risk of the kind mentioned in s 7(1). The court must therefore identify what it is (if anything) that constitutes the risk and makes the risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence.

35 There has been controversy concerning the meaning of the word 'may' in s 17(1) of the Act.

36 In Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, consideration was given, in passing, to the use of this word in the similar (but not identical) provision in s 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). That subsection reads:

If the court is satisfied as required under subsection (1), the court may order -

(a) that the prisoner be detained in custody for an indefinite term for control, care or treatment ... ; or

(b) that the prisoner be released from custody subject to the conditions it considers appropriate that are stated in the order ...

37 Gleeson CJ, speaking generally about the Queensland Act, said [19] that it conferred ' a substantial discretion as to whether an order should be made, and if so, the type of order'. McHugh J said [34] that the court had three discretionary choices open to it, if satisfied as required under s 13(1) (that is, if it was satisfied that the prisoner was a serious danger to the community in the absence of a protective order). These were that it might make a continuing detention order, a supervision order, or no order (see also [44]). Gummow J, on the other hand, assumed [109], without deciding, that the word 'may' in s 13(5) was used 'in a sense that requires one or the other outcome, without the possibility of declining to make either order (see Samad v District Court (NSW) [2002] HCA 24; (2002) 209 CLR 140 at 152 - 154 [31] - [38], 160 - 163 [66] - [76])'. Kirby J, dissenting, held that the legislation was invalid, and did not separately consider the issue. Hayne J also did not separately consider the issue. However, he agreed with the reasons of Gummow J, subject to one exception that is not presently material. Callinan and Heydon JJ did not expressly consider the issue. They said only [227] that, even if the court concluded that the prisoner was a serious danger to the community, it still had a discretion under s 13(5) as to the way in which the application should be disposed of as it might, for example, order that the prisoner be released from custody subject to conditions.

38 In Williams, all three judges agreed that Fardon does not resolve the meaning of 'may' in s 17(1) of the Western Australian Act: [36] (Martin CJ), [65] (Wheeler JA, with whom Le Miere AJA agreed). However, different views were expressed by Martin CJ, on the one hand, and Wheeler JA (and hence Le Miere AJA), on the other, concerning the effect of the word 'may' in s 17(1).

39 Martin CJ considered that the word gives to the court a discretion to make one or other of the orders contemplated by s 17, or no order at all [43]. He relied, in that respect, upon s 56 of the Interpretation Act, which provides:

(1) Where in a written law the word 'may' is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion.

(2) Where in a written law the word 'shall' is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed.

The Chief Justice was conscious of the fact [39] that it is difficult to see how, if a court should find that an offender is a serious danger to the community, it could then decline to make either form of order consistently with the legislative direction that the paramount consideration is to be the need to ensure the adequate protection of the community. However, he said that, given the infinite range and variety of circumstances that could be imagined, he was not prepared to say that such a circumstance could never exist. He went on to say [40]:

The Act confers upon the court quite extraordinary powers to deprive a person of their liberty, not as punishment for an offence they have committed, but in order to protect the community from a propensity to commit further offences. In that particular context, I favour the view that when the legislature used the word 'may' it intended it to carry its usual and well established meaning and thereby to confer upon the court a discretion as to whether any order will be made. However, as I have observed, the circumstances in which it would be proper to exercise that discretion will necessarily be extremely rare, if they ever exist.

40 Wheeler JA concluded that, read in its context, 'may' is to be understood as 'must'. Her Honour referred [53] to what had been said by Gleeson CJ and McHugh J in Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140 [32]:

When a statutory power is conferred by the use of words of permission, there may arise a question whether the effect is to impose an obligation, or, at least, an obligation that must be performed in certain circumstances. Even where it is plain that the intention of the legislature was permissive, questions may arise as to the nature of the considerations that the person in whom the power is confided may be entitled or bound to take into account in the exercise of the discretion conferred. Issues of this kind are to be resolved as a matter of statutory interpretation, having regard to the language of the statute, the context of the relevant provision, and the general scope and objects of the legislation (Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 at 505, per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ).

Later in her judgment, Wheeler JA went on to say [68]:

However, on the view that I take of the considerations to which the court must have regard in determining whether to find that a person is a serious danger to the community, the court has already, in arriving at that view, balanced all relevant considerations including the potential consequence of such a finding for the offender. If that is the correct view of the way in which the court should approach the making of such a finding, then there will be no further relevant considerations which the court can have regard to in deciding whether to make, or decline to make, an order. Rather, the only question which would remain is that of what would be the appropriate form of order. In that case, as it appears to me that there would be nothing upon which a discretion could sensibly operate, it is my view that the legislature intended that 'may' was to be understood as 'must'.

41 In Fardon, Gummow J referred [109] - [112] to the provisions of pt 3 of the Queensland Act headed 'Annual Reviews'. Similar, but not identical provisions, are to be found in pt 3 of the Western Australian Act. Relevantly, for present purposes, Gummow J referred to s 30(2) of the Queensland Act, which empowers the Supreme Court to:

affirm the decision only if it is satisfied -

(a) by acceptable, cogent evidence; and

(b) to a high degree of probability;

that the evidence is of sufficient weight to affirm the decision.

Section 30(2) may permit refusal by the court of an order for further detention, by reason of failure by the appropriate authorities to implement the earlier order. An example would be an order for treatment of the prisoner to facilitate rehabilitation, an objective of the Act (s 3(b)). It is unnecessary to decide that question here. However, what is vital for Pt 3, and thus to the validity of the Act, is the requirement that the regular 'review' does not, with the passage of time, become no more than a periodic formality; if the exercise in which the court was involved had been permitted by the legislation to lose its requirement for deeply serious consideration upon specified criteria and to a high degree of satisfaction, then invalidity of such legislation may well result.

42 In Attorney-General (Qld) v Francis [2006] QCA 324; [2007] 1 Qd R 396, Keane JA, Holmes JA and Dutney J considered the manner in which the court might choose between a continuing detention order under s 13(5)(a) of the Queensland Act and an order under s 13(5)(b) that the offender be released from custody subject to appropriate conditions, in the context of s 13(6) which provides that, in deciding whether to make an order under s 13(5)(a) or (b), 'the paramount consideration is to be the need to ensure adequate protection of the community'. After noting [28] that the phrase 'control, care or treatment' in s 13(5)(a) must, as a matter of ordinary language, be read disjunctively, their Honours said [29] - [30]:

This disjunctive reading suggests that there may be cases where the basis for an order may be, either

the control of an incorrigible offender, or
the care of an offender whose propensities endanger the offender as well as others, or
the treatment of an offender with a view to rehabilitation.

It will often be the case that more than one of these considerations will inform the making of an order.

It may be, however, that, in some instances, a dangerous prisoner has such clear and pressing prospects of rehabilitation that the court's choice of an order under s 13(5)(a), rather than under s 13(5)(b), will turn on the answer to the factual question whether further treatment, necessary to ensure adequate protection to the community, is likely to be available or effective only while the prisoner remains in detention. If the court were to be satisfied in a particular case that further treatment of a prisoner was necessary, and likely, to reduce the risk of reoffending to acceptable levels, but that such treatment would not be made available to the prisoner in detention, then that would be a good reason to make an order under s 13(5)(b). The choice between an order under s 13(5)(a) or (b) must, of course, be controlled in the end by s 13(6) of the Act; but, in such a case, it might make little sense to make a continuing detention order for the purpose of 'control, care or treatment' of the prisoner.

43 Keane JA, Holmes JA and Dutney J then observed that it is 'possible' that executive government repudiation of the preventative objects of the Queensland Act, in a particular case, could lead the court to refuse to make any order at all. Their Honours said [31]:

It is possible, too, that the view taken by Gummow J in Fardon v Attorney-General for Queensland ([2004] HCA 46; [2004] HCA 46; (2004) 223 CLR 575 at 620 - 621 [113]) supports an argument that executive government repudiation of the preventive objects of the Act in a particular case (as, for example, by the refusal of any treatment to a prisoner clearly capable of, and amenable to, rehabilitation) could lead the court to refuse to make any order at all. If it were to appear to the court that any further detention would be truly punitive in character and, thus, contrary to the intention of the legislation, there would be no basis for the court to make an order of any kind under the Act. The conditions of further restraint upon the detainee's liberty would be out of character with the intention of the legislature: that such restraint is preventive. The character of the detention authorised by the Act is, as was explained in the reasons of the High Court in Fardon v Attorney-General for Queensland, ([2004] HCA 46; [2004] HCA 46; (2004) 223 CLR 575 at 586 [2], 592 [19], 595 - 597 [33] - [34], 609 - 613 [72] - [81], 619 - 621 [107] - [113], 647 - 648 [196], 653 - 658 [214] - [233]) not punitive but preventive.

44 This passage suggests their Honours thought that the word 'may' in s 13(5) of the Queensland Act imports a discretion and does not require that one or other of the orders contemplated by s 13(5) be made if the court is satisfied that an offender is a serious danger to the community. Their Honours did not, however, expressly refer to the issue or discuss it. Francis was decided before Williams.

45 More recently, in Attorney-General (Qld) v Hynds [2007] QSC 374, Fryberg J noticed the issue. His Honour said that it is not altogether clear whether 'may' in s 13(5) of the Queensland Act means 'must'. He added that if it does, then the court is limited to making the two orders specified, and may not decide to make no order at all. His Honour then noted:

There are powerful factors in favour of such a construction, and neither counsel before me was disposed to argue against it. However, there may be cases where making no order would be appropriate. I should not determine this question in the absence of full argument, particularly since it is common ground in the present case that the only options practically open are the two specified in the Act.

46 In Winters, Hodgson JA referred to Williams. His Honour noted [115] the views expressed by Martin CJ and Wheeler JA (Le Miere AJA agreeing) as to whether there was a discretion not to make an order under s 17(1) of the Western Australian Act if the requirements for an order had been made out. He held that under the New South Wales Act there was a discretion not to make an order where the conditions precedent for an order have been satisfied. The relevant provisions of the New South Wales Act are s 17(1), (2), (3) and (4). At the relevant time, they provided:

(1) The Supreme Court may determine an application for a continuing detention order:

(a) by making an extended supervision order, or

(b) by making a continuing detention order, or

(c) by dismissing the application.

(2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision.

(3) A continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order.

(4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:

47 The reasoning of Hodgson JA was as follows [124] - [126]:

[I]n my opinion, the court has a discretion to decline to make any order; and this discretion could perhaps be exercised if the Court considered to be sufficiently unreasonable a failure by the Executive to make provision which would give effect to appropriate conditions of a supervision order.

That there is such a discretion is suggested by the use of the word 'may' in s 17(1), (2) and (3), by the form of s 17(2) and (3) specifying conditions precedent that must be satisfied before an order 'may' be made, and by the terms of s 17(4), in particular s 17(4)(a). The safety of the community is not a matter relevant to the conditions precedent in s 17(2) and (3), so must go to the exercise of a discretion. Of course, the terms of s 17(4)(a), particularly when combined with the new s 3 which makes the safety and protection of the community the primary object of the Act, provide very powerful grounds for exercising this discretion in favour of making an order, once the conditions precedent are satisfied; but there is in my opinion a discretion not to make an order.

The Act provides for detention of offenders beyond the expiration of the sentence imposed as being appropriate in respect of their offending, and discloses an intention that effective supervision should be provided where this is adequate, and that continued detention should be ordered only where supervision would not be adequate. In those circumstances, for the Executive to seek to secure the continued detention of an offender, while making inadequate provision for effective supervision which would have enabled the offender's release, might be considered unreasonable and might justify an exercise of discretion against the granting of an order.

48 In Winters, Mason P did not cite Williams and did not consider the issue. Giles JA referred to Williams in other contexts but he, also, did not discuss the issue.

49 In our respectful opinion, there is nothing in the reasoning of the majority in Williams that should lead us to conclude that it was plainly wrong, or that it should, for some other reason, not be followed. That is itself a sufficient reason to apply it: Craig v Troy (1997) 16 WAR 96, 162; Traegar v Pires de Albuquerque (1997) 18 WAR 432, 447; Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, 354.

50 The interpretation put upon s 17(1) of the Act by the majority in Williams seems to us, in any event, to be supported by s 33, dealing with review of a continuing detention order. That section reads as follows:

(1) When the court, on an application made under section 29 or 30, reviews a person's detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.

(2) The court may, if it finds that the person subject to the order remains a serious danger to the community, either -

(a) expressly decline to rescind the order; or

(b) rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.

(3) In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.

51 It appears to be plain enough, from s 33, that once a court finds that a person remains a serious danger to the community it must do one of the two things mentioned in s 33(2) and that the option of rescinding the order and releasing the offender is only to be adopted if the court does not find that the person remains a serious danger to the community. Also, so far as s 56 of the Interpretation Act is concerned, the provisions of that section apply unless, in relation to a particular written law, express provision is made to the contrary or, in the case of a statute, the intent and object of the statute or something in its subject or context is inconsistent with their application: s 3 of the Interpretation Act. On the view of the majority in Williams, there is in the subject matter and context of the Act material that is inconsistent with the application of s 56 of the Interpretation Act.

Question 5 - Convictions falling within s 189(2) of the Young Offenders Act

52 Section 189(2) of the Young Offenders Act provides that:

If a young person is convicted of an offence and a period of 2 years has expired since -

(a) the discharge of any sentence imposed as a result of the conviction, or every sentence if more than one sentence was imposed; or

(b) the date of conviction, if no sentence that required to be discharged was imposed as a result of the conviction,

the conviction is not to be regarded as a conviction for any purpose, except as provided in this section.

53 Section 190 of the Young Offenders Act provides that:

(1) If section 189 provides that a conviction of an offence is not to be regarded as a conviction, evidence of that conviction is not admissible in any proceedings, other than proceedings under this Act or on indictment for the offence or for a subsequent offence.

(2) A person, not being the person convicted, who discloses the fact of a conviction that, under section 189, is not to be regarded as a conviction commits an offence except if the disclosure is for the purposes of this Act or of any court of law.

54 As we have said, s 7(3) of the Act requires the court to have regard to, amongst other things:

...

(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future;

(d) whether or not there is any pattern of offending behaviour on the part of the person;

...

(g) the person's antecedents and criminal record [our emphasis]; [and]

...

(j) any other relevant matter.

55 Plainly, evidence of prior sexual offending as a juvenile might, in an appropriate case, be evidence bearing upon the questions whether there is any propensity to commit sexual offences in the future and whether there is any pattern of offending behaviour. It would also be a relevant part of the person's antecedents and criminal record. It would, on any view, be relevant to the question whether or not the person is a serious danger to the community. Also, each psychiatrist named in an order under s 14(2)(a) of the Act, or who is reporting for the purposes of a review pursuant to s 32, must be given, by the chief executive officer, any relevant information relating to the person to be examined that is in the chief executive officer's possession or to which he or she has, or may be given, access: s 38(1). Section 38(3) provides that a person in possession of any prison, or other relevant report or information, relating to the person to be examined must give a copy of the report or the information to the chief executive officer if asked by him or her to do so. Section 38(4) requires this to be done 'despite any other law or any duty of confidentiality'. Moreover, s 42(4) provides that:

In making its decision, the court may receive in evidence -

(a) any document relevant to a person's antecedents or criminal record;

(b) anything relevant contained in the official transcript of any proceeding against a person for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind.

56 In our respectful opinion, these provisions require the admission of evidence establishing the commission of prior sexual offences while a juvenile. If there is any conflict between them and the provisions of the Young Offenders Act to which we have referred then, in our opinion, the later provisions override the former to the extent of the inconsistency: Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1, 7 (Griffith CJ).

57 A court will, ordinarily, place significant weight on the assessment of a psychiatrist made under s 37(2) of the Act. That is because the psychiatrist has expertise which the court lacks and the Parliament considers to be important. However, if the psychiatrist's reasons for the assessment (required by s 37(2) to be included in the report) do not withstand scrutiny, even allowing for the psychiatrist's expertise, or if the assessment is based on mistaken factual assumptions, the court is, of course, free to give little weight to it.

58 We agree, with respect, with what was said in TSL by Callaway AP, in the context of the similar Victorian legislation. He said [40]:

The report is only part of the material to which the judge will have regard in deciding whether he or she is satisfied that the offender is likely to re-offend. The natural starting point will often be the sentencing remarks of the judge who imposed the custodial sentence that made the respondent to the secretary's application an eligible offender ... and the sentence that was imposed. That judge's assessment of the offender is likely to be of assistance. So, too, is the sentencing experience of the judge determining the application under the Monitoring Act. As judges acquire experience with this legislation, other material may be found to be helpful. The court may direct the secretary or the offender to obtain a report of any kind to assist it in determining the application... In the end what is required is an assessment by the judge of the likelihood of the person's re-offending. Sentencing judges perform that task, admittedly with less assistance, every day, when they decide what weight to give to the protection of the community or to specific deterrence or assess a prisoner's prospects of rehabilitation (compare Fardon v Attorney-General (Qld) ... [226] per Callinan and Heydon JJ). (original emphasis)

59 As will be apparent, s 7(3) of the Western Australian Act lists a number of matters to which the court must have regard, only one of which is any report that a psychiatrist prepares as required by s 37. Amongst the other matters to which it must have regard are 'any other medical, psychiatric, psychological, or other assessment relating to the person' (s 7(3)(b)) and 'any other relevant matter' (s 7(3)(j)).

60 In TSL, Callaway AP derived some support for the approach adopted by him from the following passage in an issues paper prepared by Professor Bernadette McSherry on behalf of the Sentencing Advisory Council (the passage is quoted in [41] of Callaway AP's reasons):

Preventive detention schemes rely on assessments of risk. While mental health professionals who give evidence in court about offenders' risk are often cross-examined, there is some question about whether such evidence should be admitted at all. These assessments of risk tend to be taken out of their primary context, which is one of treatment and intervention. There is also the potential for judges and juries to misunderstand and misuse risk assessments, assigning greater accuracy and inevitability to predicted behaviours than is warranted ...

As well as having difficulties with accuracy, predictions of risk may be seen as providing a veil of science over what is essentially a social and moral decision about the kind of offender who creates the greatest fear within the community. Asking mental health professionals to assess the risk of future harm shifts the burden of deciding what to do with such offenders from the community to clinicians whose primary role lies within the medical model of treatment, rather than within the criminal justice model of punishment and community protection. [Footnotes omitted.]

I refer also to what Kirby J said in his dissenting judgment in Fardon v Attorney-General (Qld) ... about the unreliability of predictions of criminal dangerousness and the tendency of mental health professionals, who are primarily concerned with treatment and intervention, to overpredict recidivism.

It is for those reasons that Parliament has conferred the responsibility for deciding whether or not to make an extended supervision order on judges experienced in sentencing, assisted but not constrained by assessment reports and medical evidence.

62 We agree, with respect, with Callaway AP's comments (which, as we have mentioned, were agreed with by Buchanan JA and Coldrey AJA). Although there is no doubt, under the Western Australian Act, that a court must have regard to the psychiatrists' reports (and must bear in mind that the authors have an area of expertise not shared by the court), the reports are only a part of the materials that must be considered and the weight to be accorded to them will depend upon their cogency and reliability, when considered in the light of the whole of the evidence. The responsibility for deciding whether or not the offender is a serious danger to the community as defined and, if so, what order should be made is that of the judge alone.

63 We have earlier referred to s 36(1) of the Act (which provides that the appeal is by way of rehearing) and s 36(2) (which gives to the Court of Appeal various powers, including a power to draw factual inferences, not inconsistent with the findings of the primary court, and the power, on special grounds, to receive further evidence).

64 The nature of an appeal by way of rehearing was discussed by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194. Gleeson CJ, Gaudron and Hayne JJ said [13] - [14]:

If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing (See Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172).

Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law (Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 106 - 108, per Dixon J), a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker (Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172. See also CDJ v VAJ (1998) 197 CLR 172 at 201 - 202 [111], per McHugh, Gummow and Callinan JJ). That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error (see CDJ v VAJ (1998) 197 CLR 172 at 201 - 202 [111], per McHugh, Gummow and Callinan JJ). However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance ...

(See also Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [4].)

65 There has, in this case, been no further evidence. Nor has there been any change in the law. This court may consequently exercise its appellate powers only if there was error on the part of the primary judge. That seems to us to be the effect of s 36(1) of the Act, having regard to what was said in Coal and Allied Operations. That this was the Parliament's intention appears to be reinforced by the fact that s 36(2) limits the court's power, when drawing inferences of fact, to drawing inferences that are 'not inconsistent with the findings of the court making the decision against which the appeal is made'.

66 Subject to the observations we have made concerning the proper construction and application of the Act, we agree, generally, with Murray AJA's reasons for dismissing the appeal. Any differences in reasoning or emphasis between our reasons and Murray AJA's reasons do not, in the present case, affect the merits of any of the grounds of appeal or the outcome of the appeal.

67 We wish to make some comments on the evidence concerning the effect, on risk, of the respondent's youth (particular (c) of the ground of appeal) and concerning his prognosis in the light of courses undertaken by him.

68 Murray AJA has commented at some length on the evidence as regards the effect, on risk, of the respondent's youth. Both psychiatrists who gave evidence, Dr Tanney and Dr Brett, appear, in their reports, to have placed some reliance upon the STATIC-99 risk prediction tool in suggesting that offending at a young age gives rise to an enhanced risk of re-offending. However, each recognised, in the course of oral evidence, that there are significant shortcomings in that test. That is primarily because the text relies upon unchangeable historical factors. It is consequently susceptible to error in cases in which opportunities for rehabilitation have been availed of.

69 In his evidence, Dr Tanney acknowledged that, subject to one minor exception, the respondent had taken advantage of opportunities for rehabilitation that had been offered to him. He was asked, in cross-examination, about the 'significance of youth and childhood' to the prospect of rehabilitation. In the course of that questioning he was asked whether it was a matter that bore very much in the respondent's favour that he had done all that had been asked of him. He responded, 'Very much in his favour'.

70 As the primary judge pointed out [70], Dr Tanney acknowledged that there is a great margin for error in dealing with the issue of youthful offending. In his report, Dr Tanney considered the personal circumstances of the respondent at some length, raising factors that had worked for and against him. He emphasised (page 25 of his report) the need for family support and the presence of a guiding male figure, seemingly recognising that the risk presented by the respondent's immaturity could be alleviated by these factors as he matures.

71 The respondent has completed a number of courses. Some of these were completed while he was detained in Banksia Hill Detention Centre during 2003. His case planning officer's report dated 6 March 2003 concludes with the following summary:

[GTR] continues to behave well and make the most of the education and sporting programmes at Banksia Hill. He has also completed group programmes in substance misuse, anger management and coping skills and done as much sex offender counselling as could be expected. He would benefit from any further counselling that can be provided in the community, but he certainly seems to have earned the opportunity for early release.

72 As will be apparent, the respondent re-offended in March 2004. A psychological report prepared by Ms Kirstin Bouse, a forensic psychologist, on 2 August 2004 suggested that his treatment needs were then 'considerable', given his re-offending behaviour and his history of problematic substance abuse. She recommended that he undergo a sex offender treatment programme provided in Greenough Regional Prison. The respondent has since completed that programme. His treatment completion report, prepared by two psychologists, suggests that he is at high risk of re-offending (although it relies, for this conclusion, upon a STATIC-99 prediction which, as we have said, is based on unchangeable historical factors). On the other hand, the report mentions a number of positives. The respondent is said to have claimed to 'have some direction and goal whereas at the time of his previous release he claimed not [to] have developed either direction or goals'. The authors also said that a further 'strength', favouring the respondent, was 'the support and guidance that he claims his mother and stepfather have indicated they are willing to provide, whereas his previous release address was to his grandmother in Warakurna where there was a lack of a strong positive male role model'. The authors suggested that the respondent would continue to gain self-confidence should he be released to parole under a mentorship programme. Despite this, in October 2006 parole was refused due to the respondent's 'unaddressed' alcohol/substance abuse problems and seemingly also because of a reluctance on the part of members of his community to welcome him back.

73 A sex offender risk update report was prepared in respect of the respondent on 24 April 2007. This, too, was not particularly favourable. Once again, the report relied (in part) upon a STATIC-99 score. The respondent was also said still to display some of the personal characteristics associated with sex offenders, for example, social inadequacy, poor self esteem, poor social networks and limited sexual outlets. The author of the report also suggested that the respondent's release plans might not be workable and that this was a potential risk factor for him. However, the author accepted that the respondent had attended a programme to address his offending behaviour and, importantly, that he appeared to have developed an awareness of his risk factors. The report said that any supervision order would require significant planning and consultation with the appropriate departmental and community representatives.

74 Although these reports are not encouraging (albeit they are somewhat ambivalent in their prognostications concerning the respondent), they are insufficient, when considered together with the other evidence referred to by Murray AJA and the primary judge, to demonstrate that the primary judge erred in his conclusion that, although there is undoubtedly a risk of the kind contemplated by s 7 of the Act, the evidence was not sufficient to establish, to the required standard, that the risk was unacceptable in the sense we have described.

76 The respondent was born on 20 May 1985. On 29 March 2004, when he was a young man of 18 years, he committed three offences at Warrakurna Aboriginal community. The victim in each case was a 65-year-old woman stationed at the community as a nurse, operating a nursing clinic there. I shall return to the factual circumstances.

77 The offences included an offence of unlawful detention and an offence of attempted sexual penetration of the complainant in circumstances of aggravation, in that the respondent was armed with a knife and his victim was over the age of 60 years. The third offence was one of aggravated (by the victim's age) unlawful wounding. The second offence, the attempted aggravated sexual assault, was a 'serious sexual offence' within the meaning of s 3 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) because it was an offence within the definition of that term in the Evidence Act 1906 (WA), s 106A(a) and (c).

78 When the respondent was brought before the Magistrates Court he entered pleas of guilty which were accepted by the court, and he was committed for sentence to the District Court at Kalgoorlie by the process of expedited committal. The respondent was a young person of Aboriginal descent. He was indicted for the offences mentioned and, upon his appearance in the District Court at Kalgoorlie, he repeated the pleas of guilty which were again accepted by that court.

79 He was convicted and on 21 September 2004 was sentenced by the District Court to a term of 3 years and 4 months imprisonment for the attempted aggravated sexual assault, to a term of 1 year and 4 months imprisonment for the offence of unlawful detention, and to a term of 1 year and 4 months imprisonment for the aggravated unlawful wounding offence. All of those terms were ordered to be served concurrently. Eligibility for parole was ordered. The sentences were backdated to 30 March 2004. Unless the respondent was released on parole, those terms would expire, as they did, on 29 July 2007. Parole was considered and deferred before finally being denied. The respondent served the whole of the term of 3 years and 4 months.

80 On 22 May 2007 the appellant applied, pursuant to s 8 of the DSO Act for orders under s 14 and s 17(1) of that Act. Section 11(1) requires a preliminary hearing of such an application. Under s 11(3), the main purpose of that hearing is for the court to decide whether it is 'satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community'.

81 In this case the preliminary hearing was held by Blaxell J on 19 June 2007, at which time his Honour declared himself to be satisfied, under s 14(1), that the court might ultimately find that the respondent is a serious danger to the community. I will return to the orders then made in relation to psychiatric examination. At present it is sufficient to note that the judge made an order under s 14(2)(b)(i) that if the respondent was to be released from custody before the application was finally decided, he should be detained in custody until that decision was made. Such an order has come to be called an interim detention order and it took effect on 30 July 2007.

82 The application was finally heard on 22 and 23 November 2007 by McKechnie J. The application was expressed in a standard form as an application for a Div 2 order. Such an application is decided by the court under s 17 of the DSO Act, which is as follows:

(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -

(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or

(b order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.

(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

83 In this case it appears that the thrust of the application became one in which an order was sought, not for the continuing detention of the respondent, but for his supervision in the community. The appellant provided a draft supervision order in terms tailored to meet the respondent's particular circumstances, but they were not debated before McKechnie J because, at the conclusion of the hearing, his Honour decided to reserve his decision on the question whether the respondent was to be declared a serious danger to the community within the meaning of s 7 of the Act.

84 In light of that decision, and having regard to the obligation under s 27 of the Act to give 'detailed reasons' for the making of a final order at the time the order is made, McKechnie J adjourned the application and, pending its final decision, his Honour permitted the respondent to be released from custody upon entering into a detailed undertaking. Having done that, he was to be released on boarding a flight to Warburton at Kalgoorlie airport on 5 December 2007. The undertaking also required supervision by a community corrections officer and a mentor or other support person nominated by a community corrections officer. There were various other supervision conditions, including residential conditions, conditions requiring reporting to the police, and conditions designed to prevent the commission of any offence punishable by imprisonment or any sexual offence. He was to surrender himself to the police at Warrakurna when required to submit to the judgment of the court.

85 It is unnecessary for the purpose of the proceedings before this court to examine the legal efficacy of that process, which has been employed on other occasions to make good what seems to be a statutory lacuna. But the undertaking, which in terms provided for the suspension of the interim custody order, was one given to the court, and its breach would no doubt constitute a contempt of court, for which appropriate proceedings might be taken. In any event, on 20 December 2007, McKechnie J published his reasons for decision and dismissed the application brought by the appellant. The respondent was thereupon discharged both from the interim custody order and the undertaking, which he had in fact given on 30 November 2007.

86 From that decision, the appeal is brought on the following ground:

The learned trial Judge erred in law in failing to make a supervision order pursuant to s 17(1) of the Dangerous Sexual Offenders Act 2006.

Particulars

The learned trial Judge erred in:

(a) taking into account an irrelevant consideration, namely the racial origin of the Respondent;

(b) finding inadmissible evidence of the behaviour of the Respondent which led to his 2002 Children's Court convictions;

(c) Finding that the relative youth of the Respondent was a factor which reduced the risk of re-offending, contrary to the evidence of the two Court appointed expert psychiatrists;

(d) declining to give significant weight to the expert psychiatric opinions as to risk because of the lack of validation of the predictive models or tests;

(e) distinguishing the assessment of risk from the management of risk;

(f) finding that there was no evidence of propensity to commit serious sexual offences; and

(g) finding that the pattern of offending was opportunistic.

87 The appeal is brought under s 34 of the DSO Act. Section 36 of that Act provides:

(1) An appeal is by way of rehearing.

(2) The Court of Appeal -

(a) has all the powers and duties of the court making the decision against which the appeal is made;

(b) may draw inferences of fact, not inconsistent with the findings of the court making the decision against which the appeal is made; and

(c) may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit, or in another way.

Proceedings under this Act or on an appeal under this Act, are to be taken to be criminal proceedings for all purposes.

Leave to appeal is not required. The appeal does not in terms fall within the Criminal Appeals Act 2004 (WA), ss 23 and 27.

Particular (a): an irrelevant consideration

89 McKechnie J introduced his judgment with some general observations, saying that of the total population of WA, according to the 2006 Census, 3% were indigenous persons, but over half of the applications under the DSO Act concerned indigenous respondents. A third of them related to persons from remote indigenous communities.

90 Those observations were not demonstrated to have had any effect upon his Honour's judgment in the case. It is not established that the judge took those matters into account in determining the application and it is therefore unnecessary to consider the relevance of the matters mentioned to his decision.

Particular (b): the admissibility of evidence of offending as a child

91 It was alleged and ultimately proved in the Children's Court that on 12 May 2002, a few days before the respondent's 17th birthday, at Warburton, the respondent committed offences of aggravated indecent assault (aggravated by doing bodily harm to the victim) and attempted sexual assault on the same victim. Those were serious sexual offences as defined. After a trial at Kalgoorlie before the President, O'Brien DCJ, the respondent was convicted of both offences. On 11 December 2002 he was sentenced to a total term of 7 months detention backdated to 4 October 2002. There is some uncertainty about when the respondent was released from that term of detention, but of course it was at least by the beginning of May 2003, some 10 months before the commission of the offences which were the subject of the later District Court proceedings.

92 During the hearing of the application, a question arose about the admissibility in evidence of the convictions recorded in the Children's Court. The question was raised by McKechnie J, who invited submissions. Ultimately, his Honour held that evidence of the convictions and of the offending behaviour to which they related, was inadmissible. The conclusion relies particularly upon relevant provisions of the Young Offenders Act 1994 (WA) and upon his Honour's view about what was to be regarded as falling within the term 'conviction', which in his judgment, Director of Public Prosecutions (WA) v GTR [2007] WASC 318 [33] he expressed as follows:

Necessarily, to take into account a conviction is to take into account the accompanying behaviour. Discerning as best I can, the presumed Parliamentary intention underlying the Young Offenders Act and the DSO Act, I conclude that except in the limited circumstances provided under the Young Offenders Act s 189, if more than 2 years has elapsed, no evidence of surrounding circumstances - ie the behaviour leading to the conviction - can be given in a court. To hold otherwise is to make effectively meaningless the rehabilitative policy behind the Young Offenders Act s 189 and s 190. To do otherwise would involve a court in a highly artificial process. In one sense, a conviction is simply the formal record of the court. A conviction is now defined: Criminal Procedural Act s 2(a), s 147; Children's Court Act s 37(2)(a). In 2002 the law was to similar effect. However, this is a narrow view of a conviction. In a practical sense, a conviction includes the charge upon which the conviction is based, together with all the evidence led in support of that conviction, the reasoning supporting the verdict (where, as here, there is no jury trial), together with the verdict upon which the judgment of conviction is based.

93 I have mentioned the terms of s 17 which govern the final determination of the application. The trigger for the exercise of the powers conferred by s 17(1) to make either of the orders described in the subsection is the finding by the court that, 'the offender is a serious danger to the community'. This echoes the consistent terminology, to which I have also referred, in s 11(3) and s 14(1), which provisions also refer to that finding being made under s 7(1) of the Act. It is convenient to set s 7 out in full:

Serious danger to the community

(1) Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.

(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -

(a) by acceptable and cogent evidence; and

(b) to a high degree of probability.

(3) In deciding whether to find that a person is a serious danger to the community, the court must have regard to -

(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;

(b) any other medical, psychiatric, psychological, or other assessment relating to the person;

(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future;

(d) whether or not there is any pattern of offending behaviour on the part of the person;

(e) any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;

(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person;

(g) the person's antecedents and criminal record;

(h) the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;

(i) the need to protect members of the community from that risk; and

(j) any other relevant matter.

94 In my opinion it is clear that there is no different content to the concept that a person is a serious danger to the community and the need for the court to be satisfied, not to the criminal standard of proof, but according to the onus and burden of proof described in s 7(2), that there is an unacceptable risk that the person would commit a serious sexual offence unless subjected to one or other of a continuing detention order or a supervision order. In other words, in my opinion, if the court is satisfied that there is an unacceptable risk of the kind describe in s 7(1), that constitutes or grounds the finding under s 7(1) that the offender is a serious danger to the community: cf the obiter observations of Wheeler JA, with whom Le Miere AJA agreed generally, at [66] in Director of Public Prosecutions (WA) v Williams (2007) 35 WAR 297; [2007] WASCA 206.

95 I mention these matters because I think it will assist to interpret the provisions of the DSO Act concerning the question of the admissibility of evidence raised by this particular of the ground if one has a clear view of the end point of the hearing; what must be established if the court is to make either order for which provision is made in s 17(1).

96 In addition, it is important not to overlook, as s 17(2) confirms by referring to the paramount consideration of 'the need to ensure adequate protection of the community', that the DSO Act has a clear legislative purpose expressed at more length in the long title and s 4 which sets out the objects of the Act:

The objects of this Act are -

(a) to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community; and

(b) to provide for continuing control, care, or treatment, of persons of a particular class.

97 It seems to me to be abundantly clear that the extraordinary powers provided in the Act are intended to be exercised, not for the purpose of imposing additional punishment on an offender who has served his or her sentence and is discharged from that service, but for the ultimate purpose of the protection of the community, not only by continuing to exercise control over the person the subject of an order, but also by providing for the care and treatment of the offender in the hope that thereby the danger posed by that individual to the community or sections of it, will be reduced. The 'persons of a particular class' to whom s 4 refers are, in my view, persons found to be a serious danger to the community, in that the court is satisfied that there is an unacceptable risk that the person would commit a serious sexual offence unless subjected to an order of a kind for which the Act provides.

98 By the Interpretation Act 1984 (WA) s 18, the provisions of the DSO Act are to be given a construction, if possible, 'that would promote the purpose or object underlying the written law'. In my view, such a construction would tend to ensure that in making the judgment which triggers the operation of the Act and, in that event, in exercising the discretion to decide which form of order is required and, if a supervision order is to be imposed, what should be its terms, the court should be as completely informed as possible of relevant matters, particularly those enumerated in s 7(3).

99 I observe in passing that such matters will not only be relevant, as provided by s 7(3), to the question whether the offender should be found to be a serious danger to the community, but also, in that event, to the type of order to be made, the recommendations which the court may think to be appropriate in respect of a continuing detention order and the terms of a supervision order, some of which are expressly provided for in s 18(1), but in addition under s 18(2):

The supervision order may contain any other terms that the court thinks appropriate -

(a) to ensure adequate protection of the community; or

(b) for the rehabilitation or care or treatment of the person subject to the order.

100 As to convictions as a child and the offending behaviour which led to those convictions, I note that s 7(3)(c), (d), (e) and (f) all refer to matters and information which might include, where appropriate, reference to convictions sustained as a child, the nature of the offending behaviour involved and its causes, any orders made by a Children's Court, any treatment undertaken and how successful it is thought to have been. In addition, all such matters would be part of the offender's antecedents, to which reference is made in s 7(3)(g) separately from the reference to the obligation imposed upon the court to have regard to the offender's criminal record.

101 Finally, so far as the statutory scheme is concerned to provide for evidentiary matters of the kind under discussion in the context of a final hearing, reference should be made to s 7(3)(a) and (b), requiring the court to have regard to psychiatric reports prepared under s 37 and any other medical, psychiatric, psychological or other assessment relating to the person. There were such reports before the court. I shall need to return to them in discussing later particulars of the ground.

102 It is sufficient at this stage to observe that those reports relied to some extent upon the history of the offending behaviour as a child and the consequent convictions by the Children's Court. It is fair to say, I think, that the significant matter so far as the psychiatrists were concerned, was the offending behaviour, having regard to the circumstances of its commission. The fact of conviction was not, as I apprehend, a matter of separate significance underpinning the psychiatric opinions proffered to the court.

103 The reports were prepared under s 37 of the DSO Act. In doing so, by s 37(3), a psychiatrist must have regard to any report or information provided by the Chief Executive Officer (CEO). Under the Act the CEO is effectively the instructing officer. Section 38 of the Act provides:

(1) The chief executive officer must give to each psychiatrist, for the purpose of preparing the report, any medical, psychiatric, prison, or other relevant report or information relating to the person to be examined that is in the chief executive officer's possession or to which the chief executive officer has, or may be given, access.

(2) The chief executive officer must give to the DPP a copy of anything that the chief executive officer gives to a psychiatrist under subsection (1).

(3) A person in possession of any medical, psychiatric, prison, or other relevant report or information relating to the person to be examined must give a copy of the report or the information to the chief executive officer if asked by the chief executive officer to do so.

(4) Subsection (3) applies despite any other law or any duty of confidentiality.

(5) If a person asked under subsection (3) to give a copy of any report or information to the chief executive officer refuses to do so, the chief executive officer may apply to the court for an order requiring the person to give the report or information to the chief executive officer.

(6) A person asked under subsection (3) or ordered under subsection (5) to give a report or information to the chief executive officer is not liable, civilly, criminally, or under an administrative process, for doing so.

104 The scheme of the Act therefore, is that an obligation is imposed upon the CEO by s 38(1) to provide to each psychiatrist, 'any medical, psychiatric, prison, or other relevant report or information'. The relevance here referred to is clearly to the assessment of the level of risk posed by the offender if not subject to a continuing detention order or supervision order, which is the gravamen of the report to be made by a psychiatrist for the purposes of the Act. The psychiatrist must have regard to that report or information. Section 38(3) is a significant provision for present purposes because it imposes a duty to provide the information requested by the CEO upon any person who is in possession of it.

105 Of particular relevance is s 38(4). The obligation to provide information to the CEO applies, 'despite any other law or any duty of confidentiality'. Once it is provided to the CEO, if it is relevant he must provide it to the reporting psychiatrist, who must have regard to it and may therefore, as in this case, include a reference to any such material found to be relevant to the assessment to be made, in the course of the psychiatrist providing the reasons for the assessment of the level of risk expressed by way of expert opinion. Such a report having been made with that sort of content, the court must have regard to it.

106 Against that background, I turn to the reasoning of McKechnie J which led his Honour to the conclusion that the evidence of the Children's Court convictions was inadmissible, as was the evidence of the offending behaviour which related to those convictions.

107 The matter turns on the Young Offenders Act. Section 189(2) provides:

If a young person is convicted of an offence and a period of 2 years has expired since -

(a) the discharge of any sentence imposed as a result of the conviction, or every sentence if more than one sentence was imposed; or

(b) the date of conviction, if no sentence that required to be discharged was imposed as a result of the conviction,

the conviction is not to be regarded as a conviction for any purpose, except as provided in this section.

108 As I have said, the respondent was born on 20 May 1985. He was therefore 17 when he was convicted of aggravated indecent assault and attempted sexual assault in the Children's Court at Kalgoorlie in December 2002. When he was convicted he was a 'young person' within the meaning of s 3 of the Young Offenders Act because he had not reached the age of 18 years. His sentences, aggregating 7 months detention, were backdated to 4 October 2002. Those sentences were therefore discharged on 4 May 2003 and the period of 2 years in s 189(2) of the Young Offenders Act expired on 4 May 2005, well before the present application and the proceedings before McKechnie J. There is nothing in s 189 which would prevent the operation of s 189(2) so that each of those convictions, 'is not to be regarded as a conviction for any purpose'.

109 In that event, by s 190, 'evidence of that conviction is not admissible in any proceedings' and its disclosure constitutes an offence against the Young Offenders Act, 'except if the disclosure is for the purposes of this Act or of any court of law'.

110 There may be various difficulties of interpretation of s 190 of the Young Offenders Act, but for present purposes it is sufficient to observe that the effect of that section and s 189 in relation to this case, would appear to be that neither conviction of the respondent in the Children's Court was to be regarded as a conviction for any purpose. Evidence of that conviction would be inadmissible in proceedings under the DSO Act, and indeed any person other than the respondent who disclosed the conviction to the court would commit an offence, unless the disclosure was for the purposes 'of any court of law'.

111 I do not propose to devote time to considering the manifest difficulties of interpretation of that statutory scheme, none of which were debated on either side at the hearing of this appeal, but the effect, I think, may be taken to be that the fact of the Children's Court convictions would not be admissible in the proceedings under s 17 of the DSO Act unless their disclosure was for the purpose of the court determining that application; unless, in other words, the proper interpretation of the provisions of the DSO Act to which I have referred is that there was an obligation and power to inform the court of those convictions and an obligation upon the court to have regard to them.

112 I am acutely conscious of the fact that the ground of appeal does not assert that McKechnie J erred in holding that evidence of those Children's Court convictions was inadmissible. Particular (b) is limited to an argument about the admissibility of the evidence of the offending behaviour of the respondent which led to those convictions. Neither party submitted that the proper interpretation of the legislative provisions to which I have referred was that the evidence of the convictions was admissible because, under s 190(2) of the Young Offenders Act, it involved disclosure for the purposes of a court of law.

113 However, I am of the opinion, having regard to the terms of all of the provisions to which I have referred, including particularly what follows from the operation of s 38(4) of the DSO Act, that the evidence of these Children's Court convictions was admissible in the proceedings under the DSO Act within the exception in s 190 of the Young Offenders Act. There was an obligation to disclose them to the CEO, an obligation upon the CEO to disclose them to the psychiatrists, an obligation upon the psychiatrists to have regard to them in making their reports, and therefore necessarily to disclose them in those reports, and an obligation upon the court under the various provisions of s 7(3) to which I have referred, to have regard to the reports and to the fact of the convictions.

114 If that view be right, this is not a case of the implied repeal of the provisions of the Young Offenders Act by the provisions of the DSO Act. The provisions sit together in a way which makes the evidence admissible, thereby advancing the purposes of the DSO Act. However, in view of the nature of the argument before us, I would not finally determine that that is an appropriate view of the legislative provisions but rather, I would consider whether, without reference to the convictions, the evidence of the offending behaviour as a child was admissible.

DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- GTR [2008] WASCA 187 (8 September 2008)

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DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- GTR [2008] WASCA 187 (8 September 2008)

Legislation Cited (7)

Cases Cited (20)