Lynn v State of New South Wales

rdson (No 2) [2011] NSWSC 276 State of New South Wales v Scott David Lynn [2015] NSWSC 665 State of New South Wales v Thomas (Final) [2011] NSWSC 307 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 Wacando v Commonwealth [1981] HCA 60; 148 CLR 1 Warren v Coombes (1979) 142 CLR 531 Wilde v State of New South Wales [2015] NSWCA 28 Williams v The Queen (1986) 161 CLR 278 Category: Principal judgment Parties: Scott David Lynn (Appellant) State of New South Wales (Respondent) Representation: Counsel: H Dhanji SC; S Hall (Appellant) W Abraham QC; N Kelly (Respondent)

Solicitors: Legal Aid NSW (Appellant) Crown Solicitor's Office (Respondent) File Number(s): 2015/00256264 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: State of New South Wales v Scott David Lynn [2015] NSWSC 665 Date of Decision: 29 May 2015 Before: Hidden J File Number(s): 2013/238886

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[This headnote is not to be read as part of the judgment] The appellant was convicted of the indictable offence of manslaughter. On 7 November 2008, the appellant was sentenced to imprisonment for 7 years with a non-parole period of 4 years 6 months. On 17 December 2013, Hidden J ordered, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), that the appellant be subject to a high risk violent offender extended supervision order for a period of three years. The appellant was further ordered to comply with certain conditions scheduled to the court's order. The appellant filed summons seeking leave to appeal on 1 September 2015. The appellant contended that the trial judge erred in law in his construction of the phrase "unacceptable risk" in s 5E(2) of the Act. In particular, the appellant contended that the proper construction of the phrase "unacceptable risk" entails consideration of the consequences for an offender of making an order, including the impacts on the individual's personal liberty.

Beazley P, Basten JA (Gleeson JA agreeing): (1) Sections 5F and 5G provide for the kinds of orders that may be made under the Act. The Court's determination of an application for such an order is made under s 9: [47], [48], [110]-[111]. (2) Pursuant to s 9, the court has a discretion whether to make one or other of the orders for which ss 5F and 5G provide or to dismiss the application: [48], [149], [112]-[113]. (3) A finding that a person poses an "unacceptable risk" within the meaning of s 5E(2) is the gateway to the power to make an order of the kinds specified in ss 5F and 5G: [55], [148]. State of New South Wales v Donovan [2015] NSWCA 280 at [24] (4) The meaning of the phrase "unacceptable risk" is a question of statutory construction, to be determined having regard to its context and purpose: [49]-[61]. Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47]; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 at [28]; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] (5) The purpose of the Act may be found, inter alia, in the objects provisions of the Act. Whether this is so will depend upon the provisions of the objects clause, as statutory objects are not always harmonious. The objects provisions of an Act cannot control clear statutory language: [54]. Russo v Aiello [2003] HCA 53; 215 CLR 643 at [5]; Pitt & Badgery Ltd v Sydney Municipal Council (1908) 24 WN (NSW) 203 at 204; Birch v Allen [1942] HCA 17; 65 CLR 621; Wacando v Commonwealth [1981] HCA 60; 148 CLR 1 at 16; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 78. (6) The right of an offender to his or her personal liberty at the expiry of the sentence of imprisonment being served is not relevant to the determination of whether a person poses an "unacceptable risk" for the purposes of s 5E(2). [44], [55]-[58], [128], [148]. (7) In determining whether and what order to make, the Court is required to take into account the factors specified in s 9(3), as well as any other matter it considers relevant. This may include the fact that the proposed order will place constraints on the individual's liberty and privacy: [48], [131], [149].

Basten JA: (8) The nature of the appeal contemplated by s 22 of the Act is that of an appeal by way of rehearing. On an appeal pursuant to s 22 of the Act, the Court has the power to make such order as could have been made at first instance, if thought appropriate: [81]-[94], [95]-[97].

(Gleeson JA agreeing): (9) The exercise required by s 5E in considering an application for an extended supervision order can be considered as four interlocking steps. The steps are to identify (i) the nature and seriousness of the risk posed by the offender with respect to further serious violence offences, (ii) the appropriate conditions which might be imposed as part of an extended supervision order, (iii) the likely effect of such an order in removing or diminishing the risk and (iv), if an order is otherwise appropriate, whether there are factors personal to the offender which would militate against making the order: [124], [148] (10) The court will engage in a "balancing exercise" when seeking to impose the least intrusive conditions consistent with its assessment of the risk posed by the offender and a further assessment as to what conditions are likely to be effective. The interests of the offender in liberty and privacy are properly treated as relevant considerations in ensuring that unjustifiable conditions are not imposed: [129]-[130], [148].

Judgment

1. BEAZLEY P: Scott David Lynn is a "violent offender" within the meaning of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The "serious violence offence" which constituted the index offence was the indictable offence of manslaughter, in respect of which Hidden J, on 7 November 2008, sentenced Mr Lynn to imprisonment for 7 years with a non-parole period of 4 years 6 months. The details of Mr Lynn's criminal history and personal background are otherwise to be found in his Honour's reasons for judgment: State of NSW v Lynn [2015] NSWSC 665.
2. On 17 December 2013, Hidden J made an order pursuant to the Act that Mr Lynn be subject to a high risk violent offender extended supervision order for a period of three years from the date of the order. He was further ordered to comply with conditions set out in schedule A to the court's order. His Honour noted that in accordance with s 10 of the Act, Mr Lynn's obligations under the extended supervision order were suspended for any period that he was in lawful custody.
3. Mr Lynn sought leave to appeal from his Honour's orders. The Court directed that the summons seeking leave to appeal and the appeal be heard concurrently. If the appeal were to succeed, Mr Lynn sought an order that the matter be remitted to a first instance judge of the Supreme Court for redetermination. In addition to a grant of leave, Mr Lynn required an extension of time in which to file his summons.
4. Mr Lynn did not apply for legal aid until 27 February 2014, approximately two weeks after the expiry of the time for filing a summons for leave to appeal: Uniform Civil Procedure Act 2005 (NSW) (UCPR), r 51.10(1)(b). Legal aid was granted in April 2015. Ms Robinson, the solicitor with carriage of the matter at Legal Aid NSW, filed three affidavits in which she explained the delay in the grant of legal aid and in bringing the appeal. Except for a period during which it would appear no attention was given to the matter at Legal Aid NSW, the solicitor with the carriage of the matter from time to time attended to the matter diligently.
5. One matter that caused delay in considering whether legal aid would be granted was the unavailability of the judgment in the matter. Enquiries made to the Court by the Legal Aid solicitor with carriage of the matter revealed that judgment had been delayed during a period when the primary judge was unwell. Once judgment was delivered on 29 May 2015, there were a number of protocols to be observed by Legal Aid NSW, including obtaining independent legal advice, before a final decision was made as to whether to grant legal aid.

Preliminary matters

1. Although an appeal is brought from a court's judgment or orders and not the reasons for judgment, the basis for bringing an appeal is usually founded in the court's reasons. The delay in the court's delivery of its reasons for judgment was in no way the fault of Mr Lynn. Nor was the delay in the grant of Legal Aid attributable to any conduct by Mr Lynn. The only delay for which he was responsible was that relating to his application for legal aid. In my opinion, that delay of a few weeks after Mr Lynn's release was insufficient to disentitle him from the favourable exercise of the discretion to extend time.
2. However, I observe that the affidavit evidence explaining the delay reveals that the processes of Legal Aid NSW are inadequate to ensure the timely filing of appeals in accordance with the Court's rules. This is a matter that should be brought to the attention of the relevant authorities, as observance of the rules of Court, particularly those relating to the time in which proceedings are to be commenced, is vital to the proper administration of justice.
3. A further, and fundamental, consideration in determining whether to grant an extension of time is that the orders made by his Honour on 10 January 2014 imposed significant restrictions on Mr Lynn's liberty. That factor outweighs the short period of delay for which Mr Lynn was responsible. I consider that the time for filing the summons for leave to appeal should be extended until 1 September 2015, when the summons seeking leave to appeal was filed.
4. I also consider, in circumstances where Mr Lynn's liberty is at stake, that there should be a grant of leave to appeal. The respondent did not oppose the grant of leave on either basis. It will thus be convenient to refer to Mr Lynn in these reasons as the appellant. However, for the reasons which follow, I consider that the appeal should be dismissed.

Issues on the appeal

1. The appellant's essential challenge to the primary judge's determination was that his Honour erred in law in his construction of the phrase "unacceptable risk" in s 5E(2) of the Act. On the appellant's argument, the proper construction of that phrase required his Honour, in making an order under the Act, to take into account that the prior custodial sentence imposed by the Court having been served in full, the person potentially subject to the order would otherwise be entitled to their personal liberty.
2. A challenge to the conditions imposed by his Honour in respect of the appellant's release on the extended supervision order was abandoned during the course of the hearing.

The legislation

1. The Act, which by reference to its Long Title is, relevantly, an "Act to provide for the supervision and detention of high risk … violent offenders", permits the making of an extended supervision order or an extended detention order for a "high risk violent offender", whose custodial sentence has otherwise expired, or is about to expire.
2. Part 1 of the Act contains preliminary provisions, including a statement of the objects of the Act: s 3, and the definition of terms in the Act: s 4.
3. The primary object of the Act, as stated in s 3(1), is: "… to provide for the extended supervision and continuing detention of … high risk violent offenders so as to ensure the safety and protection of the community."
4. Section 3(2) provides that another object of the Act is to encourage such offenders to "undertake rehabilitation".
5. Section 4 contains the following relevant definitions: "extended supervision order means an order for the supervision of an offender made under section 5C or 5F. … high risk violent offender - see section 5E. high risk violent offender continuing detention order means a continuing detention order made under section 5G. … offender means [relevantly] a violent offender. … serious violence offence - see section 5A. … violent offender means a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction for a serious violence offence." The appellant is a "violent offender" within the meaning of the definition in s 4.
6. Section 5A provides, relevantly: "5A Definition of 'serious violence offence' (1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person …"
7. Section 5E provides: "5E High risk violent offender (1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender. (2) An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence."

Trial judge's reasons

1. As the issue before the Court on the appeal is of narrow scope, it is sufficient to refer to his Honour's reasons briefly.
2. Before the primary judge, the appellant argued that there was a tension between the provisions of subs 5E(2) and (3). That tension was said to arise from: "… the requirement in subs (2) of satisfaction to a high degree of probability that an offender poses an unacceptable risk of committing a serious violence offence, on the one hand, and the provision in subs (3) that there need not be a determination that the risk be more likely than not, on the other": at [67]
3. The primary judge, at [68], rejected that argument, stating: "Any assessment of whether a risk is unacceptable turns not only on the likelihood of the risk coming home, but also on the gravity of the consequences if it does. At issue here is the risk to the community of the commission of a serious violence offence."
4. His Honour, referring to the observation of R A Hulme J in State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118, at [16], that a risk "may be less likely than not but still be an unacceptable risk", continued, at [68]: "What subs (2) requires is that I be satisfied to a high degree of probability that there is a risk of that kind."
5. Hidden J concluded, at [74], that he was satisfied to the requisite degree that the appellant: "… [posed] an unacceptable risk of committing a serious violence offence if not kept under supervision [and that] an extended supervision order [was] necessary to ensure the safety and protection of the community, as well as to encourage [the appellant] to undertake rehabilitation: s 3 of the Act."

Appellant's submissions

1. The appellant submitted that ss 5E, 5F and 5G are interrelated provisions that confer a discretion on the court to make an extended supervision order: s 5F; or a continuing detention order: s 5G. The discretion to make either order is enlivened if, and only if, the person is a "high risk violent offender": s 5E. The appellant contended that in determining whether to make an order, the finding that a person is a high risk offender does not mandate that an order be made under ss 5F or 5G. Rather, under those provisions the court has a discretion as to whether to make such an order.
2. The appellant further submitted that, in determining whether to make an order, s 9 involved the court in a further discretionary exercise. The appellant contended that, having regard to the considerations for which s 9(3) provides, s 9 appeared to be directed to the test in s 5E(2), that is, the question whether a person posed an "unacceptable risk", rather than being directed to the discretionary power to make an order under ss 5F and 5G. This was so, it was contended, notwithstanding that the considerations required to be taken into account by s 9(3) were not exhaustive.
3. The appellant contended that the non-exhaustive provisions of s 9(3) and the discretionary nature of s 5F were both relevant to the question of "unacceptable risk" for the purposes of s 5E(2). According to his argument, the requirement in s 5E(2) of "satisfaction to a high degree of probability" that the risk be "unacceptable" and the question of "adequacy of supervision" raised by s 5G(1) drew attention to the need to consider all relevant circumstances in determining whether a person was a "high risk violent offender". Those considerations included the fact that any order made under the Act involved an imposition on the liberty of the person, in circumstances where the person had already served, or had almost fully served, the punishment imposed for the offences of which the person had been convicted.
4. In short, the appellant submitted that the right of a person to his or her personal liberty was an inherent aspect of the test of "unacceptable risk" and that this consideration had to be taken into account by the court in its determination of whether a person was a "high risk violent offender" within the meaning of s 5E(2). The determination under s 5E(2) thus involved balancing the interest of the individual in his or her personal liberty with other relevant factors including the safety and protection of the community.

Respondent's submissions

1. The respondent submitted that the correct approach to the determination of whether a person was a "high risk violent offender" within the meaning of s 5E required an evaluation of whether, having regard to the magnitude of the risk that a particular offender will commit a serious violence offence in the absence of a supervision order, and the nature and gravity of the consequences if the risk eventuates, the safety and protection of the community cannot be ensured.
2. The respondent submitted that this approach reflected the ordinary meaning of the phrase "unacceptable risk" when considered in its statutory context and the general purpose and policy of the legislation: see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [24]. The respondent submitted that the purpose of a legislative provision was to be found, inter alia, in the objects clause of the relevant Act and may also be derived from the text of the Act and any relevant extrinsic material: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 at [70].
3. The respondent also submitted that the appellant's reliance on the Western Australian authorities was misplaced, given the different wording of the legislation in that State.

Determination

1. The question raised on the appeal was whether s 5E(2) requires that a person's right to liberty be taken into account in the assessment of whether the person "poses an unacceptable risk" within the meaning of the section. That is a different question from that which was raised before the primary judge. However, the respondent did not object to this question being argued on the appeal and it is appropriate to deal with it.
2. For the reasons that follow, I am of the opinion that the right of an offender to his or her personal liberty at the expiry of the sentence of imprisonment being served is not a relevant consideration in the determination of whether a person poses an "unacceptable risk" for the purposes of s 5E(2). Nor do I consider that the appellant's analysis of the decision making process in determining whether to make an order under the Act is correct. It is convenient to deal with this latter point before dealing with the meaning of "unacceptable risk".
3. As was explained in Cornwall v Attorney-General for New South Wales [2007] NSWCA 374, in relation to an earlier incarnation of the Act: "[18] It is a fundamental principle of criminal law that a person convicted of a crime must be given punishment appropriate to that crime and no more: Veen v. The Queen (1979) 143 CLR 458, Veen v. The Queen (No.2) (1988) 164 CLR 465. Another fundamental principle of criminal law is that, subject to the possibility of appeal, the appropriate punishment is determined once and for all when the person is sentenced for the crime: this is one aspect of a wider principle requiring finality in litigation. Of course, the sentence may, for example by leaving open the possibility for parole, allow for some variation in how it operates, depending on future circumstances. But the appropriateness of the sentence itself cannot later be challenged. [19] Thus if, in addition to appropriate punishment for crimes they have committed, persons are to have their liberty further restricted because of what they might do in the future, this requires justification outside the ordinary principles of criminal law, and outside the ordinary principle that interference with liberty is generally restricted to interference that is deserved by reason of actual criminal conduct. In passing the Act, the New South Wales legislature has determined that, for the protection of the public, there should in specific cases be restrictions of liberty on that basis." (emphases added)

Meaning of unacceptable risk

1. The meaning of the phrase "unacceptable risk" raises, in the first instance, a question of statutory construction. The principles of statutory construction are well settled. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue the plurality in the High Court stated, at [47]: "… the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy." (footnotes omitted)
2. As the respondent pointed out in its submissions, by reference to dictionary definitions, the word "unacceptable" requires context in which, or parameters against which, the "unacceptable" risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is "so far from a required standard, norm expectation, etc as not to be allowed". The Oxford Dictionary defines the word by reference to its antonym "acceptable". Something is "acceptable" if it is "tolerable or allowable, not a cause for concern; within prescribed parameters".
3. What the court, therefore, must find to be unacceptable is the "risk" that the offender poses "of committing a serious violence offence if … not kept under supervision". The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.
4. As the passage cited above from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue makes clear, the context in which words or phrases are used in a statutory provision is relevant to their proper construction. In Certain Lloyd's Underwriters v Cross, French CJ and Hayne J stated, at [28], that it is not to be doubted that the provisions of an Act must be construed in context. Their Honours referred to CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384, where the Court stated, at 408: "It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance."

The interstate authorities

1. As the respondent correctly noted in its written submissions, there are particular problems with any direct application of Western Australian authorities to the construction of the New South Wales legislation. Under the Dangerous Sexual Offenders Act 2006 (WA), an extended supervision order or continuing detention order may be made if an offender is found to be a "serious danger to the community": s 17(1). By virtue of s 7, an offender can only be a "serious danger to the community" if there is an "unacceptable risk" that the offender would commit a serious sexual offence were an order not to be made.
2. The Western Australian Court of Appeal has construed these provisions as providing that "if the court is satisfied that there is an 'unacceptable risk'… then the person will necessarily and automatically be a 'serious danger to the community'": GTR at [21] per Steytler P and Buss JA; see also Williams at [66] per Wheeler JA (Le Miere AJA agreeing). The Court held that the mandatory considerations in establishing a "serious danger to the community" must also be relevant to the identification of "unacceptable risk": GTR at [21]. The court has discretion as to what type of order to make, but no discretion as to whether to make an order: GTR at [40], [51]; see also Williams at [68].
3. The New South Wales Act has a different structure, as explained above. A finding of "unacceptable risk" under s 5E(2) is a prerequisite to the making of an order. However, the Court retains a discretion whether to make an order, subject to differing standards of satisfaction for the respective types of orders that may be made.
4. The appellant also relied upon Nigro v Secretary to the Department of Justice as indicating that the liberty of the person was a relevant consideration in determining whether a violent offender posed an "unacceptable risk".
5. The Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) provides that a court may make a supervision order in respect of an eligible offender only if satisfied that the offender poses an "unacceptable risk" of committing a relevant offence if no order is made and the offender is in the community. Section 9(4) provides that: "In determining whether or not the offender poses an unacceptable risk as set out in subsection (1), the court must not consider the means of managing the risk or the likely impact of a supervision order on the offender."

Other legislative provisions

1. The appellant also relied upon the use of the phrase "unacceptable risk" in the Bail Act. Pursuant to s 19(1) of that Act, bail must be refused if the relevant bail authority "is satisfied, on the basis of an assessment of bail concerns … that there is an unacceptable risk". A "bail concern" is one or more of the matters specified in s 17(2) that a bail authority must assess before making a bail decision. Those matters are a concern that the applicant for bail will: fail to appear at any proceedings for the offence; commit a serious offence; endanger the safety of victims, individuals or the community; or interfere with witnesses or evidence.
2. Section 18 of the Bail Act prescribes the only matters that a bail authority is to consider in the assessment of bail concerns. The prescribed matters include: questions going to the nature of the alleged crime; the strength of the Crown case; the bail applicant's history, including any violent history and any non-compliance with bail, and assessment of the likelihood of a custodial sentence being imposed; and, pursuant to para (m), "the need for the accused person to be free for any other lawful reason".
3. In that context, s 19(1) requires bail to be refused if there is "an unacceptable risk". An "unacceptable risk" is defined in s 19(2) by a reference to four prescribed integers: a risk that the accused person, if released from custody, will fail to appear at any proceedings for the offence; commit a serious offence; endanger the safety of victims, individuals or the community; or interfere with witnesses or evidence.
4. It will be immediately apparent that the assessment of an "unacceptable risk" in the context of a bail authority's determination as to whether to grant bail is both context specific and prescriptive. It provides no assistance to the question of the proper construction of the phrase "unacceptable risk" in s 5E(2).
5. Finally, I would add that I have not found the High Court's reference in M v M to a balancing act to be of particular assistance in determining the proper construction of the statutory phrase "unacceptable risk". Whilst it is correct, as the High Court in Fardon v Attorney General (Qld) observed, at [225], by reference to M v M, that the "process of reaching a predictive conclusion about risk is not a novel one", that observation does not relate to or compel the construction of the phrase for which the appellant contends.

Conclusion

1. Accordingly, I would propose the following orders:
2. Extend the time for filing the summons for leave to appeal until 1 September 2015;
3. Grant leave to appeal;
4. Dismiss the appeal.
5. BASTEN JA: The applicant seeks to challenge a decision of Hidden J in the Common Law Division determining that he was a high risk violent offender and subjecting him to an extended supervision order under the Crimes (High Risk Offenders) Act 2006 (NSW) ("High Risk Offenders Act"). [1]

Current status of applicant

1. The Court raised in the course of the hearing a concern that neither the legal representatives of the applicant nor those appearing for the State had thought it proper to place before the Court any evidence as to the present status of the applicant (being in custody) or the consequence of making the order sought (namely, setting aside the extended supervision order). There were three separate issues which appeared not to have been adequately considered. The first was the nature of the appeal to this Court which, for reasons explained below, is an appeal by way of rehearing. The second was a failure to address the powers of the Court deriving from s 22 of the High Risk Offenders Act. The third was the consequences of an order setting aside the extended supervision order.
2. If the effect of setting aside the extended supervision order would be to take away the legal basis of any proceedings for its transgression which may have resulted in penal consequences for the applicant, it was important to know whether there had been such proceedings. Thus, if there had been breaches which involved criminal offences, were custodial sentences imposed for the breach of the order or for the further criminal conduct?
3. The third issue involved factual matters which were not put before the Court, but which could have been significant whether or not the appeal was by way of rehearing. Because the appeal should be dismissed for other reasons, it is not necessary to address the third issue further. In other circumstances it might have been important, with the result that there would have necessarily been an adjournment of the proceedings, with consequential delay. It is appropriate, however, to deal with the first two matters, before turning to the grounds of appeal.

Nature of appeal

1. It is convenient to start with the jurisdictional issue. The extended supervision order was made under the High Risk Offenders Act. With respect to offenders who have committed a "serious sex offence" or a "serious violence offence" (as defined in s 5A) the Supreme Court has power to make orders for continuing detention or extended supervision after the completion of a sentence. (The applicant was found to fall within the latter category and further reference to provisions relating to sex offenders is unnecessary.) Such orders may be made with respect to a "high risk violent offender", as defined in s 5E. [2] No application was made for his continuing detention, but only for supervision within the community. Nevertheless, the nature of the supervision may be both intrusive and extensive.
2. Whether a particular person falls within the category of "high risk violent offender" depends on an opinion formed by a Supreme Court judge, "to a high degree of probability", that the offender poses "an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision." [3] The required state of satisfaction is a precondition to the exercise of the power, which requires the exercise of discretionary judgment, both as to whether such an order is made and as to the nature of the supervision.
3. This brief outline of the statutory context is important in determining the nature and scope of the appeal. The High Risk Offenders Act has a specific provision for appeal to this Court. 22 Right of appeal (1) An appeal to the Court of Appeal lies from any determination of the Supreme Court to make, or to refuse to make, an extended supervision order, continuing detention order or emergency detention order. (2) An appeal may be on a question of law, a question of fact or a question of mixed law and fact. (3) An appeal against the decision of the Supreme Court may be made, as of right, within 28 days after the date on which the decision was made or, by leave, within such further time as the Court of Appeal may allow. (4) The making of an appeal does not stay the operation of an extended supervision order, continuing detention order or emergency detention order. (4A) If the Court of Appeal remits a matter to the Supreme Court for decision after an appeal is made, the extended supervision order, continuing detention order or emergency detention order the subject of the appeal continues in force, subject to any order made by the Court of Appeal. (4B) Without limiting any other jurisdiction it may have, if the Court of Appeal remits a matter to the Supreme Court for decision after an appeal is made, the Court of Appeal may make an interim order revoking or varying an extended supervision order, continuing detention order or emergency detention order the subject of the appeal. (5) This section does not limit any right of appeal that may exist apart from this Act.

Powers of this Court on appeal

1. Section 22 touches on the powers of this Court on an appeal only peripherally and then confusingly. No doubt the Court has powers to dismiss the appeal, in the event that no error is established, or uphold the appeal and set aside the decision made by the primary judge. That is at least consistent with an appeal being available based on a question of law, fact or what is described as "mixed law and fact". The question is whether, error having been established, the Court may make such order as it thinks fit, or must then remit the matter to a judge in the Division.
2. Remittal is clearly envisaged by subs (4A) and (4B). The confusion arises because subs (4A) provides that upon remittal the order under appeal will continue in force, subject to any order made by this Court. However, unless the Court sets the order aside, there would be no point in remitting it to the Division. Subsection (4B) states that this Court may "make an interim order revoking" an extended supervision order. Revocation can hardly be interim and, as with subs (4A), there is no purpose in a remittal unless the order has been revoked or set aside. Although ineptly expressed, it is likely that the intention of these provisions was to empower the Court, if not able finally to dispose of the proceedings, to make an interim order itself imposing supervision or continuing detention until the matter could be dealt with by a judge in the Division.
3. Given the broad bases upon which an appeal may be brought, the section should be understood to confer on this Court a power to make such order as could have been made in the Division, if thought appropriate. The significance of this conclusion is that both parties should give careful attention to any up-dating evidence which may need to be placed before this Court in the event that the appeal is successful, so that this Court may make an order in substitution for that set aside, other than dismissal of the State's application.

Extension of time

1. It is troubling that the appeal from the extended supervision order, which was to last three years, has been heard more than two years after it was made. The lapse of time is excessive. Very little of it is due to steps taken in this Court. The summons seeking leave to appeal was apparently filed on 1 September 2015, although the chronology records that it was uplifted and replaced by an amended summons filed on 12 October 2015, with submissions for the applicant. The respondent's submissions were filed on 15 December 2015 and the matter was listed for hearing on 26 February 2016.
2. The primary judge's reasons for judgment were published on 29 May 2015, more than 17 months after the orders were apparently made. (The frontsheet of the published judgment records the orders as having been made on 29 May 2015, but that is clearly wrong.) The Court's record of the orders shows that they were entered on 10 January 2014. It also records that they were made on that date which is also clearly wrong. In the first paragraph of the reasons, the primary judge stated that the extended supervision order was made on 17 December 2013. The parties are of the same view.
3. The delay in entering the order was unfortunate but explicable, given the closeness of the Christmas and New Year holiday period to the making of the order. The incorrect recording of the date on which the order was made is not explained. Nor is the delay in providing reasons.
4. Of immediate concern, because relevant to the extension of time, is the delay in seeking to commence an appeal.
5. The applicant applied for legal aid on 27 February 2014, and was granted aid in April 2014. It may be accepted that the initial grant was limited to considering the merit of an appeal. The solicitor having the carriage of the matter asserted that numerous attempts were made to ascertain whether and if so when reasons would be forthcoming. However, the first such inquiry was not made until 5 February 2015.
6. The difficulties faced by a litigant and his or her legal representatives in circumstances where orders are made but reasons are reserved are not to be underestimated. Generally, it will not be possible to make a realistic assessment of the merit of an appeal without reasons for the orders. To allow that assessment to be made is a primary purpose underlying the obligation to give reasons. To make orders without giving reasons involves a failure to exercise the jurisdiction of the court and is, in a generic sense, an error of law.

Statutory scheme

1. The power of the Court to make an extended supervision order is to be found in s 5F of the High Risk Offenders Act. 5F Extended supervision orders for high risk violent offenders (1) The Supreme Court may, on application under this Act, make an order for the supervision of an offender if the offender is a high risk violent offender. (2) An order made under this section is an extended supervision order. (3) An extended supervision order made under this section may also be referred to as a high risk violent offender extended supervision order.
2. The jurisdiction is invoked by an application by the State pursuant to s 5H. The application must be made at a time when the offender is in custody or under supervision: s 5J. The application must be supported by documentation including relevant medical reports assessing the likelihood of the offender committing a further serious violence offence: s 6(3).
3. The Court determines the application either by making an order or dismissing the application: s 9(1). In exercising its power, a number of matters are identified as mandatory considerations. 9 Determination of application for extended supervision order … (3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit … serious violence offences (in the case of an application for a high risk violent offender extended supervision order).

(a) Does "unacceptable risk" incorporate a balancing exercise?

1. There was no dispute that the power conferred on the Court is discretionary; further, the criterion of engagement self-evidently involves an evaluative assessment of the offender and the risk posed to the community. Nor was it in dispute that part of the exercise required of the Court was to take account of the consequences for the offender of making an order, including the intrusion on his liberty and privacy. However, according to the applicant, what was required and was not done by the primary judge, was to factor the effects on him into the assessment of "unacceptable risk" in s 5E(2). His second submission was that these adverse effects were not taken into account by the primary judge at any stage.
2. By way of response, the State submitted that the consequences for the applicant were properly taken into account in considering the exercise of the discretionary power.
3. As far as they went the applicant's submissions should be accepted. First, as accepted by this Court in Donovan, [10] the principle articulated by Mason and Brennan JJ in Williams v The Queen [11] applies: "The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes. The issue in this case is the extent of the power of the police to detain in their custody for questioning a person who has been lawfully arrested."
4. Secondly, it was not any risk of further offending by way of a serious violence offence which could have led to him being characterised as a high risk violent offender. The statute clearly envisages a threshold of acceptable and unacceptable risk.
5. Thirdly, as it is clear that the Court should impose no more intrusive constraints than appears reasonably appropriate to effect the protective purpose, it is appropriate to ask why that is so. The applicant's answer must be that it is so, because it is necessary to balance the restrictions in contemplation against the freedom of movement and lawful conduct and his right to privacy, which he would otherwise be entitled to enjoy in full measure.
6. Fourthly, there is authority which appears to support the applicant's approach.

(b) Interpretation of s 5E

1. To address the applicant's submissions it is necessary to understand the statutory scheme. The statutory language is not easy to apply. Although the defined phrase is "high risk violent offender" the only reference to "high" in the definition is to the "high degree of probability" that the offender poses an unacceptable risk. The high degree of probability qualifies the state of the judge's satisfaction, not the degree of the risk. Indeed, satisfaction and risk are likely to work inversely to each other. Thus, the lower the required level of risk, the easier it will be for the judge to hold a high degree of satisfaction that it exists; the higher the test of what is unacceptable, the harder it will be to satisfy the judge to a high degree of confidence that it exists.
2. Nor is clarity achieved by s 5E(3), referring to whether "the risk of a person committing a serious violence offence is more likely than not". That language appears to concede the inappropriateness of referring in subs (2) to "a high degree of probability", even though that phrase refers to the state of satisfaction, rather than the level of risk.
3. The exercise required by the statute in considering an application for an extended supervision order can be broken down into four steps, which are not appropriately described as temporal stages, one consequent on the other; rather, they interlock. The steps are to identify (i) the nature and seriousness of the risk posed by the offender with respect to further serious violence offences, (ii) the appropriate conditions which might be imposed as part of an extended supervision order, (iii) the likely effect of such an order in removing or diminishing the risk and (iv), if an order is otherwise appropriate, whether there are factors personal to the offender which would militate against making the order.
4. Addressing the first element, the applicant submitted, in effect, that there was a degree of artificiality in separating the adverse consequences for him and dealing with them only in considering whether to make the order. Put in pragmatic terms, the scales would be heavily weighted against him if his interests could only be taken into account after determining that he posed "an unacceptable risk". In other words, once it had been determined that he posed an unacceptable risk to the community, the making of an order was all but inevitable. This, he submitted, constituted a serious diminution, if not a disregard of, his fundamental right to liberty. Accepting that a form of preventative detention or supervision was provided for by the statute, in contrast to the freedoms available under the general law, those freedoms should nevertheless be accorded appropriate weight in determining whether an order should be made.

(c) Case law on assessing "unacceptable risk"

1. A degree of caution is necessary in dealing with the case law. Although similar language is used in legislation in other States, it is rarely appropriate to extract a particular word such as "unacceptable" out of its immediate context. A similar degree of caution should be exercised with respect to the case law in this State, the legislation having changed over time.
2. The dangers of relying on authorities dealing with other legislation are illustrated by a strong statement in favour of the applicant's position taken by Steytler P and Buss JA in Director of Public Prosecutions (WA) v GTR: [13] "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 … or being required to undergo what might be an onerous supervision order)."
3. That was said in the context of the Dangerous Sexual Offenders Act 2006 (WA), s 17(1) of which provided that if the court found the offender to be a serious danger to the community, the court "may" order that the offender be detained or order that the offender be subject to specified conditions. Before reaching the conclusion set out above, Steytler P and Buss JA had referred to the reasoning in an earlier Court of Appeal decision, Director of Public Prosecutions (WA) v Williams. [14] The majority in that case, being Wheeler JA (with whom Le Miere AJA agreed) concluded that, read in its statutory context, "may" meant "must". Having reached that conclusion [15] Wheeler JA continued: [16] "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."

Reasoning of primary judge

1. When the primary judge came to articulate his own approach, he did so in the context of a submission that there was a tension between the requirement of subs 5E(2) and subs 5E(3). The primary judge correctly rejected the submission, which failed to distinguish between the high degree of satisfaction required of the Court and the characterisation of the risk. He continued: [26] "In my view, the relationship between the two subsections is explained by the authorities to which Davies J referred in Richardson, particularly in the passage from the judgment of RA Hulme J in Thomas at [15]-[20] set out above. Any assessment of whether a risk is unacceptable turns not only on the likelihood of the risk coming home, but also on the gravity of the consequences if it does. At issue here is the risk to the community of the commission of a serious violence offence. As RA Hulme J put it, that risk may be less than likely but still be unacceptable. What subs (2) requires is that I be satisfied to a high degree of probability that there is a risk of that kind."
2. The offender's interests will properly be treated as relevant considerations in ensuring that unjustifiable conditions are not imposed and may also influence the ultimate exercise of discretion as to whether or not to make the proposed order. Further, as noted above, his interests are likely to carry weight in considering appropriate conditions. It was in the course of considering the objections raised by the applicant's counsel to particular conditions that the primary judge acknowledged the importance of the effect of the conditions on the offender, not merely as an abstract proposition, but having regard, appropriately, to the likely manner of their application. Thus, after a careful consideration of the conditions which were the subject of submissions [27] the judge concluded: [28] "Undoubtedly, the conditions provide for a strict, indeed onerous, regime. However, I was satisfied that the intensive supervision for which it provides is appropriately directed to the protection of the community and to the closely related aim of the defendant's rehabilitation. I made the order upon the assumption that the regime would be conducted with appropriate flexibility, the conditions being relaxed if the defendant's conduct justified it, and that there would be no question of restrictions being imposed arbitrarily."

Conclusions

1. While the primary judge referred, without criticism, to the approach adopted by Davies J in respect of the "balancing exercise" appropriate to determining an "unacceptable risk", he did not adopt that erroneous approach. That is not what the applicant challenged; indeed, the applicant's case was that the balancing exercise was required and that the trial judge erred in failing to apply it. That challenge must be rejected on the basis that the premise is false.
2. The secondary submission was that the primary judge at no stage had proper regard to the applicant's interests in liberty and privacy. However, the primary judge expressly took those matters into account in dealing with the appropriateness of particular conditions, which had been challenged by the applicant as not being necessary. This aspect of the appeal must also be rejected.
3. The appellant's case was expressly confined to the issues of legal principle which have been addressed above. As those grounds have been rejected, the appeal must be dismissed. Accordingly, the Court should make the following orders: (1) Pursuant to s 22(3) of the Crimes (High Risk Offenders) Act 2006 (NSW), extend the time for filing the summons commencing the appeal to 12 October 2015. (2) Dismiss the appeal.
4. GLEESON JA: I agree with the orders proposed by Beazley P for the reasons given by her Honour. I would add the following observations.
5. It can be readily accepted that orders for the supervision or detention of a "high risk violent offender" involve a significant restriction on the personal liberty of the subject outside the ordinary principles of the common law. The basis for that interference with liberty in specific cases is to be found in Parliament's determination that such orders may be made for the protection of the public. The pre-condition for the making of such orders is that the offender is a "high risk violent offender": s 5E(1), Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). It would subvert the language of the statute if the interests of the offender in liberty and privacy were to be taken into account in the assessment of the threshold of "unacceptable risk" in s 5E(2) of the Act. There is no "balancing" exercise involved in the court's assessment of the threshold of "unacceptable risk".
6. The interests of the offender in liberty and privacy are to be taken into account in the exercise of the court's discretionary power under s 9 of the Act to either make an extended supervision order, or dismiss the application for such an order. Although not explicit in the Act, conceptually the exercise of the discretionary power can be viewed, as Basten JA has suggested, as involving an intermediate stage of considering the appropriate conditions which might be imposed as part of an extended supervision order, before considering whether such an order is otherwise appropriate. I agree with Basten JA that consideration of the possible intrusions on the offender's liberty and privacy are appropriately taken into account at that intermediate and final stage of exercise of the discretionary power. Contrary to the appellant's submissions in the present case, there is nothing inherently artificial in separating the adverse consequences for him and dealing with them only after the threshold assessment of unacceptable risk has been made.

Endnotes

1. State of New South Wales v Scott David Lynn [2015] NSWSC 665.
2. See below at [115].
3. High Risk Offenders Act, s 5E(2).
4. Supreme Court Act, s 101(1)(a).
5. Supreme Court Act, s 75A(3).
6. Supreme Court Act, s 75A(4).
7. High Risk Offenders Act, Sch 2, cl 11
8. [2015] NSWCA 280 (Beazley P, Macfarlan and Leeming JJA).
9. Donovan at [16].
10. Donovan, at [58].
11. (1986) 161 CLR 278 at 292.
12. Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1).
13. [2008] WASCA 187; 198 A Crim R 149 at [27].
14. (2007) 35 WAR 297; [2007] WASCA 206.
15. Williams at [63]-[65].
16. Williams at [68].
17. [2011] NSWSC 276 at [90].
18. [2015] NSWSC 152.
19. [2011] NSWSC 625.
20. [2011] NSWSC 118.
21. [2015] NSWCA 28 (Beazley P, McColl and Ward JJA) at [39]-[45].
22. [2010] NSWSC 1045 at [88].
23. [2013] NSWSC 1003 at [37]-[38].
24. Wilde at [45].
25. Wilde at [54], reflecting a passage set out at [43] from State of New South Wales v Burns [2014] NSWSC 1014 at [59] (Beech-Jones J).
26. Primary judgment at [68].
27. Primary judgment at [75]-[83].
28. Primary judgment at [83].

Amendments 31 March 2016 - [12]: typographical error corrected 01 April 2016 - [2], [117], [129]: typographical errors corrected 26 October 2016 - [149]: removal of "to". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 October 2016