This application of the State of New South Wales (the plaintiff), brought against Mr Bilal Haouchar (the defendant) in unusual - perhaps extraordinary - circumstances, was placed before me on the morning of 25 June 2018. Because of the contention of the plaintiff that the matter is one of great urgency, and in order to permit the parties to pursue their rights as they see fit, I have provided this judgment this morning; it will be understood by the reader that it is more concise than it otherwise might have been.
By way of a summons filed in this Court as long ago as 7 November 2014, the plaintiff seeks proposed order 2, that being the making of an interim detention order (IDO) for a period of 28 days against the defendant, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). In the alternative, an interim supervision order (ISO) for the same period is sought by way of proposed order 4. Mechanistic orders to give effect to either the primary or ancillary order are also pursued.
The remarkable delay between the filing of the originating process of the plaintiff and the hearing of the matter by me is explained by the following background.
[2]
Background
As at 7 November 2014, the defendant was incarcerated, and serving the balance of parole with regard to a sentence of imprisonment that had been imposed upon him in 2008 by Hidden J for the offence of manslaughter. As I understand it, at that stage, he was serving sentences for other offences as well.
There was no dispute before me that, accordingly, the defendant was a "detained offender", as defined by s 13B(2)(a)(i) of the Act, at the operative time. The result of that is that the plaintiff was entitled to apply for a continuing detention order (CDO) against him, pursuant to s 13B(1)(a) of the Act.
Nor was it disputed that, on the same date, the defendant was also a "supervised offender", as defined by s 5I(2)(a)(i) of the Act. Accordingly, an application for an extended supervision order (ESO) was also able to be made by the plaintiff against the defendant on the relevant date.
The matter came before Wilson J on 12 December 2014. As her Honour's judgment in State of NSW v Haouchar [2015] NSWSC 798 shows, as at that date, the last of the sentences of imprisonment that the defendant was then serving, the balance of parole, would expire on 23 December 2014. The defendant was also incarcerated, however, pursuant to being refused bail on two separate charges of murder and attempted murder. In other words, the actual date upon which the defendant would or could be released from custody was by no means clear.
Her Honour rejected the submission of the plaintiff that any IDO or ISO could commence from an unspecified date, that being whichever day upon which the defendant may eventually be released from custody: [3] of the judgment.
Her Honour took the view that the Act in its then form did not permit such an order. Accordingly, neither an IDO nor an ISO was made against the defendant. Her Honour did, however, make orders pursuant to s 15(4) of the Act appointing experts to examine the defendant. At the hearing before me, I was told that those orders were never acted upon, and no resulting reports were ever created.
The final order made by her Honour was to the effect that the matter could be relisted to the list of the Court on one day's notice.
Upon the expiry of his balance of parole, the defendant spent a number of years refused bail on the pending charges of murder and attempted murder. During those years, no application was made by either party to have the matter relisted.
On 13 June 2018, the pending criminal proceedings were placed before Hidden J. On that occasion, the Crown (by that I mean, the Director of Public Prosecutions for NSW) presented an indictment containing two new alternative counts of being an accessory after the fact to the murder and being an accessory after the fact to a shooting with intent to murder. The defendant pleaded guilty to those two alternative counts, and those pleas were accepted by the Crown in full satisfaction of the indictment.
Hidden J sentenced the defendant two days later on 15 June 2018: see R v Haouchar [2018] NSWSC 885. His Honour accepted the proposition that, since the expiry of his balance of parole on 23 December 2014, the defendant had spent approximately three and a half years in custody solely referable to the two offences to which he had pleaded guilty. In the event, bearing in mind that period of incarceration, his Honour imposed a two year bond upon the defendant, which included a condition that he submit to supervision and guidance from the Parole Service.
I infer that the defendant was released later on the day of 15 June 2018. He was at liberty, curtailed only by the conditions of the two year bond, from that date until the date of the hearing before me two days ago.
In short, the threshold question of statutory construction that arose before me was whether, in the circumstances, there was any power reposed in me by the Act to make an IDO or an ISO. Both counsel agreed with my thought that that threshold question should be resolved before there were any embarkation, contingent or otherwise, on the evaluative judgments called for by s 18A of the Act (with regard to a IDO), or s 10A of the Act (with regard to an ISO).
[3]
Power to make an interim detention order?
I turn first to the question of whether, in the circumstances of which I have given a thumbnail sketch, there is any power to make an IDO against the defendant.
As I have recounted, there was no dispute before me that, at the time the application was made, the defendant fell within the definition of a person against whom such an application could be brought, pursuant to s 13B of the Act, in that he was a detained offender as defined by that section. The separate question, however, which was litigated before me, was whether the defendant is currently a person against whom an IDO may be made.
Section 18A of the Act in its entirety is as follows:
18A Interim detention order
The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court:
(a) that the offender's current custody (if any) will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order.
For the purposes of this threshold question, s 18A(b) is to be disregarded. The question of statutory construction becomes: what is the true meaning of s 18A(a) of the Act? The answer to the question is central because, clearly enough, as at now the defendant is not in custody.
Neither party took me to the legislative history of the section (or any other part of the Act); accordingly, as a matter of procedural fairness to each of them, my judgment is not based on such analysis.
The plaintiff submits that the phrase "(if any)" qualifies the requirement that the "current custody" of the defendant will expire in the future. The submission is that it matters not that the sentence that the defendant was serving as at 7 November 2014 expired years ago, and furthermore that the defendant has been at liberty for a period of about ten days.
During oral submissions, counsel for the plaintiff accepted that the logical extrapolation of his position is that a person could have proceedings pursuant to the Act commenced before him or her whilst serving a sentence in 2010; be released in 2013; and have the orders pressed in 2025.
It was also conceded that there is no known case, since the commencement of the Act in 2006, in which an order diminishing or depriving the liberty of a person in the position of the defendant has been made.
I do not accept the submission of the plaintiff with regard to the meaning of that phrase. To my mind, the objective intention of Parliament, by using the words "(if any)" within s 18A of the Act, is to be understood in the following context.
Section 13B of the Act in its entirety is as follows:
13B Application for continuing detention order
(1) An application for a continuing detention order may be made only in respect of:
(a) a detained offender, or
(b) a supervised offender.
(2) A detained offender is an offender who, when the application for a continuing detention order is made, is in custody (referred to in this Part as the offender's current custody):
(a) while serving a sentence of imprisonment:
(i) for a serious offence, or
(ii) for an offence of a sexual nature, or
(iii) for an offence under section 12, or
(iv) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment (whether under a law of this State or another Australian jurisdiction) referred to in subparagraph (i), (ii) or (iii), or
(b) under an existing continuing detention order, emergency detention order or interim detention order.
(3) An application for a continuing detention order in respect of a detained offender may not be made more than 9 months before:
(a) the end of the offender's total sentence, or
(b) the expiry of the existing continuing detention order,
as appropriate.
(4) A supervised offender is an offender who, when the application for a continuing detention order is made, is an offender in lawful custody or under supervision:
(a) under an extended supervision order or an interim supervision order who:
(i) has been found guilty of an offence under section 12 in respect of that order, or
(ii) because of altered circumstances, poses an unacceptable risk of committing a serious offence if the continuing detention order is not made, or
(b) whose obligations under an extended supervision order or an interim supervision order have been suspended, or
(c) under an interim detention order.
(5) An application in respect of a supervised offender who is serving a sentence of imprisonment may not be made more than 9 months before the end of the person's total sentence.
(6) The Supreme Court must not make a continuing detention order on an application referred to in subsection (4) (a) (ii) unless it is satisfied that circumstances have altered since the making of the extended supervision order or interim supervision order and those altered circumstances mean that there is an unacceptable risk of the offender committing a serious offence if the continuing detention order is not made.
(7) Without limiting the matters that the Supreme Court may take into account for the purposes of subsection (6), it may take into account the failure to comply, or an allegation that the supervised offender has failed to comply, with any requirement of an extended supervision order or interim supervision order.
It can be seen that two classes of persons may be the subject of an application for a CDO: a "detained offender" or a "supervised offender".
In a nutshell, the former is a person actually in custody serving a sentence of imprisonment for one of a number of kinds of offences; or a person who is actually in custody pursuant to a CDO, an IDO, or an emergency detention order (EMDO): s 13B(2) of the Act.
Separately, it can be seen that a CDO can be applied for against a person who is not actually in custody at the time the application was made. As can be seen, such a person is a supervised offender, and includes people who are "under supervision" and subject to an ESO or ISO, in certain circumstances; for example, those to be found in s 13B(4)(a)(ii) of the Act.
I interpolate that it was agreed between the parties that, that the defendant is not, and never has been, a supervised offender, as defined by s 13B(4) of the Act, because he has never been subject to an ESO, an ISO, or an IDO.
Contrary to the submission of senior counsel for the plaintiff (and indeed the alternative submission of senior counsel for the defendant), I consider that the phrase "current custody (if any)" in s 18A(a) is intended to ensure that an IDO can be made against a person who is not and was not subject to "current custody", because he or she is not and was not a "detained offender", but who was, at the time of commencement of the proceedings, a supervised offender, as defined by s 13B of the Act.
To express that analysis more succinctly, I believe that the phrase "(if any)" appears in s 18A(a) of the Act in order to ensure that one appreciates that an IDO can be made against a supervised offender, as defined in s 13B(4) of the Act.
In other words, I cannot accept the broad reading for which the plaintiff contended, not only with regard to this component of s 18A(a), but also with regard to the Act generally. Over the past decade, the Act has never been understood to apply in the way for which the plaintiff now contends, and I do not understand it in that way. To be clear: I do not accept that this Court is empowered to deprive (by a CDO or IDO) or diminish (by an ESO or ISO) the liberty of citizens months or years after the focus of deprivation or diminution of liberty, which permitted an application to be made pursuant to the Act in the first place, has come to an end.
Furthermore, I believe that the contrast between the precise text of s 18A and s 10A of the Act (the latter of which I shall discuss in more detail in another context shortly) supports my interpretation that the purpose of the phrase "(if any)" in s 18A(a) is to ensure that supervised offenders (as defined s 13B) can be the subject of an IDO.
That is because only one class of person can be the subject of an ESO: "supervised offenders", as defined by s 5I(2) (confusingly, that definition is more expansive than the separate definition of the identical phrase in s 13B). And yet two classes of persons can be the subject of a CDO: a detained offender, and a supervised offender (as I have said, differently defined for that purpose).
In other words, I consider that the phrase "(if any)" appears in s 18A, and does not appear in s 10A, because the former section applies to persons who were not the subject of current custody as defined by s 13B(2) at the time the application was made. In contrast, the latter section applies only to those who fall within the encompassing definition to be found in s 5I of the Act.
Separately, and to conclude my analysis of the first submission of the plaintiff, as recently as in Minogue v Victoria [2018] HCA 27, the High Court at [47] reaffirmed the rule of statutory construction that penal statutes, and other statutes that curtail liberty "should be construed strictly", and referred to Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134; [1980] HCA 49 at [8]. To the extent that there is ambiguity in the meaning of s 18A(a), it accordingly must be resolved in favour of the liberty of the defendant, and other persons in his position.
The second submission of the plaintiff about s 18A is that it can be compared with s 17, the first subsection of which is as follows:
17 Determination of application for continuing detention order
(1) The Supreme Court may determine an application under this Part 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
(The remainder of the section deals with the evaluative judgment to be undertaken when considering whether to make a CDO.)
The point was made that there is no "temporal fetter" to be found in s 17 (with regard to the making of a CDO). Accordingly, it was said, it would be absurd to impose, by way of construction of s 18A, such a fetter with regard to the lesser curtailment of liberty by way of the making of an IDO, when there is no such fetter with regard to the greater, by way of the making of a CDO.
It is perfectly true that there is no explicit fetter to be found in s 17 of the kind that I consider is to be found in s 18A of the Act. But in my opinion, there is an undoubted fetter to be found in all of those sections of the Act that precede s 17 within Part 3, commencing with s 13A and concluding with s 15.
In my opinion, read in that context, s 17 of the Act evinces no intention on the part of Parliament to deprive persons of liberty by way of the imposition of a CDO, unless they are, at the time of its imposition, subject to a period of deprivation or diminution of liberty by way of one or more of the forms of either or both enumerated in s 13B of the Act.
In other words, I do not accept that the bald terms of s 17 on its face assist the argument of the plaintiff about the true meaning of s 18A.
Again, to the extent that there is any ambiguity about the true meaning of s 17 of the Act, it must be resolved in favour of liberty.
The third submission of the plaintiff was that the phrase "will expire" in s 18A should be interpreted to include a period of "current custody" as defined in s 13B(2) that has expired. That reading was said to be consistent with the overarching purpose of the Act, which is to protect members of the community from various classes of persons who are evaluated to be at risk of reoffending.
That general proposition about the purpose of the statute may be accepted. But, as I have said, I believe that Parliament has created a regime whereby that process is to occur with regard only to a circumscribed class of persons who have been subject to particular kinds of deprivation or diminution of liberty, strictly circumscribed by the Act itself.
And in any event, it is one thing to say that an ambiguity is to be resolved in accordance with the purposes of the legislation within which the assertedly ambiguous text is to be found. It is quite another to change, by way of broad temporal expansion, the clear grammatical tense of an essential pre-condition to the making of an order such as an IDO.
In short, the "current custody" of the defendant, as defined in s 13B of the Act, and which exposed him to the making of a CDO against him originally, expired years ago. He neither was nor is a supervised offender as defined in s 13B of the Act. My interpretation of s 18A(a) of the Act is that it operates, in those circumstances, to preclude the making of an IDO against him.
[4]
Power to make an interim supervision order?
The second aspect of the threshold question that I resolve is whether I am empowered to make an ISO against the defendant. That requires consideration of s 10A of the Act, which is as follows:
10A Interim supervision order
The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court:
(a) that the offender's current custody or supervision will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
As I have said above, it can immediately be seen that the problematic phrase "(if any)" does not appear in s 10A(a), and accordingly the debate before me was less complex than that about s 18A(a) of the Act.
The phrase "current custody or supervision" leads one back to s 5I of the Act, which in its entirety is as follows:
5I Application for extended supervision order
(1) An application for an extended supervision order may be made only in respect of a supervised offender.
(2) A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's current custody or supervision):
(a) while serving a sentence of imprisonment:
(i) for a serious offence, or
(ii) for an offence of a sexual nature, or
(iii) for an offence under section 12, or
(iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or
(b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.
(3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole.
As I have said, it is significant that the definition of a "supervised offender" to be found in s 5I(2), within Part 2 of the Act, is different from the definition of the same phrase in s 13B(4), within Part 3 of the Act.
As I have also said, there was no controversy between counsel that, for the purposes of s 5I, in November 2014 the defendant was a supervised offender as there defined, because as at the date of the application, he was serving a sentence for a serious offence.
Nor was it controversial that he is no longer a supervised offender as there defined because, although he is subject to a two year bond, his liberty is neither removed nor diminished in any of the multitude of ways enumerated in s 5I(2) and s 5I(3) of the Act.
The simple submission of the plaintiff with regard to s 10A was merely to repeat the proposition that the tense of "will expire" can be interpreted to include a person whose "current custody or supervision" has expired.
For the reasons given above in the other context, I do not accept that submission. Accordingly, I do not consider that I am empowered to make an ISO against the defendant.
[5]
Conclusion
In my opinion, I am empowered neither to order an IDO nor an ISO against the defendant. Those being the only orders that were pressed before me, I decline to make them.
At the hearing two days ago, counsel agreed that, once the threshold question was resolved, a logistical way forward could be charted with regard to any further orders that were sought to be pressed by the plaintiff, and also with regard to any ancillary orders sought by either party.
[6]
Orders
For the foregoing reasons, I make the following orders:
(1) The application of the plaintiff for an interim detention order against the defendant, Bilal Haouchar, is refused.
(2) The application of the plaintiff for an interim supervision order against the defendant, Bilal Haouchar, is refused.
[7]
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Decision last updated: 27 June 2018