State of New South Wales v Kaiser

9 Lindner v Wright (1976) 14 ALR 105 Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28 Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134 State of New South Wales v Donovan (2015) NSWLR 389; [2015] NSWCA 280 State of New South Wales v Kaiser [2021] NSWSC 646 State of New South Wales v Kaiser (Preliminary) [2018] NSWSC 1971 SZTAL v Minister for Immigration & Border Protection; SZTGM v Minister for Immigration & Border Protection [2017] HCA 34 Tannous v State of New South Wales [2020] NSWCA 261 Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 The Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507; [2019] HCA 35; Wentworth Securities Ltd v Jones [1980] AC 74 Texts Cited: P Herzfield and T Prince: Interpretation (2nd Ed), Thomson Reuters, 2020 Category: Principal judgment Parties: State of New South Wales (Appellant) Brian Kaiser (Respondent) Representation: Counsel: J Emmett/R McEwen (Appellant) S A Beckett/C Winnett (Respondent)

Solicitors: Crown Solicitor for NSW (Appellant) Legal Aid NSW (Respondent) File Number(s): 2021/194026 2021/197122 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Civil Citation: [2021] NSWSC 646 Date of Decision: 08 June 2021 Before: Garling J File Number(s): 2018/154935

[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.]

HEADNOTE [This headnote is not to be read as part of the judgment] In 2007 the respondent pleaded guilty to a charge of manslaughter and was sentenced to imprisonment for 10 years and 11 months, to expire on 28 June 2018. In January 2016 the respondent escaped from custody. While at large, he committed a series of offences, for which he was sentenced to a further term of imprisonment. In December 2016 the respondent was released on parole. While on parole, the respondent committed further offences (malicious damage, intimidation, and choking, suffocating or strangling - "the 2017 offences"). He was arrested, returned to custody, and his parole was revoked. He was ordered to serve the balance of the manslaughter sentence, which would now (taking into account the period during which he was unlawfully at large) expire on 10 July 2018. For the 2017 offences the respondent was sentenced to three partially accumulated, partially concurrent, terms of imprisonment (the last of which will expire on 9 December 2022). The sentences imposed in respect of the malicious damage and intimidation offences were specified to commence during the currency of the manslaughter sentence and to extend beyond the expiration of that sentence. The sentence imposed in respect of the intimidation offence expired on 9 December 2019. The sentence imposed in respect of the choking offence (imprisonment for four years with a non-parole period of 2 years and 6 months) commenced on 10 December 2018 and will expire on 9 December 2022. By Amended Summons filed on 5 December 2018 the State of NSW ("the State") sought an extended supervision order against the respondent. An extended supervision order may be made under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") if four criteria stated in s 5B(a)-(d) are met. The criteria include: "(b) the person is a supervised offender (within the meaning of section 5I)"; and "(c) an application for the order is made in accordance with section 5I". A supervised offender is defined in s 5I(2) as an offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for, relevantly, a serious offence (s 5I(2)(a)(i)) or for another offence for which the sentence is being served concurrently with or consecutively upon, or partly concurrently with and partly consecutively upon, the sentence for the serious offence (s 5I(2)(a)(iv)). Because manslaughter is a serious offence for the purposes of s 5I(2)(a)(i), for the duration of that sentence the respondent met the criteria for "supervised offender". During the currency of the sentences for the malicious damage and intimidation offences the respondent continued to meet the criteria for "supervised offender" because he was serving sentences within s 5I(2)(a)(iv) of the Act. After his sentence in respect of the intimidation offence expired on 9 December 2019, the respondent no longer met those criteria, although he was in custody serving a sentence for the last of the 2017 offences (choking). That sentence did not come within s 5I(2)(a). As the Amended Summons was filed at a time when the respondent was serving sentences within s 5I(2)(a), he was, at that time, a "supervised offender". The application was determined on 8 June 2021. The respondent was then no longer serving any sentence that would bring him within s 5I(2)(a) as a "supervised offender". Three questions for separate determination under UCPR r 28.2 were formulated. Question 1 asked whether, as at 8 June 2021, the respondent was a "supervised offender". The primary judge answered that question in the negative. The principal reason for that conclusion was that there is an overlap, or duplication, in paragraphs (b) and (c) of s 5B and that to conclude that it was not necessary that the person against whom the order is sought to be serving a sentence of imprisonment within s 5I(2)(a) at the time of determination would render s 5B(b) "otiose". Interpreting s 5B(b) as requiring that the offender be serving a sentence of imprisonment within s 5I(2)(a) gave separate operation to that paragraph. On the basis of that construction the primary judge held that he did not have power to make an extended supervision order, and, accordingly, dismissed the Amended Summons. Question 3 asked whether the Court had jurisdiction to make an extended supervision order commencing on a date earlier than 9 December 2022. The primary judge answered this question by holding that the earliest date on which an extended supervision order could commence was 10 December 2022 (the day after the expiration of the last of the sentences imposed for the 2017 offences). By Notice of Appeal filed on 6 July 2021 the State challenged the answers given to Questions 1 and 3. By Ground 1 of the proposed appeal the State asserted error in the answer given by the primary judge to Question 1. By Ground 2 of the proposed appeal the State asserted error in the answer given by the primary judge to Question 3. Held by Simpson AJA (Bell CJ and Beech-Jones JA agreeing), upholding the appeal: In relation to Question 1: Section 5B(b) requires that a person against whom an extended supervision order is sought be a "supervised offender" within the meaning of s 5I at the time the order is made. Section 5I defines a "supervised offender" as an offender who meets the criteria stated in s 5I(2) "when the application for the order is made". The respondent came within the s 5I(2)(a) criteria at the time the application was made and was, accordingly, at the time of determination, a "supervised offender" for the purposes of s 5B(b). The legislative history supports that conclusion. The answer given by the primary judge to Question 1 was therefore incorrect. The correct answer is: yes, as at 8 June 2021, the respondent was, for the purposes of s 5B(b) of the Crimes (High Risk Offenders) Act 2006, a supervised offender within the meaning of s 5I(2)(a) of that Act: [101]. An alternative route to the same conclusion is to read the reference to "section 5I" in s 5B(c) as a drafting, or cross-referencing, error intended to be to s 6. Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, applied. Lindner v Wright (1976) 14 ALR 105; Envy Trading v Queensland [1998] 1 Qld R 413; Dome Resources NL v Silver (2008) 72 NSWLR 693; [2008] NSWCA 322; Taylor v Owners-Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9; Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100; Wentworth Securities Ltd v Jones [1980] AC 74, referred to. In relation to Question 3: The answer given to Question 3 is incorrect. By s 10(1) of the Act an extended supervision order commences when it is made, or when the offender's "current custody or supervision" expires, whichever is the later. An offender's "current custody or supervision" is given, in s 5I(2), a particular meaning, referable to any of the four categories of sentence identified in s 5I(2)(a). The respondent's "current custody or supervision" within that definition expired on 9 December 2019. Any extended supervision order would commence on the day it was made.

Judgment

1. BELL CJ: I have had the benefit of reviewing the careful and lucid analysis of Simpson AJA and agree with it and her Honour's orders.
2. BEECH-JONES JA: I agree with Simpson AJA and the orders her Honour proposes.
3. SIMPSON AJA: These proceedings come before the Court by way of application under s 22(3) of the Crimes (High Risk Offenders) Act 2006 (NSW) and s 103 of the Supreme Court Act 1970 (NSW) for leave to appeal, following determination by Garling J ("the primary judge") in the Supreme Court of three questions referred for separate decision pursuant to Uniform Civil Procedure Rules ("UCPR") r 28.2: State of New South Wales v Kaiser [2021] NSWSC 646. Each question concerned the construction of a provision of the Crimes (High Risk Offenders) Act ("the Act"). It is therefore convenient to begin with reference to the relevant statutory provisions.

The relevant statutory provisions

1. The long title of the Act is: An Act to provide for the supervision and detention of high risk sex offenders and high risk violent offenders; and for other purposes.
2. The objects of the Act are stated in s 3 as: (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.
3. Jurisdiction is conferred on the Supreme Court ("the Court") to make orders for the supervision in the community (s 9(1)) or detention (s 17(1)) of convicted offenders, extending beyond the terms of imprisonment imposed by sentencing courts: Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 at [47]; Tannous v State of NSW [2020] NSWCA 261 at [14], [19].
4. Part 1A (ss 5B-5D) of the Act spells out the means by which the objects of the Act are sought to be achieved. By s 5B the Court is empowered to make an order (an "extended supervision order") for the supervision in the community of a person; by s 5C the Court is empowered to make an order (a "continuing detention order") for the continued detention of a person. Other than by reference to s5B and 5C the terms "extended supervision order" and "continuing detention order" are not defined. The terms are essentially self explanatory.
5. Nowhere in the Act are "high risk offender", "high risk sex offender" or "high risk violent offender" defined. From other provisions in the Act to which I will come it can be seen that a "high risk offender" is an offender (as defined in s4A) who, the Court is satisfied to a high degree of probability, poses an unacceptable risk of committing another serious offence if not kept under supervision (s 5B(d)) or in detention (s 5C(d)).
6. "Offender" is defined in s 4A as a person who: (a) is of or above 18 years of age, and (b) has at any time been sentenced to imprisonment (not including a suspended or quashed sentence) to be served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) following the person's conviction for a serious offence.
7. "Serious offence" is defined in s 4 as: (a) a serious sex offence, or (b) a serious violence offence. "Serious sex offence" and "offence of a sexual nature" are defined in s 5, primarily by reference to specific provisions of the Crimes Act 1900 (NSW) ("Crimes Act"), the Crimes Act 1914 (Cth) and the Criminal Code (Cth). As such offences do not play any part in the present proceedings it is unnecessary to expand on that definition.

Factual background

1. In 2006 the respondent was charged with murder, alleged to have been committed on 20 March 2006. On 6 July 2007, on arraignment, he entered a plea of not guilty to murder, but guilty to manslaughter. On 10 October 2007 the Crown accepted the plea in discharge of the indictment. On 29 November 2007 the respondent was sentenced to imprisonment for 10 years and 11 months, commencing on 29 July 2007 and to expire on 28 June 2018, with a non-parole period of 8 years and 2 months to expire on 28 September 2015. Because manslaughter is a "serious violence offence" as defined by s 5A(1) of the Act, and, therefore, a "serious offence" for the purposes of s 5I(2)(a)(i), the respondent was, for the duration of that sentence, a "supervised offender" within the meaning of s 5I.
2. On 25 January 2016 the respondent escaped from the correctional centre in which he was held and was at large for some time. As a consequence, the term of his sentence was extended by the period during which he was unlawfully absent from custody: Crimes (Administration of Sentences) Act 1999 (NSW), s 254 ("Administration of Sentences Act").
3. While he was at large the respondent committed a series of offences for which he was, on 5 September 2016, sentenced to an aggregate term of imprisonment of 2 years commencing 25 January 2016 and expiring on 24 January 2018 with a non-parole period of 9 months, which expired on 24 October 2016. On 16 December 2016 he was released on parole.
4. During April and May of 2017, while on parole, the respondent committed further offences (malicious damage, intimidation, and an offence against s 37(1) of the Crimes Act, of choking, suffocating or strangling - "the 2017 offences") and was arrested on 23 May 2017 and returned to custody. None of those offences was a serious violence offence within the s 5A(1) definition. On 26 May 2017 the State Parole Authority revoked the respondent's parole and he was ordered to serve the balance of the manslaughter sentence - which would now (presumably by the operation of s 254 of the Administration of Sentences Act) - expire on 10 July 2018. From that date the respondent ceased to be an offender serving a sentence of imprisonment within s 5I(2)(a)(i) (although, from 11 December 2018, he was an offender serving a sentence of imprisonment that did not come within s 5I(2)(a)).
5. On 11 December 2018 the respondent pleaded guilty to charges for the 2017 offences and was sentenced to three partially accumulated, partially concurrent, terms of imprisonment, the effect of which was a total sentence of 5 years (to expire on 9 December 2022) with a non-parole period of 2 years and 6 months which (by reason of the accumulation) commenced on 10 December 2018 and expired on 9 June 2021. The sentences imposed in respect of the malicious damage and intimidation offences (fixed terms of, respectively, 10 months and 3 months) were specified to commence during the currency of the manslaughter sentence and to extend beyond the expiration of that sentence; they were, therefore, to be served partly concurrently with and partly consecutively upon the manslaughter sentence. During the currency of those sentences the respondent was therefore a "supervised offender" because he was serving a sentence within s 5I(2)(a)(iv) of the Act. The 3 month sentence imposed in respect of the intimidation offence expired on 9 December 2019. That brought to an end the period during which any of the sentences imposed in respect of the 2017 offences was to be served concurrently with or consecutively upon the sentence imposed in respect of the manslaughter offence, and therefore the period during which the respondent was a "supervised offender" within s 5I(2)(a)(iv) of the Act.

The proceedings in the Supreme Court

1. A preliminary hearing of the Amended Summons pursuant to s7(3) of the Act took place on 5 December 2018. On 17 December 2018, being satisfied pursuant to s 7(4) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, Walton J made orders, as required by that subsection, for psychological and psychiatric examinations of the respondent: State of New South Wales v Kaiser (Preliminary) [2018] NSWSC 1971.
2. On 6 May 2021 the State Parole Authority authorised the release of the respondent on parole on 8 June 2021.
3. On the same date (8 June), pursuant to s 7, a final hearing of the Amended Summons commenced before the primary judge.
4. After discussion with counsel the primary judge ordered, pursuant to UCPR r 28.2, that three questions arising out of the application and concerning the construction of provisions of the Act, be separately determined. The questions were formulated as: "(1) Whether, for the purposes of the application of s 5B(b) of [the Act] to [the respondent], the State has shown that [the respondent] is a 'supervised offender (within the meaning of s 5I of [the Act]; (2) Whether, for the purposes of the application of [the Act] to [the respondent], the State has shown that the application for the [extended supervision order] has been made within the last 9 months of [the respondent's] current custody or supervision within the meaning of s 6(1) of [the Act]; and (3) Whether, if the Court has jurisdiction to make [an extended supervision order] and it determines that it is appropriate to so order, such [extended supervision order] can commence on a date earlier than 9 December 2022 when [the respondent's] current sentence expires."
5. The primary judge answered those questions as follows: "(1) No, [the respondent] is not a supervised offender for the purposes of the application of s 5B(b) of [the Act]; (2) Yes; and (3) assuming the court had and exercised the power to make [an extended supervision order], the earliest date upon which [an extended supervision order] can commence in this matter is 10 December 2022."
6. The effect of the answer given to question 1 was that the Court had no power to make an extended supervision order, one of the four cumulative criteria (s 5B(b)) for making such an order not having been met. As a consequence the primary judge dismissed the Amended Summons (UCPR 28.4) and ordered the State to pay the respondent's costs. The State contends that the answer given to Question 1 was incorrect; that, as at 8 June 2021, the respondent was, for the purposes of s 5B(b), a "supervised offender", that the primary judge accordingly was in error in concluding that the Court lacked power to make an order under that section, and that the order dismissing the Amended Summons should be set aside. The respondent contends that Question 1 was correctly answered and that, as at 8 June 2021, the respondent was not a "supervised offender", and could not be made the subject of an extended supervision order and that the order dismissing the Amended Summons was, accordingly, justified, and, indeed, inevitable.

Question 1

1. By s 5B four cumulative criteria must be met before an extended supervision order may be made. Those presently relevant are: "(b) the person [in relation to whom the order is sought] is a supervised offender (within the meaning of s 5I), and (c) an application for the order is made in accordance with s 5I." (There was no issue that the respondent satisfied the par (a) criterion. The answer given to Question 1 precluded consideration of the par (d) criterion).
2. The issue raised by Question 1 turned on the interplay of s 5B(b), s 5B(c), and s 5I of the Act. As set out above, the respondent undoubtedly met the s 5I(2)(a) criteria for the status of "supervised offender" as at 17 May 2018, when the State's application was first filed (because he was serving the sentence for manslaughter), and as at 5 December 2018, when the Amended Summons was filed (because he was serving sentences for "other offences" that were being served partly concurrently with and partly consecutively on, the manslaughter sentence). By the time the application was to be heard, those sentences had expired and, as also set out above, the respondent fell into none of the categories of s 5I(2)(a) that would make him a "supervised offender" and entitle the State under s 5I(1) to make an application for an extended supervision order. The sentence for the s 37(1) offence which the respondent was then serving did not fall within any of the s 5I(2)(a) categories. Nor did he meet any of the criteria for "supervised offender" status provided by s 5I(2)(b). The question was whether it was sufficient that, because he had undoubtedly had the status of "supervised offender" at the time the application was made, he was, as at 8 June 2021, for the purposes of s 5B(b), a "supervised offender", or whether, for those purposes, it was necessary that at the time the application was determined, he be serving a sentence of imprisonment within one or more of the s 5I(2)(a) categories, or be under supervision of one of the kinds identified in s 5I(2)(b).
3. The primary judge (at [53]) discerned two possible ways of interpreting s 5B(b): (i) that it requires that the person against whom the order is sought ("the defendant") be serving a relevant sentence (that is, a sentence in one of the s 5I(2)(a) categories) only when the application is made ("filed") (the interpretation favoured by the State); and (ii) that it is necessary that the defendant be serving a relevant sentence both at the time the application is made, and at the time the Court exercises its discretion to make an order (the interpretation favoured by the respondent).

Question 3

1. Question 3, as framed, was specifically directed to the circumstances of the present case. However, the answer has wider ramifications. The question concerns the commencement date of an extended supervision order. Section 10(1) provides that an extended supervision order commences on the later of two dates: the date the order is made, and the date on which the offender's "current custody or supervision" expires. The primary judge held that the earliest date, in this case, on which an extended supervision order could commence is 10 December 2022. He selected that date as the day following the expiration of the sentence currently being served by the respondent (the sentence imposed in respect of the s 37(1) (choking) offence).
2. The primary judge rejected an argument advanced by the State that s 160A of the Administration of Sentences Act expressly envisages the concurrent existence of an extended supervision order and a parole order. Subsection (1) of s 160A provides that an offender's obligations under a parole order made in respect of a sentence for a NSW offence are suspended while the offender is subject to (inter alia) an extended supervision order.
3. The primary judge held: "83 …the scheme of the [Act] is to provide supervision which extends from the end of the sentence of imprisonment and continues for a period fixed by the Court. … … 87 However, s 160A is not apt to permit an [extended supervision order] to be imposed with respect to the same offence upon which the person is serving their term of imprisonment for which parole may be granted. 88 That is so because the specific terms of s 10(1) of the [Act] provides for an [extended supervision order] to come into effect only once an offender's 'current custody or supervision expires.' This suggests that an [extended supervision order] cannot be effective whilst the offender remains under supervision as one would if subject to a parole order." (emphasis in original)

The present proceedings

1. Section 22(1) of the Act confers a right of appeal to this Court from any determination of the Supreme Court to make or to refuse to make an extended supervision order. By subs (2) an appeal may be on a question of law, a question of fact, or a question of mixed law and fact. By subs (3) an appeal may be made, as of right, within 28 days of the date on which the decision was made, or, by leave, within such further time as this Court may allow.
2. By s 103 of the Supreme Court Act 1970 (NSW) an appeal lies, by leave, from a decision in proceedings in the Court of any question or issue ordered to be decided separately from any other question or issue. The answers given to the questions in this case are decisions within s 103.
3. The State contended (and the respondent did not dispute) that, pursuant to s 22 of the Act, and because the answer to Question 1 resulted in a refusal to make the extended supervision order sought, an appeal lies as of right with respect to the answer to that question. What purported to be a Notice of Appeal was filed by the State on 6 July 2021, outside (by two days) the 28 day period allowed by s 22(3). Given that leave is required in any event, it is appropriate to read the Notice of Appeal as an application for leave to appeal, either under s 22(3) of the Act (in respect of the answer given to Question 1), or s 103 of the Supreme Court Act (in respect of the answer given to each question). Leave to appeal should be granted.
4. By Ground 1 of the appeal the State asserts error in the construction given by the primary judge to s 5B(b) of the Act and his answer to Question 1, and his consequent dismissal of the Amended Summons. By Ground 2 of the appeal the State asserts error in the answer given by the primary judge to Question 3. Each question devolves into an issue of statutory construction.

Relevant principles of construction

1. The relevant principles of statutory construction are well established and may be stated briefly. They are: 1. it is the duty of the Court to give the words of the statutory provision under consideration the meaning that the legislature is taken to have intended them to have. While, ordinarily, the grammatical meaning and the intended meaning will coincide, it is not always so: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28 at [78]; 2. in the interpretation of a statute the Court is to prefer a construction that would promote the purpose or object underlying the Act to one that would not achieve that purpose: Interpretation Act 1987 (NSW), s 33; 3. the starting point is always the text of the provision to be construed. But the text of the provision to be construed is not to be taken in isolation. It is to be read "in the context" of the legislation as a whole. "Context" is not to be treated as something to which resort may be had when consideration of the text alone fails to yield a satisfactory answer: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48 per Mason J; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 per Brennan CJ, Dawson, Toohey and Gummow JJ, both quoted by Gageler J in SZTAL v Minister for Immigration & Border Protection; SZTGM v Minister for Immigration & Border Protection [2017] HCA 34 at [37]; The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507; [2019] HCA 35; 4. courts must strive to give meaning to every word of the provision to be construed (Project Blue Sky at [71]) and should "strain against a construction which gives no work whatsoever to legal language": Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423 at [77] per Leeming J; if possible, some meaning and effect should be given to all the words used in a statute: The Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11, cited by Mason CJ in Chu v Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 12-13; [1992] HCA 64 ("the presumption against surplusage"). The rule is subject to the qualification that it may be displaced if there is good reason to do so: Lim, at 13. 5. a statute will not be construed so as to abrogate or curtail certain human rights or freedoms unless such an intention is clearly manifested by unambiguous language that indicates that the legislature has turned its mind to the rights or freedoms in question and has consciously decided upon abrogation or curtailment ("the principle of legality"); Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [19], per Gleeson CJ; 6. legislation that affects personal liberty will be given a strict construction: Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134 at 139; [1980] HCA 49, and the authorities there cited.

Application of the principles

1. It cannot be doubted (and the contrary was not suggested) that the Act clearly manifests in unambiguous language a legislative intention to abrogate or curtail, in certain circumstances, personal liberty, which Gleeson CJ in Al-Kateb described as the most basic of human rights and freedoms. It does so in its most extreme form by s 5C and Pt 3 (continuing detention orders), and, in a lesser but nevertheless significantly intrusive way, by s 5B and Pt 2.
2. But that is not all that the Act does. It is not solely directed to the abrogation or curtailment of freedom; it has among it express objects the protection of the community and the promotion of rehabilitation of serious sex and violent offenders: see State of New South Wales v Donovan (2015) NSWLR 389; [2015] NSWCA 280 at [58]-[60]. Community safety is, by s 9(2) made the paramount consideration in the determination whether or not to make an extended supervision order.
3. Contrary to the (somewhat muted) submission of the respondent, there is, therefore, limited (if any) scope for the application of the principle of legality as stated in Al-Kateb. On one view it may, as expressed by French CJ in Lee, call for a construction of s 5B that effects "no more than is strictly required by clear words or necessary implication". On the other hand, in the words of Gageler and Keane JJ in the same case: "314 … The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. … '[i]t it is of little assistance, in endeavouring to work out the meaning of parts of a [legislative scheme] to invoke a general presumption against the very thing which the legislation sets out to achieve'.", citing ASIC v DM Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7 at [43] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ: see also Kassam v Hazzard [2021] NSWCA 299 at [83]-[90], [162]-[167]; (2021) 396 ALR 302; (2021) 311 IR 233.

The construction issues

1. At issue is the proper construction of s 5B(b) of the Act, specifically the words "within the meaning of s 5I". So to state the issue disguises its complexity.
2. The specific question is whether the words "within the meaning of s 5I" in s 5B(b) incorporate the words in the chapeau to s 5I(2) "when the application for the order is made" (to which I will refer as "the parenthesised words"). So to construe "within the meaning of s 5I" in s 5B(b) would mean that it will be both necessary and sufficient to satisfy the s 5B(b) criterion that the defendant was serving a sentence of imprisonment within any of the s 5I(2)(a)(i)-(iv) categories or under supervision within s 5I(2)(b) at the time the application is made, regardless of whether that continued to be the case at the time of determination of the application.
3. The alternative construction, adopted by the primary judge and favoured by the respondent, is that the parenthesised words are not intended to form part of the definition and should be excised when s 5I(2) is applied as a definition of "supervised offender". If that were the proper construction, then, by reason of the use of the present tense in par (b) of s 5B, that criterion would be satisfied only if the defendant were serving a sentence of imprisonment in one or more of the s 5I(2)(a)(i)-(iv) categories at the time of determination of the application, or under supervision within 5I(2)(b) notwithstanding that he or she was serving such a sentence or under such supervision at the time the application was made.
4. The primary judge, in my opinion, correctly identified (at [53]) the two available alternative constructions of s 5B(b). Also correctly, in my opinion, his Honour concluded (at [61]) that par (b) requires that the defendant be a "supervised offender" at the time the application is determined. That, however, masks the real issue, which is what constitutes a "supervised offender" for the purposes of par (b). That is the area of contention.
5. In the balance of [61] the primary judge assumed (incorrectly, in my opinion) that a defendant is a "supervised offender" only if he or she is serving a sentence of imprisonment in one of the s 5I(2)(a)(i)(iv) categories, or is under supervision in one of the categories specified in s 5I(2)(b) at the time of determination of the application.

Ground 2: Question 3

1. Both the State and the respondent agreed that the answer given to Question 3 is incorrect, although they advanced different reasons for so concluding.
2. The parties agreed that the error in his Honour's reasoning lies in his overlooking that s 10(1) of the Act is concerned with the expiration of "the offender's current custody or supervision". That phrase has a particular, defined, meaning. As set out above in relation to Question 1, "current custody or supervision" for the purposes of Part 2 of the Act is defined in s 5I(2) as custody or supervision referable to any of the four categories of sentence identified in pars (a)(i) to (iv) of s 51.
3. The respondent was, from 9 June 2021, subject to the sentence for the s 37(1) offence that will not expire until 9 December 2022, and on parole (under supervision) with respect to that sentence. However, that "custody or supervision" was not referable to any of the categories of sentence within the s 5I(2) definition; he was, therefore, as at 8 June 2021, not subject to any "current custody or supervision" within the meaning of Part 2 of the Act. Accordingly, an extended supervision order, if made, would, by s 10(1), commence on the date it was made.
4. The respondent's position was that s 10(1), read with s 9(1)(a), confers a discretion on the court to determine the date on which an extended supervision order, if made, will commence.
5. I reject that contention. It is true that the jurisdiction conferred by s 9(l) is discretionary (the exercise of the discretion being conditioned on the requirements of Pt 2 of the Act), but the language of s 10(1) is clear and unambiguous. It leaves no room for discretionary variation of the commencement date for which the subsection provides. There is nothing in s 10(1) (or any other provision of the Act) that suggests that the Court may depart from the commencement date so specified.
6. The orders I propose are: 1. Pursuant to s 22(3) of the Crimes (High Risk Offenders) Act 2006 (NSW) the State of New South Wales has leave to appeal against the order of the Supreme Court of 8 June 2021 dismissing the Amended Statement of Claim filed on 5 December 2018; 2. Appeal upheld; orders 2 and 3 of the Supreme Court of 8 June 2021 set aside; answer to Question 1 set aside. In lieu thereof, Question 1 be answered "Yes". 3. Pursuant to s 103 of the Supreme Court Act 1970 (NSW) the State of New South Wales has leave to appeal against the decision of the Supreme Court of 8 June 2021 in answer to Question 3 of the Questions for separate determination under UCPR 28.2; 4. Appeal allowed: answer to Question 3 set aside. In lieu thereof, Question 3 be answered: Yes.

Amendments 08 June 2022 - Punctuation in [64], [101], [103]. [123] 24 June 2022 - Change to order No 2 24 June 2022 - Change to order No 2 12 October 2022 - [121] "legislature" should read "legislative" 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: 12 October 2022