State of New South Wales v Vincent

The history of the relevant legislative provisions

The term "total sentence" appears twice in the Act, in ss 13B(3) and (5). It was introduced into an earlier form of the Act, being the Crimes (Serious Sex Offenders) Act 2006 (NSW), by the Crimes (Serious Sex Offenders) Amendment Act 2010 (NSW). However, it is appropriate to consider the meaning of the term in the context of the purpose of that legislation since it was originally enacted in 2006.
In the second reading speech for the Crimes (Serious Sex Offenders) Bill 2006, the Minister for Police, the Hon Carl Scully, explained the need for the legislation as follows: "One particular concern that is dealt with by this scheme relates to a handful of high-risk, hard-core offenders who have not made any attempt to rehabilitate whilst in prison. These offenders make up a very small percentage of the prison population, yet their behaviour poses a very real threat to the public. These concerns are compounded where the offender never qualifies for parole and is released at the end of their sentence totally unsupervised. The bill addresses this problem by allowing this small group of high-risk offenders to be placed on extended supervision, or, in only the very worst cases, kept in custody." (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 March 2006 at 21730)
It is apparent that the legislative intention when the Act was first passed was that a CDO would be available as an option only if, by the time that the head sentence had expired, the offender had not qualified for parole and therefore would be released back into the community, and without supervision. The relevant provision of the Crimes (Serious Sex Offenders) Act 2006 (NSW) at the time was as follows: "14 Application for continuing detention order (1) The Attorney General may apply to the Supreme Court for a continuing detention order against a sex offender who, when the application is made, is in custody in a correctional centre: (a) while serving a sentence of imprisonment by way of full-time detention: (i) for a serious sex offence, or (ii) for an offence of a sexual nature, or (b) pursuant to an existing continuing detention order, referred to in this Part as his or her current custody. (2) An application may not be made until the last 6 months of the offender's current custody."
In the original Act, the definitions of "serious sex offence" and an "offence of a sexual nature" did not include Commonwealth offences; it only applied to state offences.
In 2009, the New South Wales Sentencing Council published a report examining the operation of the Crimes (Serious Sex Offenders) Act 2006, and made recommendations for its amendment: New South Wales, Sentencing Council, Penalties Relating to Sexual Assault Offences in New South Wales (Volume 3, May 2009) ("the Report"). One of the concerns the Report identified was that it was unclear when the six month period in s 14(2), and in s 6(2), which was the counterpart provision for ESOs, commenced. The Report recommended that the Act be amended to make clear that it referred to a period of six months from the expiration of the "total sentence". It hypothesised that the rationale for not permitting an intervention before that time, was that other legislative schemes ensured that the community was not endangered by an offender who had been conditionally released before the expiration of the total sentence. The Report stated: "Application brought within the last six months of custody or supervision 9.20 The issue of the actual date from which the six-month period commences needs to be clarified in the legislation. Section 6(2) of the NSW Act provides that an application for an ESO can not be made until the last six month's [sic] of the offender's current custody or supervision and s 14(2) provides that an application for a CDO cannot be made under until the final six months of the offender's current custody. 'Current custody' refers to the offender serving a sentence of imprisonment. 9.21 It seems clear that the intention of the NSW Act was to make provision for supervision or detention of a serious sex offender to ensure the safety of the community in circumstances when there were no other lawful means of detaining the offender in custody or supervising the offender in the community. In other words, the Act was to take effect once the offender's sentence had expired. 9.22 It seems clear therefore that the final six months of the offender's current custody or supervision refers to the final six months of the offender's total sentence after which time there would be no further restriction on the offender's liberty if an application under the Act was not made. 9.23 Therefore if a serious sex offender is in the final six months of his or her non-parole period this cannot be said to be the final six months of his or her current custody. The offender still has a period (and sometimes a considerable period) of his or her sentence to serve which may be in custody or, if released on parole, would be under supervision in the community. The Crimes (Administration of Sentences) Act 1999 (NSW) (the CAS Act) makes adequate provision for the protection of the community such that there is no work for the NSW Act to do. The State Parole Authority (SPA) may not release an offender unless it is in the public interest to do so. If the SPA forms an intention to grant parole the CAS Act provides that the Commissioner or the State may make a submission opposing release which the SPA is bound to take into account. If the SPA nevertheless decides that it is in the public interest to release the offender on parole, the offender is then serving the remainder of his or her sentence under supervision. If the offender does not comply with the conditions of his or her parole order then the offender's parole will be revoked and he or she will return to custody to continue serving his or her sentence in a correctional centre. 9.24 If a serious sex offender is serving a sentence of less than three years then his or her release at the expiration of the non-parole period is more certain but the final six months of the non-parole period can still not be said to be the final six months of his or her current custody. The offender's parole may be revoked prior to release on the application of the Commissioner and it will be revoked if the offender is untreated and is deemed to be a risk to the community. If the offender is released on parole then again he or she is serving his or her sentence under supervision and if the offender fails to comply with his or her parole order he or she will be returned to custody to complete his or her sentence in detention. 9.25 While there are some sentences which do not require supervision of the offender following his or her release on a court-based parole order, it is inconceivable that the type of offender who would attract the interest of the NSW Act would be serving such a sentence. 9.26 There is no need for the provision of the NSW Act to be enlivened when the CAS Act provides adequate protection for the community. The NSW Act is enlivened only when the CAS Act has finished its work and the offender would otherwise have no restrictions. 9.27 As the NSW Act is unclear as to what constitutes the final six months of the current custody of supervision it should be amended to make it clear that it refers to the final six months of the head or total sentence."
The New South Wales government accepted the Report's recommendation, as was evidenced in an amendment to s 14 which was introduced by the Crimes (Serious Sex Offenders) Amendment Act 2010 (NSW): "14 Application for continuing detention order (1) The State of New South Wales may apply to the Supreme Court for a continuing detention order against a sex offender who, when the application is made, is in custody in a correctional centre: (a) while serving a sentence of imprisonment by way of full-time detention: (i) for a serious sex offence, or (ii) for an offence of a sexual nature, or (iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or (b) pursuant to an existing continuing detention order, referred to in this Part as his or her current custody. (2) The State of New South Wales may apply to the Supreme Court for a continuing detention order against a person who is subject to an extended supervision order or an interim supervision order if: (a) the person is found guilty of an offence under section 12, or (b) because of altered circumstances, adequate supervision of the person cannot be provided under an extended supervision order or an interim supervision order. (2A) An application under subsection (1) may not be made more than 6 months before: (a) the end of the offender's total sentence, or (b) the expiry of the existing continuing detention order, as appropriate. (2B) An application under subsection (2) in respect of a person who is serving a sentence of imprisonment by way of full-time detention may not be made more than 6 months before the end of the person's total sentence."
In the second reading speech for that amending Act, the Attorney General of New South Wales, the Hon John Hatzistergos, acknowledged the government's acceptance of the Sentencing Council's recommendation and explained: "… the phrase 'last six months of the of the offender's current custody', which is currently found in subsection (2), is replaced in the new subsection (2A) by the following: an 'application may not be made more than six months before the end of the offender's total sentence or the expiry of the existing continuing detention order'. This amendment clarifies that the phrase 'last six months of the offender's current custody or supervision' refers to the final six months of the offender's head or total sentence, as was recommended by the Sentencing Council and confirmed in the statutory review. The new subsection (2B) allows an application under section (2) to be made at any time, that is, whether the offender is in custody or not. However, if the offender is serving a sentence of imprisonment by way of full-time detention, then an application may not be made more than six months before the end of the person's total sentence." (New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 November 2010 at 28045)
In 2013, the Crimes (Serious Sex Offenders) Act 2006 was amended and renamed as the Crimes (High Risk Offenders) Act 2006, which is the current name of the Act. The amendments expanded the legislative scheme to allow for the continued detention and extended supervision of high risk violent offenders. Section 14(2A) was essentially retained in the same form, at s 13B(3) in relation to high risk sex offenders, and at s 13C(3) in relation to high risk violent offenders.
In 2017, the scheme was again expanded by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW), to introduce relevant Commonwealth offences into the definitions of "serious sex offence" and an "offence of a sexual nature". In addition, ss 5I and 13B were introduced in their current form, thus merging the temporal provision concerning the filing of the application of a CDO for both types of high risk offenders into s 13B(3) of the Act.
The first proposition in the plaintiff's argument that the term "total sentence" refers only to the custodial element of a sentence, is that it "picks up" the expression "sentence of imprisonment" in ss 13B(2) and (5), in particular, that the term is a convenient means of referring to the custodial element of the ultimate sentence fashioned through the meshing of concurrent or consecutive, or partly concurrent and partly consecutive, sentences when one or more of them is a sentence of the type identified in ss 13B(2)(a)(i)-(iii).
The interpretation of "sentence of imprisonment" which is advanced by the plaintiff, meaning only the custodial part of the sentence, would entail two quite different meanings being attributed to the same expression in different parts of the Act, since its meaning in the context of s 5I refers to the whole sentence and therefore includes any part of that sentence that is served in the community, as highlighted by State of New South Wales v TT and State of New South Wales v NW.
In D151 and Others v New South Wales Crime Commission (2017) 94 NSWLR 738; [2017] NSWCA 143 at [72], Simpson JA (Beazley ACJ agreeing), said: "It is a general (though readily rebuttable) rule of statutory construction that, where a word is used consistently in a single piece of legislation, it should be given a consistent meaning unless there is reason to do otherwise: Registrar of Titles of the State of Western Australia v Franzon (1975) 132 CLR 611 at 618; [1975] HCA 41."
The words in question should be construed consistently with the language and terms of the statute, and by reference to the language of the instrument viewed as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (McHugh, Gummow, Kirby and Hayne JJ).
The question then, is whether the textual and purposive interpretations advanced by the plaintiff as to the meaning of "sentence of imprisonment" in s 13B of the Act provide a sufficient reason to depart from the meaning of the same expression as it has been found previously, and accepted by the plaintiff to be, in s 5I of the Act. This must be viewed against the backdrop of the Act viewed as a whole.
I note that the plaintiff's argument, that the term "total sentence" means only the part of the sentence served in custody, is at odds with the everyday meaning of the word "total", which is defined in the Macquarie Dictionary to mean "constituting or comprising the whole; entire; whole" and in the Australian Oxford Dictionary to mean "complete, comprising the whole". The term "total sentence" appears in the Terrorism (High Risk Offenders) Act 2017 (NSW) at ss 37(2) and (3), in a similar context to its use in the Act. It does not appear in current New South Wales legislation relating to appeals or sentencing (other than the Drug Court Act 1998 (NSW) at s 5A(1)(b)(ii)), or in Commonwealth sentencing legislation. However, as a matter of judicial notice, I take into account that the use of the term "total sentence" in New South Wales sentencing procedure is commonplace; it is understood and applied in criminal courts as meaning the whole of a sentence, being the sum of the non-parole period and the balance of the term.
The extrinsic material of the second reading speeches and the Report containing the recommendation of the New South Wales Sentencing Council, as acknowledged in the Attorney General's second reading speech, confirms the ordinary meaning of the term "total sentence" and the purpose of the legislation: ss 33 and 34 of the Interpretation Act 1987 (NSW). As is apparent from the historical overview, the term "total sentence" was introduced in 2010 to clarify that the time within which the application must be filed is to be measured back from the date that the whole sentence expires, thus underscoring the proposition that an application for a CDO cannot be filed more than nine months from the date of expiration of the whole sentence of imprisonment, including any component served as conditional liberty in the community.
The plaintiff's purposive approach to the interpretation of the words "total sentence", and "sentence of imprisonment" overlooks the similarities between conditional liberty pursuant to a recognizance release order for a Commonwealth offence, and parole for a state or Commonwealth offence. When an offender is released to parole, the community is protected by the supervision of parole and the state's authority to exercise powers to remedy breaches of conditions of parole, including the power to return the offender to custody to serve the balance of parole. Release subject to a recognizance release order for a Commonwealth offence protects the community in a similar fashion. If an offender breaches a recognizance release order, the options before the court dealing with the breach include returning the offender to prison to serve "that part of each sentence of imprisonment fixed under paragraph 20(1)(b) that the person had not served at the time of his or her release": s 20A(5)(c)(i) of the Crimes Act 1914.
As noted earlier, the legislative scheme is intended to supplement, rather than override, existing safeguards and mechanisms, in order to avoid the situation of an offender who had failed to qualify for parole by the time that the head sentence was to expire being released at all or without supervision, if they pose an immediate and significant threat to the safety of the community. Under the legislative scheme, a CDO or ESO could then be considered.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Legislation Cited (13)

Cases Cited (14)

Cited By (2)