State of NSW v NW

Relevant statutory provisions

Section 5I of the Crimes (High Risk Offenders) Act provides 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.
Section 20 of the Commonwealth Crimes Act 1914 provides as follows: "20 Conditional release of offenders after conviction (1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit: (a) by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: (i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order; (ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his or her prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay): (A) on or before a date specified in the order; or (B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs--by specified instalments as provided in the order; (iii) that he or she will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order; (iv) that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or Example: A condition under subparagraph (iv) could be that the person will undertake a specified counselling, education or treatment program during a specified part of, or throughout, the specified period. (b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1). (1A) If the court specifies under paragraph (1)(a) or (b), as mentioned in subparagraph (1)(a)(iv), the condition that the person will, during the specified period: (a) be subject to the supervision of a probation officer appointed in accordance with the order; and (b) obey all reasonable directions of the probation officer; the court must also specify the condition that the person will not travel interstate or overseas without the written permission of the probation officer. (2) Where a court proposes to release a person by order made under paragraph (1)(a), it shall, before making the order, explain or cause to be explained to the person, in language likely to be readily understood by him or her: (a) the purpose and effect of the proposed order; (b) the consequences that may follow if he or she fails, without reasonable cause or excuse, to comply with the conditions of the proposed order; and (c) that any recognizance given in accordance with the order may be discharged or varied under section 20AA. (2A) A person is not to be imprisoned for a failure, under an order made under subsection (1), to pay an amount by way of reparation, restitution or compensation or an amount in respect of costs. (3) Where a person is released in pursuance of an order made under subsection (1) without sentence being passed on him or her, there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or each offence in respect of which the order is made as there would have been if the manner in which he or she is dealt with had been a sentence passed upon his or her conviction for that offence. (4) Where an order is made under subsection (1) in respect of a person, the court shall, as soon as practicable, cause the order to be reduced to writing and a copy of the order to be given to, or served on, the person. (5) … (6) Paragraph (1)(b) does not apply in relation to a minimum non-parole offence mentioned in section 19AG, or offences that include one or more such minimum non-parole offences. This subsection has effect despite subsection (1) and sections 19AC, 19AE and 19AR (which permit or require a court to make a recognizance release order in certain circumstances). Note: If the court sentences the person to imprisonment for a minimum non-parole offence, it must fix a non-parole period under section 19AG."
Clearly in this case, her Honour sentenced the defendant to imprisonment for 2 years and 3 months but directed by order that he be released, upon giving security of the specified kind, after he had served a period of 15 months of that sentence in accordance with s 20(1)(b) of the Act.

Consideration

The defendant submitted that he is the subject of a recognizance release order and was subject to it when the summons was filed. Adopting the analysis of Walton J in State of New South Wales v TT (Preliminary) [2017] NSWSC 1797, the defendant was serving a sentence of imprisonment for an offence of a sexual nature as a result of being on a recognizance imposed under s 20(1)(a) of the Crimes Act 1914. In addition, it was a condition of his recognizance that he be supervised by Community Corrections. As such he also falls within the term "serving a sentence of imprisonment" in s 5I(3) because of the extended meaning of the word "parole". As a result, the defendant's "current custody or supervision" was pursuant to the recognizance release order imposed by her Honour.
Accepting that analysis, the defendant contended that the summons was filed prematurely. More particularly, the period of the recognizance release order to which the defendant is subject does not end until 18 months after it commenced on 8 May 2018, which is 8 November 2019. In order to comply with s 6(1), the plaintiff was required to file its summons on or after 8 February 2019 but failed to do so.
The plaintiff emphasised that s 6(1) of the Crimes (High Risk Offenders) Act required the application to be filed within the last nine months of an offender's "current custody or supervision" as that phrase is defined in s 5I(2) of the Act. An offender in s 6(1) must necessarily be a "supervised offender" in s 5I and a supervised offender includes an offender who, when the application was filed, was in custody or supervision while serving a sentence of imprisonment for an offence of a sexual nature: s 5I(2)(a)(ii). Therefore, according to this submission, the application must be filed within the last nine months of the defendant's custody or supervision while serving a sentence of imprisonment. This argument proceeds upon the basis that it is the head sentence that determines whether the defendant was under supervision while serving a sentence of imprisonment. Any period of supervision, so called, outside or beyond the expiration of the head sentence is not supervision while serving a sentence of imprisonment.
In support of these contentions, the plaintiff examined the way in which recognizance release orders ought properly to be characterised. It conceded that such an order "is part of the term of imprisonment". For example, the following extract from the judgment of Gibbs ACJ in R v Carngham (1978) 140 CLR 487; [1978] HCA 48 at 492-493 was relied upon in support of that proposition: "There can of course be no doubt that the sentence of imprisonment for two years which was imposed on the respondent in the present case was a sentence within the meaning of the Criminal Appeal Act. The question whether the order that the respondent be conditionally released after 10th October 1977 forms part of the sentence, or is collateral and distinct, although not easy of solution, permits only of brief discussion. In my opinion when a court acting under s 20 (1) passes a sentence of imprisonment and orders the release of the convicted person after he has served a portion of that sentence it is not possible to sever the order for release and to treat it as something separate and distinct from the sentence of imprisonment. Such an order would be meaningless if it were not made in conjunction with the sentence of imprisonment to which it relates. On the other hand the sentence of imprisonment itself would have a materially different effect if it were not for the order for release. In these circumstances it seems to me that the order for release must be treated as a qualification of the sentence of imprisonment and that it is right to regard it as part of the sentence itself. Although there is some ambiguity in the concluding words of s 20 (1), the phrase 'after he has served any portion of his sentence' in my opinion qualifies 'release', not 'order'. That is to say, the order must be made at the same time as the sentence is imposed, and not after portion of it has been served. From the moment when sentence is pronounced the convicted person is entitled to release after he has served portion of his sentence if he complies with the condition of the order. A sentence of two years' imprisonment simpliciter is quite different in its incidence and severity from a sentence of two years' imprisonment coupled with an order for conditional release after some months. The true nature of the sentence imposed can only be ascertained by looking at the order as a whole. If it were thought that doubt remained on this point, it would be permissible, in construing the provisions of the Criminal Appeal Act, to resolve the ambiguity by adopting a construction that would avoid absurdity and injustice. It would in my opinion be absurd, and in some cases unjust, if the Court of Criminal Appeal, whether on an appeal by the convicted person or on an appeal by the Crown, had power to quash a sentence of imprisonment, and to pass another sentence in substitution therefor, but had no power to affect an order that the person convicted be released after serving portion of the sentence originally imposed. It seems to me that it must have been intended by the legislature that if the Court of Criminal Appeal quashed a sentence the result would be to put an end to any order that the person convicted be released after he had served portion of that sentence. In other words the power of the Court of Criminal Appeal to pass a new sentence of imprisonment, whether more or less severe, was not intended to be fettered, or rendered futile by the continued operation of an order for release after the sentence in conjunction with which it was imposed had been quashed."
Walton J followed and applied this decision in TT as follows: "[38] The judgment in Carngham offers clear support for the contentions of the plaintiff in this respect. It is true that their Honours were there considering the expression 'sentence' in a different legislative context. However, it is clear from the foregoing extracts from Gibbs ACJ and Jacobs J that their Honours understood the use of the word 'sentence' in that context to mean a sentence of imprisonment. It may also be noted that the provisions of s 20(1)(b) of the Crimes Act 1914 are in relevantly similar terms to the provisions of s 20(1) of that Act at the time of the judgment in Carngham (albeit that s 20(1) was a composite of the provisions of s 20(1)(a) and (b)). [39] Similarly, in Weetra v Beshara (1987) 46 SASR 484, the Supreme Court of South Australia considered, in the context of an appeal against penalty, a question reserved for the opinion of the Full Court, namely, whether an order for immediate release under s 20(1)(b) of the Crimes Act 1914 was part of a sentence of imprisonment, even though the sentence was not served. Prior J, within whom O'Loughlin J agreed, found (at 490): In this case a sentence of imprisonment has been passed, even if the "true nature" is different from other sentences of imprisonment because of the order for release forthwith. It is a non-custodial sentence of imprisonment, perhaps, but it is still identified by the Commonwealth Parliament as a sentence of imprisonment, "qualified" no doubt, and having "a materially different effect", because of the order for release forthwith, from sentences of imprisonment fully carried into effect, or carried into effect for a period of time and then "suspended" by an order for release. [40] It follows that the expression 'a sentence of imprisonment' does incorporate circumstances where the defendant is released on a recognizance. I agree with the submission of counsel for the plaintiff that the word 'serving' used in s 5I(2)(a) is also consistent with that conclusion. In particular, I agree with the submission that, if 'serving' a sentence of imprisonment is given its ordinary and grammatical meaning of 'to go through' or 'work out', then the defendant 'is serving' a sentence while the recognizance release order is in operation regardless of whether it is the pre- or post-release period."
The issue was also considered by the Supreme Court of the ACT in Fowler v Matias (2006) 204 FLR 115; [2006] ACTSC 106 in these terms: "[16] In Selimoski, the court expressed the view that (as far as the State of Western Australia was concerned) the court should treat the pre-release period in respect of a recognisance release order as a period corresponding to a minimum term or non-parole period fixed under State law. In Walsh, the court recited without adverse comment, the submission of the then Commonwealth Director of Public Prosecutions that the explanatory memorandum revealed the intention of the legislature to replace parole with release upon recognisance."
It is clear that a recognizance release order may contain or impose conditions upon a defendant that extend beyond the term of the head sentence. For example, in R v Smith [2004] QCA 417, McMurdo P in the Queensland Court of Appeal said this: "[9] The sentencing scheme established under the Act draws a clear distinction between the power given to a sentencing court to sentence an offender to a period of imprisonment with release on parole or licence and the suspension of a period of imprisonment after giving security by recognizance that the offender will be of good behaviour for a period not exceeding five years. The clear legislative intent demonstrated by the plain words of s 20(1) and by the sentencing scheme imposed under the Act is to allow a sentencing court to impose a term of imprisonment for a federal offence but to suspend it, wholly or partially, upon the offender giving security by recognizance under s 20(1)(a), including the giving of security by recognizance to be of good behaviour for a period not exceeding five years under s 20(1)(a)(i). There is nothing in the Act that prohibits a judge from imposing a good behaviour bond under an order pursuant to s 20(1)(a)(i) and (2) which extends beyond the period of imprisonment imposed under that order. Whilst s 16F(2)(a) requires the sentencing judicial officer to explain that part of the sentence will be served in the community, s 16F(2)(b) and (c) also requires an explanation of the conditions of the order and the consequences of not fulfilling those conditions without reasonable excuse. Section 16F does not make unlawful an order under s 20(1)(b) releasing an offender upon giving security by recognizance to be of good behaviour for a period less than five years but longer than the period of imprisonment imposed under that order. If an offender breaches the good behaviour recognizance after the expiry of the period of imprisonment, the offender may be dealt with under s 20A(5)(c). It is unnecessary to determine in this case whether s 20A(5)(c)(i) could then be invoked…."
This approach was confirmed by Grove J in the Court of Criminal Appeal in Johnsson v The Queen [2007] NSWCCA 192 as follows: "[30] It was therefore submitted that his Honour erred in requiring the appellant to serve (albeit by way of periodic detention) 75 percent rather than 60 to 66⅔ percent of the total term of three years imprisonment prior to release on recognizance. I would reject this argument. The convention requiring division of term where a non-parole period is specified does not govern the principles to be applied when recognizance release is ordered. It can readily be seen that the proportions are not transferable when the concession (correctly made) is noted that there was no error by his Honour in setting a recognizance of two years duration which extends beyond the head sentence term of three years: R v Smith [2004] QCA 417."
The matter was also discussed in Fowler v Matias as follows: "[12] The Crimes Act distinguishes between fixing a non-parole period and the making of a recognisance release order. As I have said, unless a sentence exceeds three years imprisonment, then a non-parole period is not to be fixed. For a sentence of more than three years, the court is given the option of fixing a non-parole period or making a recognisance release order. [13] In my view, the making of either order requires the application of similar principles. Those principles are based upon the proposition that the full-term of a sentence of imprisonment may not be required to be served where a process of rehabilitation may be effected in a community setting. That requires emphasis to be given on the prospects of rehabilitation and is not a question, as the Magistrate apparently thought, of reducing the sentence that is being imposed. It does, however, require an assessment to be made as to how much of the sentence should be served in the community as opposed to by confinement in a penal institution. That requires the application of the accepted principles of sentencing to determine what ought to be the period of actual imprisonment before determining what period could be served in the community (Power v The Queen (1974) 131 CLR 623). Such an assessment is one that the Magistrate clearly did not embark upon. He erred in not doing so. [14] Any distinction between a recognisance release order and a non-parole period really only relates to the assessment of the time when a person may be released and the conditions to be attached to such release. In the case of a recognisance release order, the court is called upon to assess all of the facts for a determinate date of release and the conditions of such release. In the case of fixing a non-parole period under Commonwealth legislation, the court is called upon to determine the minimum period of time that a person is called upon to serve his or her sentence before a third party, the Attorney General, releases the person to the community. It is the Attorney General who then assesses the appropriate conditions for release. [15] Although there is a difference in view by the Full Court of the Supreme Court of Western Australia in Selimoski v Picknoll (unreported, Supreme Court (FC), WA, No 1088 of 1992, 6 August 1992) and the Victorian Court of Criminal Appeal in R v Walsh (1993) 69 A Crim R 579; 116 FLR 246 as to whether the term of recognisance can exceed the term of sentence, there does not appear to be any difference in respect of the approach to the principles that should govern the making of an order under s 20(1)(b) of the Crimes Act." [Emphasis added]
In the present case, the term of the recognizance release order exceeded the term of the head sentence by six months. It is therefore the characterisation of the defendant's status during that period that is in question.
The plaintiff argued in the light of these authorities and statutory provisions that the defendant will not still be serving a sentence of imprisonment, and accordingly will not be a supervised offender, when his head sentence expires. I agree.
Her Honour specifically and in terms sentenced the defendant to a term of imprisonment of 2 years and 3 months. She did not sentence him to imprisonment for 2 years and 9 months. It seems clear that the defendant will on any view be a supervised offender in the period of three months prior to the expiration of his head sentence. Accordingly, when that sentence expires he will be at liberty in the community subject only to the then subsisting and enduring conditions of the recognizance release order but not vulnerable to the prospect of being returned to custody in order to serve out the balance of his sentence. Whether the defendant would also potentially be liable to imprisonment for breach of any of the enduring conditions is not to the point of his status after the expiration of his sentence. He will not, in my opinion, then be or remain a person who is still serving a sentence of imprisonment. The fact that the defendant may be under "supervision" in the sense that he is subject to continuing conditions imposed as part of his recognizance release order does not mean that he is also therefore still serving a sentence of imprisonment. The authorities that explain that a recognizance release order equates to a sentence of imprisonment during the currency of the term of a sentence do not support the obverse proposition that any period by which a recognizance release order exceeds the term of the sentence of imprisonment is also a sentence of imprisonment.
Moreover, such an interpretation would in my view offend the natural and ordinary meaning of the expression "a sentence of imprisonment". In Botany Municipal Council v Jackson (1985) 2 NSWLR 1 at 6-7, Kirby P offered the following caution: "Are there any judicial observations on the meaning of 'sentence' which cast light upon its use in the present context? I approach earlier decisions and judicial definitions mindful of the warmings recently given in this Court in Canterbury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR 525. As McHugh JA there said, precedents on the meaning of words are no more than judicial dictionaries which assist in determining the meaning of the words used in a different context. Nonetheless, especially in the case of a legal term, there may be help in examining what judges have said is the meaning of that term, making due allowance for the differing contexts. There are many judicial observations on the meaning of the word 'sentence'."
In R v Warfield (1995) 34 NSWLR 200 at 205-206, Hunt CJ at CL described the ordinary meaning of "sentence" as "an order which 'definitely disposes of the consequences of the conviction' or 'a definitive decision by the judge on the punishment or absence of it which is to be the consequences of the conviction'." His Honour referred to Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44; see also R v Novakovic (2007) 17 VR 21 at 29.
In Winsor v Boaden (1953) 90 CLR 345; [1953] HCA 46 at 347 (also cited by Kirby P in Jackson), Dixon CJ said this at 347: "During the argument a number of considerations was canvassed which, it was suggested, tended to support the literal meaning of the words and brought out difficulties which would ensue if the period of six months mentioned in the section were to be made up of independent sentences of smaller terms. But independently of those considerations, we think that what we take to be the literal or natural meaning of the words should be adhered to. The word 'sentence' connotes a judicial judgment or pronouncement fixing a term of imprisonment. A term of imprisonment is the period fixed by the judgment as the punishment for the offence."
The plaintiff contended that this approach appeared to bring the concept of "sentence of imprisonment" within the ordinary meaning of "imprison" being "to put into or confine in a prison" or "detain in custody" and "to shut up as if in a prison" or "hold in restraint": Macquarie Dictionary. In Kennedy v Spratt [1972] AC 83, Lord Diplock said at 98 that "the natural meaning of the words 'shall be sentenced to imprisonment' is that he shall be punished for that offence by being sent to prison".
By analogy, the terms of s 16F(2)(a) of the Crimes Act 1914 implicitly reinforce this approach. That provision is as follows: "(2) Where a court imposes a federal sentence on a person and makes a recognizance release order in respect of that sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of making the recognizance release order including, in particular, an explanation: (a) that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any) specified in the order and a period of service in the community equal to the balance of the sentence; and (b) of the conditions to which the order is subject; and (c) of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions; and (d) that any recognizance given in accordance with the order may be discharged or varied under section 20AA." (Emphasis added)
It is instructive to observe that paragraph (a) refers to a period of service in the community equal to the balance of the sentence, not a period that is equal to the length of the term of the recognizance release order. The paragraph makes it clear that an explanation must be given that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any) specified in the order and a period of service in the community equal to the balance of the sentence. I consider that the expression "the balance of the sentence" is an unambiguous reference to the period expiring at the conclusion of the head sentence. It is not in terms or by implication a reference to a period that includes or extends to some other longer additional period during which a defendant may be subject to conditions imposed as part of a recognizance release order and which continue to apply beyond the term of the sentence. The continued operation of the imposed conditions into this period after the expiration of the head sentence does not mean that a defendant subject to those conditions during that period is also serving a sentence of imprisonment.
Finally in this context, it seems to me that reliance by the defendant upon the decision of Walton J in TT is misplaced. His Honour's decision correctly deals with the question of whether a person on a recognizance release order being served before the expiration of the head sentence is nonetheless a supervised offender, that is, in current custody or under supervision while serving a sentence of imprisonment. His conclusion that the person was a supervised offender in those circumstances is unexceptionable. His Honour's decision does not deal with the different question of whether a person on a continuing or enduring recognizance release order remains a supervised offender after the head sentence expires.
In my opinion, the defendant will neither be relevantly in custody nor under supervision after the expiration of his head sentence on 8 May 2019. It follows that the summons was filed within the last nine months of the defendant's current custody or supervision.

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Cases Cited (17)

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