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[2012] WASCA 102
General information, not legal advice.
Court of Appeal (WA)
2012-05-09
Heenan J, Lure P, Buss JA, Murphy JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [2012] WASCA 102
BETWEEN : THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Citation : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [2010] WASC 405
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Citation : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BROWN [No 2] [2011] WASC 191
Criminal law - Dangerous sexual offender - Power of court to backdate continuing detention order - Whether continuing detention order includes an interim order made under s 14(2)(b) - Whether court has power to conduct review of continuing detention order before expiration of 1 year from the time the order is made
Criminal Procedure Rules 2005 (WA), r 48
Order made by primary judge backdating continuing detention order and order made on 8 August 2011 refusing to rescind continuing detention order set aside
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97; (2009) 196 A Crim R 85
Director of Public Prosecutions (WA) v Brown [2010] WASC 405
Director of Public Prosecutions (WA) v Brown [No 2] [2011] WASC 191
Director of Public Prosecutions (WA) v Pindan [2012] WASC 13
Director of Public Prosecutions (WA) v Williams [2012] WASCA 32
Narkle v Hamilton [2008] WASCA 31
Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69
Seiffert v The Prisoners Review Board [2011] WASCA 148
1 McLURE P: The primary issue in this appeal is whether EM Heenan J had the power to conduct a review of a continuing detention order made under s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) against the respondent before the expiration of 1 year from the time that the continuing detention order was made.
2 As at April 2010, the respondent was in custody serving sentences of imprisonment for a number of 'serious sexual offences' as defined in the Act. The respondent would cease to be under sentence of imprisonment for those offences on 26 June 2010.
3 On 27 April 2010, the Director of Public Prosecutions (DPP) applied for a continuing detention order under s 17(1)(a) of the Act.
4 On 13 May 2010, a preliminary hearing was conducted before McKechnie J at which a final hearing date was fixed and orders made in relation to the preparation of psychiatric reports.
5 The final hearing commenced on 24 June 2010 before EM Heenan J (the primary judge). On 25 June 2010 the hearing was adjourned until 25 August 2010 on the application of the respondent for the purpose of gathering further evidence as to possible appropriate accommodation for the respondent if he were to be released on a supervision order. On 25 June 2010, the primary judge made an order under s 14(2)(b) of the Act for the interim detention of the respondent until the date of adjourned hearing.
6 On 25 August 2010 the adjourned hearing continued but was again adjourned, at the request of the respondent, until 28 October 2010. The primary judge made a further interim detention order under s 14(2)(b).
7 On 28 October 2010 the adjourned final hearing concluded. The primary judge reserved his decision until 7 December 2010. The respondent's period of detention was again extended, without objection, from 28 October 2010 until 23 December 2010 when the decision was delivered.
8 At the hearing on 23 December 2010, the primary judge made an order to the effect that the respondent be subject to a continuing detention order under s 17(1) of the Act. He said the order would 'take effect from today' (ts 254 23/12/10).
9 Proceedings under the Act are to be taken to be criminal proceedings (s 40). Accordingly, pt 12 of the Criminal Procedure Rules 2005 (WA) (the CP Rules) applies. There is no formal record of the orders made on 23 December 2010, whether under r 48 of the CP Rules or otherwise. However, a warrant of commitment, signed by the clerk of arraigns, records that the 'date from when continuing term of detention is begun' is 26 June 2010. That is inconsistent with the orders pronounced on 23 December 2010.
10 In published reasons (Director of Public Prosecutions (WA) v Brown [2010] WASC 405) the primary judge noted that the date for the first annual review would be 26 June 2011 because the respondent's detention was from 26 June 2010 under the provisions of the Act. The primary judge said:
Because [the respondent's] custody has since 26 June 2010 been pursuant to orders made under the terms of this Act rather than to the sentences which had been imposed upon him and which he has served, the end of the first period of 1 year referred to in s 29(2)(a) will be 26 June 2011 [126].
11 By application dated 18 May 2011, the DPP sought an order pursuant to s 29 and s 31 of the Act that the detention of the respondent under the continuing detention order made on 23 December 2010 be reviewed as soon as practicable after the end of the statutory period, which the DPP contended was 23 December 2011. The application was heard and determined on 21 June 2011. The primary judge gave ex tempore reasons for decision in which he said:
I consider that the review in this case is due on 26 June 2011, and I will make an order or a declaration to that effect. If there is to be any appeal from this decision, or my earlier decision, it is desirable that I make that clear, and that I express the view that this is the conclusion which I have reached, a determination of the merits.
12 There is no formal record of this order. Detailed reasons were subsequently published: Director of Public Prosecutions (WA) v Brown [No 2] [2011] WASC 191 (DPP v Brown No 2). The primary judge said:
As the respondent ... was due for release on completion of service of his sentence on 26 June 2010, he remained in custody from then on only because of the interim detention order made under s 14(2)(b), and later extended until the order under s 17 was finally made on 23 December 2010. He would not have been in custody between those dates unless the s 14(2)(b) order had been made. In the circumstances, I consider that the s 14(2)(b) order should be regarded as an order within the scope of s 29 and the final order made under s 17 on 23 December 2010 should be treated, as I treated it, as determining the status of the respondent and taking effect from the date when he was first constrained under the provisions of the Act, namely the date when the s 14(2)(b) order was first made. The decision to declare that the order was due for review on or as soon as practicable after 26 June 2011 follows directly from this.
This leads me to the conclusion that the preferable interpretation of the Act is to treat the period prescribed by s 29(2)(a) as referring to the period after the expiration of the service of the sentence or sentences which have been imposed upon the offender and which led to applications under this legislation for an extension or the renewal of his imprisonment [68] - [69]. (emphasis added)
13 The italicised words provide the explanation for the backdating of the continuing detention order in the warrant of commitment. After delivering his oral reasons on 21 June 2011, the primary judge 'invited' the DPP to make an application for a review to be conducted on or as soon after 26 June 2011 as was practicable. Programming orders were made on 21 June 2011, including an order that 'the application for an annual review of detention pursuant to s 29 and s 31 of [the Act] be heard on 8 August 2011'. Only as a consequence of the primary judge's ruling on the DPP's application, the programming orders were made by consent. The DPP commenced this appeal on 12 July 2011.
14 A review of the respondent's continuing detention order was undertaken on 8 August 2011 by the primary judge. He made an order declining to rescind the continuing detention order. There is a formal record of that order.
15 The purpose of the Act is to enable the post-sentence preventive detention or supervision of a person who has been convicted of, and is under sentence for, a serious sexual offence if they are found to pose a serious danger to the community. A person is a serious danger to the community if there is an unacceptable risk that the person would commit a serious sexual offence (s 7). Such a person will be detained in custody for an indefinite term or be subject to a supervision order not for what they have done in the past, the penalty for which having been served, but for what they may do in the future: Director of Public Prosecutions (WA) v Williams [2012] WASCA 32 [3].
16 The details of the statutory scheme are as follows. The DPP has the power to file with the Supreme Court an application for orders under s 14 and s 17(1) in relation to an offender who is under sentence of imprisonment wholly or in part for a serious sexual offence (s 8(1)).
17 An offender is under sentence of imprisonment until discharged from it; if the offender is released under a parole order, he or she is discharged from the sentence at the end of the parole period (s 3(1) of the Act; s 66 of the Sentence Administration Act 2003 (WA)). Thus an application under s 8 can be made whether the offender is in custody for the serious sexual offence or has been released on parole. After an application is filed under s 8, the court must fix a day for the matter to come before the court for a preliminary hearing (s 11(1)).
18 Section 14 deals with the preliminary hearing. If at that hearing, the court is satisfied that there are reasonable grounds for believing that the court might find that the offender is a serious danger to the community, the court must fix a day for the hearing of the application for a 'Division 2 order', defined in s 3(1) as an order under s 17(1). If the court is so satisfied, it must order that the offender undergo examinations by two psychiatrists for the purposes of preparing reports that are to be used at the s 17 hearing (s 14(2)(a)). Section 14(2)(b) provides:
If the court is satisfied as described in subsection (1) -
...
(b) the court may -
(i) if the offender is in custody and might otherwise be released from custody before the application is finally decided, order that the offender be detained in custody for the period stated in the order;
(ii) if the offender is not in custody, order that the offender be detained in custody for the period stated in the order.
19 Section 17(1) relevantly provides:
If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -
(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
20 The expression 'Division 2 continuing detention order' is defined in s 3(1) to mean an order under s 17(1)(a). A 'supervision order' is defined to mean an order under s 17(1)(b) or s 33(2)(b). A 'Division 2 order' is defined in s 3(1) to mean a Division 2 continuing detention order or a supervision order under s 17(1)(b).
21 Part 2 div 4 of the Act deals with contraventions of a supervision order. Under s 23(1)(b), if the court is satisfied that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened a condition of the supervision order, the court may, if also satisfied that there is an unacceptable risk that the person would commit a serious sexual offence, order that the person be detained in custody for an indefinite term for control, care or treatment. The expression 'Division 4 continuing detention order' means an order under s 23(1)(b).
22 The expression 'continuing detention order' is defined in s 3(1) to mean a Division 2 continuing detention order or a Division 4 continuing detention order.
23 Section 25 of the Act provides:
A continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the Supreme Court.
24 If the court makes a continuing detention order, it must give detailed reasons for making the order (s 27(1)) and the reasons must be given at the time the order is made (s 27(2)).
25 Part 3 of the Act is headed 'Annual reviews of detention'. Section 28 and s 29 provide:
The purpose of this Part is to ensure that a person's detention under a continuing detention order is regularly reviewed.
(1) While a person is subject to a continuing detention order, the DPP must apply to the Supreme Court for the person's detention under the order to be reviewed as specified in subsection (2).
(2) Reviews have to be carried out -
(a) as soon as practicable after the end of a period of 1 year commencing when the person is first in custody on a day on which the person would not have been in custody had the order not been made; and
(b) as soon as practicable after the end of the period of 1 year commencing when the detention was most recently reviewed under this section or section 30.
26 Section 30 entitles an offender to make an application for review. However such an application cannot be made until after the detention has been reviewed under s 29(2)(a).
27 Section 31 of the Act provides:
(1) As soon as practicable after an application is made under section 29 or 30, the court has to give directions for the hearing of the application.
(2) The application must be heard, and the review must be carried out, as soon as it is practicable to do so in accordance with any directions given by the court.
28 The court's powers on a review are in s 33 which provides:
(1) When the court, on an application made under section 29 or 30, reviews a person's detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2) The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(a) expressly decline to rescind the order; or
(b) rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3) In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
29 The DPP relies on five grounds of appeal. Three relate to the decision on 21 June 2011 and two relate to the orders made on 23 December 2010. They are in terms:
30 Although there are five grounds of appeal, there are only two issues of substance being the proper construction of s 29(2)(a) of the Act and whether a continuing detention order can be backdated.
31 The respondent contends that the appeal is incompetent. Otherwise, he supports the primary judge's construction of s 29(2)(a) and also seeks to uphold the decision on two additional grounds being that the court has an inherent power to antedate the commencement of a continuing detention order (ground 1) and that the court has the power to conduct review proceedings prior to the end of the period of 1 year referred to in s 29(2)(a) (ground 2).
32 Section 34 of the Act provides:
The DPP or a person in relation to whom the court makes a decision under this Act, other than this Part, may appeal to the Court of Appeal against the decision.
34 The respondent says, in the alternative, that the issue is now moot because the review has been conducted. It is contended that the court should decline to hear and determine the appeal because it would be doing no more than proffering an advisory opinion.
35 The challenge to the competency of the appeal accepts that the timing of the review under s 29(2)(a) is fixed by the Act. That construction is inconsistent with ground 2 of the respondent's notice of contention. For reasons which I detail later, I agree with the construction on which the objection to competency is based.
36 The word 'decision' is one of wide import and includes interlocutory and final determinations. It is unnecessary to determine whether it includes rulings. The real issue in this case is whether the primary judge made a relevant decision 'under this Act'.
37 The primary judge did not make an order on 23 December 2010 relating to the timing of the first review. At its highest, he made an obiter ruling. Certainly no party suggested that the ruling bound the parties. It can be put to one side.
38 If, as appears to be accepted by both parties, the primary judge backdated the commencement of the continuing detention order, that is a decision purportedly made under the Act. If he did so, it was in the proceedings on 23 December 2010.
39 Further, the order made on 21 June 2011 programming the hearing of the s 29(2)(a) review on 8 August 2011, is also a decision purportedly made under the Act. The programming orders were made under s 31 of the Act. That decision is directly based on a construction of s 29(2)(a) that the DPP contends is erroneous in grounds 1 and 3.
40 A decision purportedly made under an Act, even if invalid, is a decision under an Act: Seiffert v The Prisoners Review Board [2011] WASCA 148 [83] - [85]. If that were not the case, jurisdictional errors would not be appealable. In any event, a judicial decision made by a judge of a superior court, even if it is beyond jurisdiction, is valid unless and until it is set aside: Ousley v The Queen (1997) 192 CLR 69. Thus, the decision to backdate the continuing detention order and to programme the review for 8 August 2011 were decisions under the Act. Accordingly, the appeal is competent.
41 Moreover, the appeal is not moot or hypothetical. If the primary judge acted without jurisdiction or power, the orders he made in programming and determining the review are voidable and should be set aside. There having been no valid review under s 29(2)(a) of the Act, steps must be taken as soon as practicable to remedy that omission. As a consequence, the respondent is not prejudiced by the outcome of this appeal.
Construction of s 29(2)(a)
42 The trial judge's reasoning on the construction issue in DPP v Brown No 2 is captured in the following paragraphs:
I consider that it is s 29 and s 31 of the Act which are the dominant provisions which apply in relation to the nature and frequency of reviews of continuing detention orders. It is true that the definition contained in s 3 of a 'continuing detention order' does not include an interim order made under s 14 but, in my view, it would be absurd and incongruous to treat that definition as excluding from the scope of s 29 and s 31 orders made under s 14(2)(b). To do so would not conform to the policy of regular review of detention orders contemplated by s 28 of the Act, and would leave the frequency of such reviews hostage to unforeseen and unpredictable delays in the processing and determination of the application caused by unforeseen logistical circumstances outside the scope of matters addressed by parliament when determining the frequency of such reviews by s 29 and s 31 themselves.
In the current situation, such a construction would have delayed review of the respondent's continuing detention order by six months, resulting in the highly undesirable situation where he would have been deprived of his liberty for that period without having been sentenced for an offence, and without receiving a proportionate reduction in the period before his next opportunity for release, conditional or otherwise, upon review of his level of risk to the community. Furthermore, any postponement of the first annual review of the respondent's incarceration resulting from such a construction would have the potentially prejudicial effect of deferring the point from which the respondent would be able to seek review of his continuing detention order on his own behalf under s 30 of the Act.
The issue under consideration bears on the liberty of persons confined by continuing detention orders, and the right and expectation which the statute gives to them to have such orders regularly reviewed. A construction of the Act which is more favourable to fixed and regular review, and hence to their prospects of regaining liberty or at least a less restricted liberty, should, unless excluded by context or purpose, be adopted [65] - [67].
43 Thus, the primary judge departed from the natural and ordinary meaning of the language of the Act to include an interim order under s 14(2)(b) of the Act (interim detention order) within the scope of the expression 'continuing detention order'. If this is correct, no backdating is involved. This construction was adopted by the primary judge to avoid what he characterised as an absurd and incongruous outcome.
44 The meaning of the text of the Act is unambiguous. The expression 'continuing detention order' is defined in s 3(1) to mean 'a Division 2 continuing detention order or a Division 4 continuing detention order'. The definition is exhaustive not inclusive. It does not in its terms include an interim detention order.
45 The purpose of pt 3 of the Act is to ensure that a person's detention under a continuing detention order is regularly reviewed (s 28). The expression 'the order' in s 29(1) and s 29(2)(a) can only be a reference back to the 'continuing detention order' referred to in s 28 and s 29(1) of the Act. This was recognised by the primary judge.
46 Thus, the commencement date for calculating the period of 1 year for the purpose of s 29(2)(a) is when the respondent was first in custody on a day on which he would not have been in custody had the continuing detention order not been made. If the definition of that expression means what it unambiguously states, the commencement date in this case is 23 December 2010.
47 The expansion of the statutory definition of 'continuing detention order' to include an interim detention order is inconsistent with the structure and purpose of the Act as a whole. First, it is inconsistent with the statutory definition of the term.
48 Secondly, s 29(2)(a) expressly contemplates that the first 'annual' review can take place more than 1 year from the time the Division 2 or Division 4 continuing detention order was made. The statutory criterion in s 29(2)(a) for the identification of the commencement date for calculating the period of 1 year has the intended effect of delaying the commencement date until after the time the continuing detention order was made when the offender is still in custody under a sentence of imprisonment that has not been discharged at that time. This possibility is consistent with the scheme of the Act, in particular the requirements of s 8. If the offender is in custody for a serious sexual offence, the s 8 application cannot be filed unless there is a possibility that the person might be released from custody within the period of 6 months after the application is made (s 8(3)). Thus, it is possible that a continuing detention order may be made before the offender is released from custody under the sentence of imprisonment which enlivened the DPP's power to make the application. In this situation the first review will occur some time after 1 year from the time the continuing detention order was made.
49 The first review will also be delayed beyond 1 year where an offender who continues to be under sentence of imprisonment wholly or in part for a serious sexual offence is, when the continuing detention order is made, in custody on remand for an offence allegedly committed whilst on parole for the sexual offence. The period spent in remand would not be taken into account in determining the review date under s 29(2)(a) even if the offender was subsequently acquitted of the offence. Time spent in custody is not the criterion for the timing of the first annual review; it is time spent in custody that is solely referable to the making of the Division 2 or Division 4 continuing detention order.
50 Thirdly, it is possible that an interim detention order may be in operation for more than 1 year before the making of a continuing detention order. Although that is clearly undesirable, there may be legitimate reasons in wholly exceptional cases for such a delay. See for example Director of Public Prosecutions (WA) v Pindan [2012] WASC 13. If the definition of a 'continuing detention order' is expanded to include an interim detention order, in this situation a review under s 33 would be required before a Division 2 or Division 4 continuing detention order had been made. Yet it is unambiguously clear that a s 33 review only applies to Division 2 and Division 4 continuing detention orders, which are for an indefinite term (s 17(1)(a) and s 23(1)(b)) unless and until rescinded under s 33(1). An s 14(2)(b) interim detention order expires at the end of the period which must be stated in the order.
52 The primary judge departed from the natural and ordinary meaning of the text of the Act because he regarded it as inconsistent with the purpose of the Act and as producing an absurd result. I am not persuaded that is correct. The purpose of the Act is to prevent a person who has been convicted of and is under sentence for a serious sexual offence from committing such an offence in the future. The expression 'serious danger to the community' is dealt with in s 7 which relevantly provides:
(1) Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -
(a) by acceptable and cogent evidence; and
(b) to a high degree of probability.
53 The reference to a 'continuing detention order' in s 7(1) can only be a reference to a Division 2 or Division 4 continuing detention order. It clearly has no application to an interim detention order which must be made if the court is satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community (s 14(1)). A Division 2 and Division 4 continuing detention order requires a finding under s 7 that the offender is a serious danger to the community. As the basis for the final order is the risk of the offender committing a serious sexual offence in the future, it is appropriate that the commencement date for the review period be at or after the time at which the court determines that the offender is a serious danger to the community.
54 Further, a Division 2 and Division 4 continuing detention order is for an indefinite term for the 'control, care or treatment' of the offender. That is not the purpose of an interim detention order, which is solely to protect the public. The existence of the power to make an interim detention order is recognition of the fact that there may be times when that is the only basis to detain an offender in custody pending the final determination of the DPP's application. However, the Act provides a mechanism in s 8(3) whereby reliance on s 14(2)(b) can be avoided or minimised. That should occur whenever possible.
55 Finally, there is no relevant analogy between the objects and principles relating to sentencing for a past offence and a preventive order the object of which is to remove or adequately minimise the risk of future offending.
57 Section 25 of the Act is unambiguous. A continuing detention order has effect from the time the order is made until it is rescinded by an order under s 33. As reasons must be given at the time the continuing detention order is made (s 27(2)) there can be no argument as to the meaning and effect of s 25.
58 The respondent relies on O 42 r 2 of the Rules of the Supreme Court 1971 (WA) (the Rules) which relevantly provides:
(1) A judgment or order of the Court takes effect from the day of its date.
(2) Such judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders that it be dated as of some earlier or later day, in which case it shall be dated as of that other day.
59 The jurisdiction to antedate orders under O 42 r 2 or in the inherent jurisdiction of the court cannot be exercised if it would contravene a statute: Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97; (2009) 196 A Crim R 85 [58] - [59]. Section 25 is inconsistent with the power in O 42 r 2 to antedate orders.
60 In any event, the Rules have no application. As noted earlier, proceedings under the Act are to be taken to be criminal proceedings for all purposes. The court does not have power to backdate a sentence to take time served on remand into account in the absence of express statutory power to do so: Narkle v Hamilton [2008] WASCA 31 [31]. There being no common law power to backdate a sentence for time spent in custody on remand, there can be no such power to backdate a continuing detention order imposed to prevent future offending. I would dismiss ground 1 of the notice of contention.
Power to conduct review before the expiration of 1 year
61 The respondent contends that the court has the power to conduct a review prior to the end of the period of 1 year from the relevant commencement date. That is, the period of 1 year from the commencement date identifies the latest date by which a review under s 29(2)(a) must be held. That construction is inconsistent with the plain meaning of s 29(2) and the statutory scheme which mandates the timing of reviews, subject to s 30 which entitles the offender to alter the
statutorily scheduled reviews in exceptional circumstances. I would dismiss ground 2 of the notice of contention.
62 For these reasons, I would allow the appeal, dismiss the notice of contention and set aside the order made by the primary judge backdating the continuing detention order and the order made on 8 August 2011 refusing to rescind the continuing detention order. As the primary judge had no jurisdiction to conduct the review in August 2011, the review under s 29(2)(a) must be conducted as soon as practicable from the making of these orders.
(1997) 192 CLR 69