The appellant was convicted on his own plea of five convictions for contravening a requirement of an interim supervision order contrary to s 80(1) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). The appellant now appeals the convictions, contending that there has been a miscarriage of justice and that the convictions should be set aside. I agree there has been a miscarriage of justice and that the convictions must be quashed for the reason that the appellant was not subject to an interim supervision order at the time the alleged contravening conduct occurred. Accordingly, at law the appellant could not be convicted of the five offences.
The appellant applies for an extension of time in which to appeal. The respondent does not oppose the extension of time and concedes the appeal. That concession is properly made. I grant the extension of time in which to appeal, grant leave to appeal and set aside the five convictions. I do so for the following reasons.
[2]
On 26 November 2021, the State of Western Australia applied for a restriction order in respect of the appellant under the HRSO Act.
Section 35 of the HRSO Act provides that the State may apply to the Supreme Court for a restriction order in relation to a serious offender under custodial sentence who is not a serious offender under restriction. Section 3 of the HRSO Act defines a restriction order as meaning a continuing detention order or a supervision order. A continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment. A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with s 30 of the HRSO Act.[1]
Section 43 provides that after a restriction order is made, the court must fix a day for the matter to come before the court for a preliminary hearing. The main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, in accordance with s 7, find that the offender is a high risk serious offender.[2]
Section 46(2)(c) relevantly provides that the court may, if the offender is not in custody or might otherwise be released from custody before the restriction order application is finally decided, order that the offender be detained in custody for the period stated in the order.
Section 58(5) of the HRSO Act provides that where proceedings on a restriction order application are pending, the court may at any time in the pending proceedings order that, with effect from a specified date and until the proceedings are finally determined or until another specified date, the offender be subject to an interim supervision order.
Section 80 of the HRSO Act provides that an offender subject to a supervision order must not, without reasonable excuse, contravene a requirement of the order.
[3]
Preliminary hearing and the Interim Supervision Order
[4]
On 8 March 2022, the preliminary hearing was heard before Hall J who decided that there are reasonable grounds to believe that a court might find that the appellant is a high risk serious offender and ordered that the appellant be subject to an interim supervision order.[3] The interim supervision order comprised 36 conditions. Relevantly, the preamble to the interim supervision order stated:
[5]
With proceedings pending on a restriction order application and the Court being satisfied that, to ensure adequate protection of the community, it is desirable to make an order under section 58 of the High Risk Serious Offenders Act2020, the Court orders that the Respondent be subject to an interim supervision order pursuant to section 58(5) of the Act, from 14 March 2022 to 24 August 2022 or until further order of the Court, on the following conditions... (emphasis added).
[6]
On 8 April 2022, the appellant and The State of Western Australia signed a Minute of Consent Orders inserting one further condition in the interim supervision order. Accordingly, Hall J ordered that the interim supervision order be amended by the insertion of the further condition. The preamble of the amended interim supervision order continued to state '...the Court orders that the respondent be subject to an interim supervision order pursuant to section 58(5) of the Act, from 14 March 2022 to 24 August 2022 or until further order of the Court, on the following conditions...(emphasis added)'.
On 22 November 2022, the restriction order application came before Tottle J. The hearing was adjourned to permit the appellant to be assessed by a medical specialist and for a report of the assessment to be obtained. On 28 February 2023, Tottle J ordered that the appellant be declared a high risk serious offender and be subject to a supervision order.[4]
On 13 January 2023, counsel for the State contacted the Court by email raising the validity of the interim supervision order, observing that the Court had not extended the order after its expiration on 24 August 2023.
On 18 January 2023, Tottle J ordered a further interim supervision order. The preamble to that interim supervision order stated:
[7]
Upon the Court being satisfied that there are proceedings pending on a restriction order application and upon the Court being satisfied that, to ensure adequate protection of the community, it is desirable to make an order under section 58 of the High Risk Serious Offenders Act2020, the Court orders that the interim supervision order made by the Honourable Justice Hall on 8 March 2022 as amended on 8 April 2022 is reinstated pursuant to s 58(4) of the Act with effect from 18 January 2023 until the pending proceedings are finally determined... (emphasis added).
[8]
Contravention charges and the Magistrates Court proceedings
[9]
On 8 September 2022, the appellant was charged with the following five charges.
On 22 August 2022, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by providing an invalid urinalysis sample contrary to s 80(1) of the HRSO Act (PE 38417/2022).
On 26 August 2022, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by providing a positive urine drug test result for cannabis contrary to s 80(1) of the HRSO Act (PE 38418/2022).
Between 22 August and 26 August 2022, used a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (PE 38419/2022).
On 1 September 2022, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by providing a positive urine drug test result for cannabis contrary to s 80(1) of the HRSO Act (PE 34820/2022).
Between 26 August and 1 September 2022, used a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (PE 38421/2022).
On 9 September 2022, the appellant appeared before her Honour Magistrate Gibbs and pleaded guilty to the five charges. Her Honour imposed a global fine of $1500 for the five charges.
The appeal against the convictions by Appeal Notice 1044 of 2023 is in respect of two charges only, being charges PE 38418/2022 and PE 34820/2022, which are the charges of contravening a requirement of the supervision order after the appellant's supervision order had lapsed on 24 August 2022.
On 12 October 2022, the appellant was charged with six further offences.
On 19 September 2022, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by providing a positive urine drug test result for cannabis contrary to s 80(1) of the HRSO Act (PE 44422/2022).
Between 12 September and 19 September, used a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (PE 44423/2022).
On 27 September 2022, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by providing a positive urine drug test result for Amphetamine, namely Methamphetamine, contrary to s 80(1) of the HRSO Act (PE 44424/2022).
Between 19 September and 27 September 2022, used a prohibited drug, namely Amphetamine, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (PE 44425/2022).
On 27 September 2022, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by providing a positive urine drug test result for cannabis contrary to s 80(1) of the HRSO Act (PE 44426/2022).
Between 19 September and 27 September 2022, used a prohibited drug, namely cannabis, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (PE 44427/2022).
On 13 October 2022, the appellant appeared before Magistrate Sullivan and pleaded guilty to the six offences.
The learned Magistrate imposed a global fine of $1000 in relation to charge PE 44424/2022 and PE 44425/2022. Further, the learned Magistrate imposed a global fine of $500 in relation to the remaining charges, namely PE 44422/2022, PE 44423/2022, PE 44426/22 and PE 44427/2022.
The appellant appeals against the convictions by Appeal Notice 1045 of 2023 in respect of three charges only, being PE 44422/2022, PE 44424/2022 and PE 44426/2022, which are the charges of contravening a requirement of the supervision order after the appellant's supervision order had lapsed on 24 August 2022.
The Court must not grant leave to appeal unless a ground has a reasonable prospect of success.[6] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[7]
The appellant relies upon the same ground of appeal in appeals 1044 of 2023 and 1045 of 2023, being that he could not, at law, be guilty of the offences. The appellant's ground of appeal properly understood is a contention that there has been a miscarriage of justice, in that he could not as a matter of law have committed the offence to which he pleaded guilty.
For an appellant to set to aside a conviction based on a plea of guilty the appellant must show that there has been a miscarriage of justice.[8] The circumstances which will amount to a miscarriage of justice are not closed and therefore, cannot be exhaustively listed.
However, ordinarily, the circumstances in which it may be shown that a miscarriage of justice has occurred are cases where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it; cases in which, if upon the facts admitted by the plea, the appellant could not in law have been guilty of the offence; and cases in which the plea of guilty was induced by intimidation of one kind of another, or by an improper inducement, or by fraud.[9]
[11]
The appellant was convicted of the five charges of contravening an interim supervision order that had lapsed on 24 August 2022. The interim supervision order imposed by Hall J expressly provided that the order applied 'from 14 March 2022 to 24 August 2022 or until further order of the Court'. There was no further order of the Court made in relation to the interim supervision order before 24 August 2022 (other than the amendment by consent of 8 April 2022, which did not change the period in which the order was to be in force). The interim supervision order therefore lapsed on 24 August 2022.
Accordingly, upon the facts admitted by the plea, the appellant could not in law have been guilty of the contravention charges the subject of the conviction appeal. The appellant has thereby demonstrated a miscarriage of justice. The convictions must be quashed. Given the learned Magistrates imposed global fines on all charges, it is also necessary that the amount of the respective global fines imposed be reduced to take into account the quashing of the five convictions.
Therefore, in respect of appeal 1044 of 2023, there is an extension of time in which to appeal, leave to appeal is granted and the appeal is allowed. The convictions on charges PE 38418/2022 and PE 34820/2022 are set aside. The global fine in the amount of $1500 imposed by the learned Magistrate in respect of charges PE 38417/2022, PE 38418/2022, PE 38419/2022, PE 34820/2022 and PE 38421/2022 is set aside and in lieu thereof, a global fine in the amount of $600 is imposed in respect of charges PE 38417/2022, PE 38419/2022 and PE 38421/2022.
In respect to appeal 1045 of 2023, the appellant is granted an extension of time in which to appeal, leave to appeal is granted and the appeal is allowed. The convictions on charges PE 4422/2022, PE 44424/2022 and PE 44426/2022 are set aside. The global fine in the amount of $1000 imposed by the learned Magistrate in respect of charges PE 44424/2022 and PE 44425/2022 is set aside and in lieu thereof, a fine in the amount of $300 is imposed in respect of charge PE 44425/2022. The global fine in the amount of $500 imposed by the learned Magistrate in respect of charges PE 44422/2022, PE 44423/2022, PE 44426/2022 and PE 44427/2022 is set aside and in lieu thereof, a fine in the amount of $200 is imposed in respect of charges PE 44423/2022 and PE 44427/2022.
[12]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.