Attorney-General (SA) v Smith
[2020] SASC 108
•23 June 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v SMITH
[2020] SASC 108
Judgment of The Honourable Justice Lovell
23 June 2020
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
Application by the Attorney-General (SA) for an extended supervision order in respect of the respondent, pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’).
Whether the Court’s power to make an extended supervision order is enlivened – whether the respondent is a high risk offender – whether the respondent is a serious sexual offender – whether a “period of imprisonment” under s 5(a) of the HRO Act extends to a period of detention served as a youth in a training centre
Held, per Lovell J:
1. The respondent is not a serious sexual offender and therefore does not meet the definition of a high risk offender.
2. The Court’s jurisdiction to make an extended supervision order is not enlivened.
3. The application for an extended supervision order is dismissed.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 3, 4, 5, 6, 7, 9; Criminal Law Consolidation Act 1935 (SA) ss 19, 48, 49, 63A; Child Sex Offenders Registration Act 2006 (SA) s 44; Summary Offences Act 1953 (SA) s 23(1); Young Offenders Act 1993 (SA) s 23(1); Sentencing Act 2017 (SA) s 53, referred to.
The Queen v A2 [2019] HCA 35; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Fardon v Attorney-General (Qld) (2004) 223 CLR 575, considered.
ATTORNEY-GENERAL (SA) v SMITH
[2020] SASC 108LOVELL J.
Overview
In 2019, the respondent was serving a sentence of imprisonment for three counts of possessing child exploitation material[1] committed in August 2018. Two counts were aggravated offences. The head sentence imposed for the offending expired on 15 September 2019. On 5 September 2019, prior to the respondent’s release date, the Attorney-General for South Australia (‘the Attorney-General’) filed an application seeking an order that the respondent be subject to an extended supervision order (‘ESO’) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’).
[1] Criminal Law Consolidation Act 1935 (SA) s 63A.
On 13 September 2019, this Court made an interim supervision order (‘ISO’) in respect of the respondent pending the Court’s determination of the application for an ESO.[2] The respondent contends that the Court’s jurisdiction to make an ESO is not enlivened and therefore the application should be dismissed as the respondent does not fall within the definition of a “high risk offender”.
[2] Criminal Law (High Risk Offenders) Act 2015 (SA) s 9(1).
Background
The respondent has an extensive history of recurrent sexual offending, beginning when he was 13 years old.
In February 1996, at the age of 13, the respondent committed the offence of unlawful sexual intercourse.[3] The victim was his four-year-old brother. The Youth Court recorded no conviction and the respondent was placed on a good behaviour bond for 12 months with supervision.
[3] Criminal Law Consolidation Act 1935 (SA) s 49.
In July 1998, when the respondent was almost 16, he committed two counts of rape[4] and one count of threaten to cause harm.[5] The victim was eight-years-old. The respondent orally and anally raped the victim and later threatened to hurt the victim if he told anyone. The matter was dealt with in the Youth Court. The respondent was sentenced to a term of detention for one year and six months, suspended upon the respondent entering into a good behaviour bond for six months. The bond was revoked in November 1999, and the respondent served nine months in detention.
[4] Criminal Law Consolidation Act 1935 (SA) s 48.
[5] Criminal Law Consolidation Act 1935 (SA) s 19(2).
In July 2009, when an adult, the respondent was placed on a good behaviour bond for the offence of indecent behaviour.[6]
[6] Summary Offences Act 1953 (SA) s 23(1).
In August and September 2009, the respondent committed the offence of indecent behaviour.
In February 2010, the respondent was found to be in possession of child pornography.[7] It was an aggravated offence. For these offences and a number of other offences, the respondent was sentenced to three years and four months imprisonment.
[7] Criminal Law Consolidation Act 1935 (SA) s 63A.
In August 2013, the respondent again committed the offence of aggravated possession of child pornography as well as one count of failing to comply with his reporting obligations as a sex offender.[8] He was sentenced to three months imprisonment which was suspended upon him entering into a good behaviour bond with 100 hours of community service.
[8] Child Sex Offenders Registration Act 2006 (SA) s 44.
In November 2016, he committed the offence of indecent behaviour for which he was sentenced to two months imprisonment.
Relevantly, as mentioned earlier in these reasons, in 2019 the respondent was serving a sentence of imprisonment for three counts of possessing child exploitation material in breach of s 63A of the Criminal Law Consolidation Act 1935 (SA) 2019 (‘CLCA’). Two of the counts were aggravated offences.
Jurisdiction
An ESO can only be made if the Court is satisfied of two elements:[9] first, the respondent is a “high risk offender”, and second, that the respondent poses an appreciable risk to the safety of the community if not supervised under such an order. Thus, the Court’s jurisdiction to make an ESO is not enlivened unless the respondent meets the threshold requirement of being a “high risk offender”. The respondent submitted that he does not meet the definition of a “high risk offender” and therefore the jurisdiction to make an ESO is not enlivened. To understand how this simple and crisp submission arises requires detailed consideration of the relevant sections of the HRO Act and how they operate in relation to the facts of this case.
[9] Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(4).
The HRO Act
The first step is to consider the definition of a “high risk offender”. Section 5 of the HRO Act relevantly states:
For the purposes of this Act, a high risk offender is—
(a)a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence; or
(b)a person referred to in paragraph (a) who is serving a sentence of imprisonment any part of which is in respect of any of the following offences:
(i)an offence under section 58 or 63A of the Criminal Law Consolidation Act 1935;
(ii)an offence under section 44, 45, 65 or 66N(2) of the Child Sex Offenders Registration Act 2006;
(iii)an offence under section 44, 45, 65 or 66N(2) of the Child Sex Offenders Registration Act 2006;
(iv)an offence under section 99I of the Summary Procedure Act 1921;
(v)an offence prescribed by the regulations for the purposes of this paragraph; or
…
(Emphasis added)
For the purposes of the HRO Act, a person can be found to be a “high risk offender”, and therefore potentially subject to an ESO, in two ways. First, under s 5(a), by committing a serious sexual offence and be currently serving a period of imprisonment for that serious sexual offence. Secondly, under s 5(b), a person who had previously been convicted of a serious sexual offence but was no longer serving that sentence could be a “high risk offender” if they subsequently committed one of the less serious offences outlined in s 5(b)(i), such as a breach of s 63A of the CLCA, and were still serving a sentence of imprisonment for that offence.
In this matter, the Attorney-General’s application for an ESO is based on the definition contained in s 5(b) of the HRO Act. It is common ground that the respondent, at the time the application was made, was serving a term of imprisonment for an offence under s 63A of the CLCA and therefore meets part of the definition under s 5(b). For the respondent to meet the full definition under s 5(b), he must be captured by s 5(a). That is, the respondent must not only be serving a sentence of imprisonment for an offence under s 63A of the CLCA, he must also be a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence. Whether this respondent meets the definition under s 5(a) is the issue on this application.
I therefore turn to consider the definitions in s 5(a).
A serious sexual offence is defined by listing specified offences where the maximum penalty prescribed for the offence is, or includes, imprisonment for at least five years. Section 63A of the CLCA is not one of the specified offences. However, the offence of rape, for which the respondent was convicted as a youth, is a serious sexual offence.
A serious sexual offender is defined in s 4 of the HRO Act as “a person convicted (whether before or after the commencement of this Act) of a serious sexual offence”.
As outlined earlier in my reasons, the respondent was convicted as a youth of two counts of rape contrary to s 48 of the CLCA. Section 48 of the CLCA is specified in the definition as a serious sexual offence. The maximum penalty for rape is imprisonment for life. Had the respondent been an adult at the time he committed the rape and had he been sentenced to a period of imprisonment, he would clearly have come within the definition of a “serious sexual offender” and therefore, a “high risk offender”. However, he was a youth at the time he committed the serious sexual offence and it is this fact that the respondent relies upon to establish that he does not fall within the definition in s 5(a) of the HRO Act.
The respondent pointed to the specific wording in the definition of a “high risk offender” and, in particular, to the expression “period of imprisonment”. The respondent submitted that when sentenced for the rape charge, he was not sentenced to a period of imprisonment but rather, under the Young Offenders Act 1993 (SA) (‘Young Offenders Act’), to a period of detention. This submission requires further analysis.
Does the concept of imprisonment include youth detention?
In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose. That is, the process begins with the text but, as the meaning of words can never be acontextual, the process must also begin by examining the context.[10] The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[11] Context, in its widest sense, and the purpose of the statute informs the interpretative task throughout.[12] Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[13]
[10] The Queen v A2 [2019] HCA 35 at [163] per Edelman J.
[11] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 at [47] per Hayne, Heydon, Crennan and Kiefel JJ.
[12] The Queen v A2 [2019] HCA 35 at [124] per Bell and Gageler JJ (in the minority on the result).
[13] Alcan (NT) Alumina Pty Ltd v Commissoner of Territory Revenue (2009) 239 CLR 27 at 46-47 at [47] per Hayne, Heydon, Crennan and Kiefel JJ.
A statutory offence provision is to be construed according to the ordinary rules of construction; courts do not employ a different regime of construction or interpretation simply because conduct is proscribed as an offence. The language of a penal provision should not be unduly stretched or extended and any real ambiguity as to meaning should be resolved in favour of an accused. However, any ambiguity that calls for such resolution is one which persists after the application of the ordinary rules of construction.[14]
[14] The Queen v A2 [2019] HCA 35 at [52] per Kiefel CJ and Keane J.
The object of the HRO Act is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders.[15] To achieve that aim, the HRO Act defines who is a “high risk offender” and then sets out a regime of supervision of persons captured by that definition if it is established that they pose an appreciable risk of harm to the community if not supervised. A person either meets the definition of a “high risk offender” or they don’t; there is no discretion involved. If they meet the definition, whether an ESO is made is discretionary. This aspect is determined by a judge of this Court having regard to the factors set out in s 7(6) of the HRO Act.
[15] Criminal Law (High Risk Offenders) Act 2015 (SA) s 3.
The expression “period of imprisonment” is not defined in the HRO Act. Imprisonment is also not defined.
“Imprison” is defined in the Macquarie Dictionary as:
1. To put into or confine in a prison; detain in custody.
2. To shut up as if in a prison; hold in restraint.
The Macquarie Dictionary defines “detain” as “to keep under restraint or in custody”. “Detention” is relevantly defined as:
1. The act of detaining.
2. The state of being detained.
3. A keeping in custody; confinement.
In their ordinary meanings, both imprisonment and detention are defined in terms of a deprivation of liberty. The nature of both penalties is the same; the confinement of a person. As Kirby J stated in Fardon v Attorney-General (Qld), “simply calling the imprisonment by a different name (detention) does not alter its true character or punitive effect”.[16]
[16] (2004) 223 CLR 575 at [165] (Kirby J was in the minority on the result).
Mr Nguyen, counsel for the Attorney-General, submitted that the term “imprisonment” ought to be construed as having its ordinary and literal meaning, that is, being any form of deprivation of liberty or confinement including detention. He submitted that s 5(b) of the HRO Act is aimed at capturing persons, as a class, with a relevant history of serious sexual offending who have continued to commit further, but less serious, sexual offences. I agree. That is clearly the purpose of the definition in s 5(b) of the HRO Act.
Section 6 of the HRO Act, however, states that the HRO Act does not apply to a youth. Mr Nguyen acknowledged the difficulty with that section but submitted that the ESO application was not made in relation to a youth. The respondent has committed offences in breach of s 63A of the CLCA as an adult. Mr Nguyen submitted that the respondent is within the class of offenders the HRO Act intended to capture under s 5(b), namely adult offenders who have a previous history of serious sexual offending including offending as a youth. To exclude, in effect, an offender’s prior convictions because the offending occurred while they were a “youth” would result in the safety of the community being undermined.
Mr Cole, for the respondent, submitted that s 23(1) of the Young Offenders Act prohibits a court from sentencing a youth to a term of imprisonment.[17] He submitted that the particular use of the expression “period of imprisonment” was a direct reference to sentencing an adult to serve the term of imprisonment in an adult prison facility. Young offenders were not sentenced, deliberately, to a “period of imprisonment”. A purpose of sentencing young offenders is to keep them out of the prison system. If the offending is serious enough, the youthful offender is sentenced to a term of detention in a training centre, not a prison. The aims of, and the facilities provided in, a training centre are manifestly different to an adult prison.
[17] There is an exception under s 23(6) which is not relevant to this matter.
Mr Cole also pointed to s 53 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) where the definition of a “serious repeat offender” specifically includes offences committed by a youth. While accepting that s 53 of the Sentencing Act had to be interpreted in its context and with regard to its purpose, Mr Cole submitted that it would have been open to Parliament, under the HRO Act, particularly where s 6 states the HRO Act does not apply to youths, to make it clear that a sentence to a period of detention following a conviction as a youth was to be taken into account in the definition of a “high risk offender”. The fact that it did not do so, he submitted, was a reason to interpret the expression literally.
Discussion
Strictly speaking, the HRO Act does not create any new offence or offences. However, that said, it provides for a more draconian punishment, namely the possible making of a continuing detention order where there is a breach of an ESO. A person breaching the ESO could be detained in custody by breaching the “supervision” terms but without committing a criminal offence. In that sense, the provisions under consideration should be interpreted as if they were part of a penal provision.
It is the operation of s 6 of the HRO Act which particularly concerns me. The HRO Act does not apply to a youth. Thus, when considering whether a person should be classed as a “high risk offender” under s 5(a) of the HRO Act, all youths are excluded as the HRO Act simply does not apply. So, at the time he committed the offence of rape as a youth, the respondent could not be deemed to be a “serious sexual offender” and therefore a “high risk offender” for the purpose of the HRO Act. The HRO Act simply did not apply to him.
However, when the respondent committed the offence breaching s 63A of the CLCA, the Attorney-General argued that, as he committed that offence as an adult, the rape conviction can now be used to establish that he is a “serious sexual offender” under s 4 of the HRO Act, and then by extension, he meets the qualifications of a “high risk offender” in s 5(a) of the HRO Act. It is the act of committing an offence as an adult that transmogrifies the respondent from a person to whom the HRO Act does not apply into a “serious sexual offender” as defined under the HRO Act. Unless these provisions are interpreted in this wider sense, it was submitted, the “reach” of the HRO Act would be restricted. The cohort of offenders, such as the respondent, to whom the HRO Act had no initial application, would not be subject to “supervision” and the safety of the community would be undermined.
There is an alluring simplicity about that argument but one that does not withstand scrutiny. Edelman J, in The Queen v A2, identified the problem with such arguments when he observed:[18]
When this Court said in Milne v The Queen that "[p]urposive construction does not justify expanding the scope of a criminal offence beyond its textual limits" it was not suggesting the existence of a separate principle of interpretation for criminal statutes that circumscribed the role of purpose or context to operate only within the covers of the dictionaries of the time. The point being made by this Court was that once courts have interpreted the meaning of the words of a provision they cannot expand that meaning in an attempt to give the words a wider effect. It is not open to courts, independently of their interpretation of the statutory words, to "suppose the law-maker present, and that you have asked him this question: Did you intend to comprehend this case?". As McHugh J said in Krakouer v The Queen, a decision cited with approval in Milne:
"If conduct of a particular kind stands outside the [meaning of the] language of a penal section, the fact that a Court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than [the meaning of] its language admits."
There might sometimes be a fine line between asking: "In light of its legislative purpose, what would Parliament have intended in these circumstances?" and asking: "Does the intended meaning of the words used by Parliament extend to these circumstances?" But the proper question to ask in statutory interpretation is always the latter. Where the relevant meaning of the words of a statute concerns a criminal offence it is particularly important to respect the difference between the two questions, lest the judiciary create, and apply retroactively, a new criminal offence...
(Footnotes omitted)
[18] [2019] HCA 35 at [164]-[165].
Section 6 of the HRO Act clearly states that the HRO Act does not apply to youths. The respondent could not be classified as a “serious sexual offender” at the time he committed the offence as the HRO Act did not apply to him due to his age. He cannot suddenly retrospectively be classified as a “serious sexual offender” for his offending as a youth later in life simply because he has committed further offending as an adult. The use of the expression “sentenced to a period of imprisonment” as opposed to “detention” in s 5(a) of the HRO Act is entirely consistent with the operation of s 6 of the HRO Act. In context, the definition of a “high risk offender” must only apply to those offenders who have served a period of imprisonment, not detention; the meaning of the words in ss 5 and 6 of the HRO Act are clear. To accept the argument of Mr Nguyen for the Attorney-General would require giving the expression “period of imprisonment” a wider meaning than is warranted when considering the purpose of the text in context. It is not a case of asking what Parliament would have intended in these circumstances. The proper question is: “Does the intended meaning of the words used by Parliament extend to these circumstances?”. The answer is clearly no. The HRO Act only applies to those persons who have been sentenced to a period of imprisonment, not detention.
I find that the respondent does not satisfy s 5(a) of the HRO Act as he is not a “serious sexual offender”. Therefore, he cannot meet the definition of a “high risk offender”. In those circumstances, the jurisdiction of the Court to make an ESO is not enlivened.
I dismiss the Attorney-General’s application.
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