Corbett v State Director of Public Prosecution
[2018] WASC 409
•18 DECEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CORBETT -v- STATE DIRECTOR OF PUBLIC PROSECUTION [2018] WASC 409
CORAM: HALL J
HEARD: 18 DECEMBER 2018
DELIVERED : 18 DECEMBER 2018
PUBLISHED : 21 DECEMBER 2018
FILE NO/S: DSO 3 of 2012
BETWEEN: TYRONE KINGSLEY CORBETT
Applicant
AND
STATE DIRECTOR OF PUBLIC PROSECUTION
Respondent
Catchwords:
Dangerous sexual offenders - Special review under s 30 of the Dangerous Sexual Offenders Act 2006 (WA) - Whether such review can be sought where the last review was an annual review - Interpretation of s 29 and s 30 of the Dangerous Sexual Offenders Act 2006 (WA)
Legislation:
Dangerous Sexual Offenders Act 2006 (WA) s 29, s 30, s 31
Result:
Ruling that the application is competent
Category: B
Representation:
Counsel:
| Applicant | : | Ms M R Barone SC |
| Respondent | : | Mr B D Meertens |
Solicitors:
| Applicant | : | Mara Barone |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
The State of Western Australia v Corbett [No 5] [2017] WASC 115
HALL J:
[These reasons were delivered extemporaneously and have been edited from the transcript]
Background
The applicant, Tyrone Kingsley Corbett, is currently detained in custody on a continuing detention order under the Dangerous Sexual Offenders Act2006 (WA) (DSO Act). That order was imposed on 25 November 2014, following contravention proceedings for a breach of a supervision order. The detention order was first reviewed in 2015. That review resulted in a finding that the continuing detention order could not be rescinded at that time.
The second review took place over various dates between 19 December 2016 and 10 April 2017. At the conclusion of that review, the detention order was again affirmed. At the second review, it was accepted by the State that release of the applicant was appropriate if suitable accommodation was available. The delay in completing that review occurred because exhaustive efforts were made to secure suitable accommodation. Ultimately, those efforts failed.
Prior to the second review, the DSO Act was amended, such that after the first review, all subsequent reviews of a detention order would take place at two-year intervals. As that was the state of the law at the conclusion of the last review, the applicant's next review is due in April 2019. In my judgment on the second review I noted that, in the event accommodation became available, it was open for the applicant to seek an early review after the first year of the two year period had elapsed.[1] I referred to s 30(3) of the DSO Act in that regard.
[1] See, The State of Western Australia v Corbett [No 5] [2017] WASC 115 [81].
The new application
On 13 November 2018, the applicant filed an application seeking a review pursuant to s 30 of the Act. The application is supported by an affidavit of Ms Barone of Senior Counsel which states that accommodation has now been found for the applicant. That accommodation has become available under the DSO supported accommodation programme, and will be held subject to the completion of the application.
Is the application competent?
A preliminary issue as to the competence of the application has been raised by the State. It turns on the interpretation of s 29 and s 30 of the DSO Act. These sections provide:
29. Review — periodic
(1) While a person is subject to a continuing detention order, the DPP may apply to the Supreme Court for the person's detention under the order to be reviewed as specified in subsection (2).
(2) The DPP must apply under subsection (1) so as to ensure that reviews are 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 continuing detention order not been made; and
(b) as soon as practicable after the end of the period of 2 years commencing when the detention was most recently reviewed under this section or section 30.
(3) The periods mentioned in subsection (2)(a) and (b) are extended by any period during which the person is in custody serving a sentence of imprisonment.
30. Review — application by person subject to order
(1) A person who is subject to a continuing detention order may, with the leave of the court, apply to the Supreme Court for the person's detention under the order to be reviewed.
(2) Before granting leave the court must be satisfied that there are exceptional circumstances that relate to the person.
(3) An application cannot be made under this section for a person's detention to be reviewed until at least one year after the last occasion on which the person's detention has been reviewed under section 29(2)(b).
(4) When a person applies under this section for the person's detention to be reviewed or applies for leave to make an application of that kind, the proper officer of the court must immediately give a copy of the application to the DPP.
Where an application for a review is made, the court must give directions and the review must be carried out as soon as practicable in accordance with those directions.[2]
[2] See, DSO Act, s 31.
The State submits that an application under s 30 cannot be made until after one year has passed since the latest review under s 29(2)(b). A review under s 29(2)(b) is a review that occurs after the end of a period of two years since the detention was most recently reviewed. The last review, completed on 10 April 2017, occurred less than two years after the previous review in 2015. That is because, at that time, all reviews occurred annually. The conclusion, the State says, is that the last review was not a s 29(2)(b) review and that, accordingly, a s 30 review is not open.
The applicant submits that at the time the last review was conducted, it was a review under s 29(2)(b) as it then stood. The application for that review was filed on 9 March 2016. At that time, s 29(2)(b) referred to reviews occurring on an annual basis. No reviews commenced prior to the amendments could be a review under the presently existing s 29(2)(b).
The effect of the State's interpretation is that no person on a detention order will be able to seek a s 30 review until at least their second review is approaching under the new provisions. That is, their second biennial review. This is not, the applicant submits, the clear intention of s 30.
In my view, the purpose of s 30(3) is to limit an application under that section to being brought in the second year of any two year period between reviews. Reviews cannot therefore occur within one year of the last review.
In the transition from annual to biennial reviews, all detainees would come up for a final annual review which, if affirmed, would result in the next review being in two years. It cannot have been intended that there could be no s 30 reviews in the second year of that initial period. There is no obvious purpose or rationale for depriving a person of a special review in the second year of the first two year period but not in all subsequent two year review periods. If it were intended that detainees would be deprived of such a right, it would be expected that this would be more clearly stated in the legislation.
Furthermore, the second reading speech for the amending Act, whilst not dealing with this issue specifically, seems to suggest that the intention was that detainees could seek a special review in the second year of any review period. No distinction was made between the two‑year period that might follow an annual review after the legislation was amended, and two-year periods following biennial reviews. Therefore, it better reflects the intention of Parliament for the interpretation of the State not to be accepted.
Section 30(3) does not refer to an annual or a biennial review, just to a review under s 29(2)(b). This must be understood in context as a review under that section as it stood at the time that review was conducted. Clearly, s 30(3) is referring to reviews that occurred at some point in the past. Given that s 29(2)(b) has changed it would be meaningless to refer only to reviews as the section now stands. It would mean that no reviews conducted before the amendments could be taken into account for the purposes of s 30.
The last review was, in my view, a review under s 29(2)(b) as it then stood, and that is how s 30(3) should be interpreted. Accordingly, this application has been brought over one year since the last review, thus, in my view, it is competent.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
Associate to the Honourable Justice Hall21 DECEMBER 2018
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