Director of Public Prosecutions v Green

[2022] TASSC 68

[2022] TASSC 68

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Director of Public Prosecutions v Green [2022] TASSC 68
PARTIES:	DIRECTOR OF PUBLIC PROSECUTIONS
v
GREEN, Nathan Michael
FILE NO:	693/2022
DELIVERED ON:	14 December 2022
DELIVERED AT:	Hobart
HEARING DATE/S:	6 December 2022
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Orders and declarations relating to serious or violent offenders or dangerous sexual offenders – Serious or violent offender – Tasmania – High risk offenders – "relevant offender" – Person serving third cumulative sentence after sentence for serious offence.

Dangerous Criminals and High Risk Offenders Act 2021 (Tas), s 24.

Aust Dig Criminal Law [3356]

REPRESENTATION:

Counsel:

Applicant:	D Earley
Respondent:	R Mainwaring

Solicitors:

Applicant:	Director of Public Prosecutions
Respondent:	Tasmania Legal Aid

Judgment Number:	[2022] TASSC 68
Number of paragraphs:	16

Serial No 68/2022 File No 693/2022

DIRECTOR OF PUBLIC PROSECUTIONS v NATHAN MICHAEL GREEN

REASONS FOR JUDGMENT BLOW CJ
14 December 2022

1             The Director of Public Prosecutions ("the DPP") has applied for a High Risk Offender ("HRO") order in respect of the respondent, Nathan Michael Green. Counsel for the respondent has submitted that the provisions of the Dangerous Criminals and High Risk Offenders Act 2021 ("the Act") do not apply to him. The DPP contends that the Act does apply.

2 Section 33(1) of the Act provides that the DPP may apply to this Court for an HRO order in relation to "a person who is, at the time when the application is made, a relevant offender". The application in this case was filed on 13 July 2022. The respondent contends that he was not then a "relevant offender".

3 That term is defined in s 24 of the Act as follows:

"relevant offender means an offender who has been convicted of a serious offence,
who has attained the age of 18 years and who is –

(a) in custody –

(i) pursuant to a declaration under section 7(1) ; or
(ii) in accordance with section 37(2) ; or

(iii) in accordance with an order under section 18(1) or (4) ; or

(b) subject to an HRO order or an interim HRO order; or

(c) serving a custodial sentence –

(i) for a serious offence; or

(ii) for an offence against section 41 ; or

(iii) for an offence, against a law of this State, another State, a Territory or the Commonwealth, that is being served concurrently with or cumulatively on, or partly concurrently with and partly cumulatively on, one or more sentences of imprisonment referred to in subparagraph (i) or (ii)".

4 The parties are in dispute as to the scope of subpar(c)(iii) of that definition. The respondent has been in prison since 15 December 2011. He has been serving a series of cumulative sentences. The tenth of those sentences was a sentence of eight months' imprisonment for wounding. Under the Act, s 3(1) and Sch 1, wounding constitutes a "serious offence". The respondent finished serving his sentence for wounding on 19 December 2020. By the time the present application was filed, he had completed two more cumulative sentences, and was serving another one. None of those subsequent sentences were for "serious offences" as defined.

5             The DPP contends that the respondent falls within the scope of subpar (c)(iii) of the definition of "relevant offender". He contends that, at the time of the application, the respondent was "serving a custodial sentence … for an offence, against a law of this State, … that is [or was] being served … cumulatively on … one or more sentences of imprisonment referred to in subparagraph (i)". That is to

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say, he contends that the words "cumulatively on" are wide enough to refer to any earlier sentence in
an unbroken string of cumulative sentences.

6             The respondent contends that subpar (c)(iii) of the definition of "relevant offender" does not apply because the sentence being served at the time of the application did not commence immediately after the sentence for the serious offence, but only after an interval when other sentences were being served.

7             Counsel for the respondent submitted that, in its ordinary meaning, the word "cumulative" refers to a sentence that follows on immediately after the completion of a previous sentence. She referred me to the following definition in a publication by the Tasmanian Sentencing Advisory Council: A Guide to Sentencing in Tasmania, at page (viii):

"Cumulative sentences: Individual sentences, given for each of the charges in a case, that are to be served one after the other, rather than at the same time. For example, two prison sentences each of five years served wholly cumulatively would mean a total of 10 years in prison."

8             That definition is inaccurate, in that it should also include sentences, to be served one after the another, imposed in two or more separate cases. It is inaccurate in that it refers only to the situation in which cumulative sentences are imposed in a single case.

9             That definition is not helpful to the respondent. When the application was filed, he was serving a sentence that a magistrate imposed on 28 January 2020. At that time he had not begun to serve the sentence on the wounding charge. He did not begin to serve that sentence until 19 April 2020. According to the respondent's record of prior convictions, the sentence imposed on 28 January 2020 was "to be served cumulatively with to (sic) any other period of imprisonment". Thus the sentence being served at the time of the application, when imposed, was expressed to be cumulative with other sentences, including the sentence for wounding.

10 Section 8A of the Acts Interpretation Act 1931 requires an interpretation that promotes the purpose or object of the Act to be preferred to one that does not. The long title to the Act says that it is "An Act to provide for the protection of the community from persons who have committed offences involving violence, or an element of violence, and who are declared to be dangerous criminals, or who have committed serious offences and are determined to be at a high risk of committing further serious offences …". Section 36(1) of the Act provides as follows:

"(1) The safety of the community must be the paramount consideration of the Supreme Court in determining whether or not to make an HRO order in relation to an offender."

11 Clearly the purpose of the legislation empowering the Court to make HRO orders is to provide protection to the community from former prisoners who have committed offences involving violence and are considered to be at a high risk of committing further offences involving violence. A wide interpretation of the definition of "relevant offender" would promote the purpose of the Act, and a narrow one would not, since there are likely to be some individuals at a high risk of committing further offences of violence who do not fall within the scope of a narrow interpretation. Since the making of an HRO order depends upon the exercise of a judge's discretion, there should be no risk of a wide interpretation resulting in the making of an order in respect of an inappropriate individual.

12          Support for a wide interpretation can also be found in the history of the relevant provision. As originally enacted in 2021, subpar (c)(iii) of the definition of "relevant offender" read as follows:

"(iii) for an offence, against a law of this State, another State, a Territory or the Commonwealth, that is being served concurrently with or consecutively on, or partly

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concurrently with and partly consecutively on, one or more sentences of imprisonment
referred to in subparagraph (i) or (ii)". (My emphasis.)

13           That subparagraph was amended by the Justice and Related Legislation (Miscellaneous Amendments) Act 2022 by omitting "consecutively" and substituting "cumulatively" in two places. In the second reading speech relating to the amendment, the Attorney-General, the Hon Elise Archer MP, said the following:

"The Bill also replaces the references to 'consecutively' with the term 'cumulatively' in sections 24(c)(iii) and 32(2)(b)(iii). As 'consecutively' is not defined in the Act, the amendments will ensure the provision can operate as intended, which is to cover situations where further sentences are imposed and are to operate in addition to the first sentence."

14          Before the amendment, the subparagraph applied only in relation to concurrent sentences and sentences that followed consecutively after a sentence or sentences for one or more serious or s 41 offences. The purpose of the amendment must have been to cover the situation where the sentence at the time of the application was immediately preceded by one or more sentences that were neither for serious offences nor s 41 offences.

15           Because of the need to give the relevant provision a purposive interpretation, and because of its history, I reject the submissions made on behalf of the respondent. I hold that when, as in this case, a sentence for a serious offence or a s 41 offence is followed by an uninterrupted series of cumulative sentences, each of the cumulative sentences must be regarded as one served cumulatively on the sentence for the serious offence or s 41 offence.

16   It follows that this Court has the power to make an HRO order in respect of the respondent.