GY v Commissioner of Police
[2014] WASCA 9
•9 JANUARY 2014
GY -v- COMMISSIONER OF POLICE [2014] WASCA 9
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 9 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:39/2013 | 12 SEPTEMBER 2013 | |
| Coram: | McLURE P NEWNES JA MURPHY JA | 9/01/14 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GY COMMISSIONER OF POLICE |
Catchwords: | Criminal law Community Protection (Offender Reporting) Act 2004 (WA) Appellant sentenced to finite term for sexual offence and indefinite detention Criminal Code (WA) s 662 Appellant served finite term In custody under order for indefinite detention when Act came into force Whether 'reportable offender' Whether in custody 'in respect of' reportable offence |
Legislation: | Community Protection (Offender Reporting) Act 2004 (WA), s 3, s 6, s 9 Criminal Code (WA), s 662 |
Case References: | McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45 The State of New South Wales v Kable (No 2) [2013] HCA 26 Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GY -v- COMMISSIONER OF POLICE [2014] WASCA 9 CORAM : McLURE P
- NEWNES JA
MURPHY JA
- Appellant
AND
COMMISSIONER OF POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BIRMINGHAM DCJ
Citation : Judgment Suppressed
Catchwords:
Criminal law - Community Protection (Offender Reporting) Act 2004 (WA) - Appellant sentenced to finite term for sexual offence and indefinite detention - Criminal Code (WA) s 662 - Appellant served finite term - In custody under order for indefinite detention when Act came into force - Whether 'reportable offender' - Whether in custody 'in respect of' reportable offence
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA), s 3, s 6, s 9
Criminal Code (WA), s 662
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms K J Farley
Respondent : Mr P D Yovich
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Commissioner of Police
Case(s) referred to in judgment(s):
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45
The State of New South Wales v Kable (No 2) [2013] HCA 26
Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642
1 McLURE P: I agree with Newnes JA's construction of the Community Protection (Offender Reporting) Act 2004 (WA) (the Act) and with his conclusion that the appeal should be dismissed.
2 I agree with the appellant's description of the result as extraordinary. The appellant comes within the scope of the Act because, at the time of its commencement, he was being held in custody pursuant to an indefinite preventive detention order (the s 662 order) made by Wallace J in March 1987, upheld by the Court of Criminal Appeal (by a majority) in July 1987 and quashed by the High Court more than 26 years after it was imposed. The High Court held that the sentencing judge erred in imposing the s 662 order and that the Court of Criminal Appeal erred in dismissing the appeal against that order.
3 The High Court said that the evidence before the sentencing judge was incapable of supporting the s 662 order which should not have been made. Order 2 made by the High Court is in terms:
Set aside the order of the Court of Criminal Appeal of the Supreme Court of Western Australia declining to interfere with the order made by Wallace J under s 662 of the Criminal Code (WA) and in lieu thereof quash that order.
4 It was accepted by both parties, correctly in my view, that order 2 operates prospectively, not retrospectively. Accordingly, it is unnecessary to determine whether there is power under the former ch LXIX of the Criminal Code or otherwise to backdate the order quashing the s 662 order.
5 The appellant is only an 'existing controlled reportable offender' because, at the time of the commencement of the Act, he had spent more than 10 of a total of around 18 years in prison under a preventive detention order that should not have been made. However, the text, context and purpose of the Act leaves no room for any outcome other than that reached by the primary judge.
6 NEWNES JA: This is an appeal against a decision of Birmingham DCJ in the District Court that the appellant was a reportable offender under the Community Protection (Offender Reporting) Act 2004 (WA) (the Act) and that an interim prohibition order under s 92 of the Act should be made.
7 The appellant contends that the primary judge erred in finding that he was a reportable offender.
Background
8 The appeal arises out of highly unusual circumstances. On 12 February 1987, the appellant pleaded guilty to offences of deprivation of liberty and aggravated sexual assault against a 7-year-old girl.
9 It was common ground that, on 13 March 1987, Wallace J sentenced the appellant to a total effective term of 7 years' imprisonment for the offences and ordered that at the conclusion of that term the appellant be detained during the Governor's pleasure in a prison, pursuant to s 662(a) of the Criminal Code (WA) (the s 662 order). An appeal against the term of 7 years' imprisonment was subsequently upheld and the sentence reduced to 6 years and 3 months' imprisonment. By a majority, the appeal against the s 662 order was dismissed. The appellant's total effective sentence of 6 years and 3 months' imprisonment was completed in about June 1993. The appellant remained in custody after that date under the s 662 order.
10 The commencement date of the Act was 1 February 2005.
11 In 2012, the appellant sought special leave to appeal to the High Court against the decision of the Full Court dismissing his appeal against the s 662 order. The appeal was heard on 13 February 2013 and allowed on 14 March 2013. The s 662 order was quashed and the appellant released from custody immediately. He had been in custody for more than 26 years.
12 On 14 March 2013, the respondent applied under the Act for an interim child protection prohibition order in respect of the appellant as a 'reportable offender' under the Act. On 5 April 2013, the primary judge made the order.
The statutory scheme
13 Before turning to the reasons of the primary judge, it is convenient to describe the relevant statutory framework.
14 The starting point is s 662 of the Criminal Code which, at the relevant time, was in the following terms:
When any person is convicted of any indictable offence (whether such person has been previously convicted of any indictable offence or not), the court before which such person is convicted may, if it thinks fit, having regard to the antecedents, character, age, health or mental condition of the person convicted, the nature of the offence and any special circumstances of the case -
(a) direct that upon the expiration of the term of imprisonment then imposed upon him he be detained during the Governor’s pleasure in a prison; or
(b) without imposing any term of imprisonment upon him sentence him to be forthwith committed to a prison, and to be detained there during the Governor’s pleasure.
15 Section 688(1a), as it then appeared was as follows:
A person convicted on indictment … may appeal to the Court of Criminal Appeal -
(a) against any sentence of detention in a prison passed upon him under s 661 or 662 of this Code; and
(b) with the leave of the Court of Criminal Appeal, against any other sentence passed upon him, unless the sentence is one fixed by law.
16 Turning to the Act, the evident purpose of the Act is to enable the whereabouts and activities of offenders who have committed sexual and certain other offences to be monitored and supervised by authorities, with the object of preventing further offending and to assist in the apprehension of the offender if further offending does occur. The Act is described in its long title as:
An Act to require certain offenders who commit sexual or certain other serious offences to keep police informed of their whereabouts and other personal details for a period of time to reduce the likelihood that they will reoffend and to facilitate the investigation and prosecution of any further offences that they may commit, to enable information to be published about certain offenders, to enable courts to make orders prohibiting certain offenders from engaging in specified conduct, and for related purposes.
17 The term 'reportable offence' is used to describe the offences to which the Act applies and the offenders to which it applies are called 'reportable offenders'.
18 The Act provides, by pt 3, for extensive obligations of continuing reporting by 'reportable offenders' in relation to matters such as their residence and the names of any children who reside there, their means of electronic communication, their employment, any organisations to which they belong in which children are involved, details of their motor vehicle, and any proposed travel outside Western Australia. Part 4 provides for a Community Protection Offender Register to be maintained, and pt 5A enables the Commissioner of Police to publish information about a reportable offender in certain circumstances. Part 5 enables orders to be made on the application of the Commissioner of Police prohibiting a reportable offender, among other things, associating with certain persons, being in specified locations or kinds of locations, engaging in specified behaviour, or being in specified employment or employment of a specified kind.
19 The Act applies not only to offenders who have committed a reportable offence after the Act came into operation but also to certain past offenders. In s 6 of the Act, a 'reportable offender' includes:
(1) … a person whom a court, on or after the commencement date, sentences for a reportable offence.
(2) A person is also a reportable offender if -
(a) the person was sentenced for a reportable offence before the commencement day and is an existing controlled reportable offender in respect of that offence.
[A] person who, as a result of having been sentenced for a reportable offence, was under the supervision of a supervising authority or any other person immediately before the commencement day and includes a person who was in government custody in respect of a reportable offence at that time.
- and 'government custody'is defined to mean (relevantly):
[C]ustody as a prisoner or detainee or as a mentally impaired accused whether the custody order made under the Criminal Law (Mentally Impaired Accused) Act 1996 Part 4, as originally made, requires the person to be kept in strict government custody.
22 Under s 9 of the Act, a 'reportable offence' includes a 'Class 1 offence'. A 'Class 1 offence' is defined in s 10 to include an offence against a provision listed in sch 1 of the Act. The Class 1 offences listed in sch 1 include sexual offences against a child under the age of 13 years and aggravated sexual penetration without consent if the person against whom the offence is committed is a child.
The reasons of the primary judge
23 The primary judge found that the offences for which the appellant had been sentenced were each a 'reportable offence' and that at the commencement date of the Act the appellant was in custody pursuant to the s 662 order [16] - [17]. His Honour further found that while in custody pursuant to the s 662 order the appellant was an 'existing controlled reportable offender' because he was in custody 'in respect of a reportable offence' [19].
24 His Honour considered that the words 'in respect of a reportable offence' did not require a direct and immediate connection with the conduct which constituted the reportable offence. It was sufficient that the detention had a connection with the reportable offence [20]. There was such a connection in this case as an order under s 662 could not be made unless there was a conviction in respect of an indictable offence. The s 662 order had been made following the appellant's conviction for an offence which fell within the definition of a Class 1 offence under the Act [21].
25 As the appellant was in custody pursuant to the s 662 order at the commencement date of the Act he was a reportable offender under the Act and amenable to an order under s 92 of the Act [22] - [23].
26 His Honour then went on to consider whether such an order should be made and ultimately concluded that it should. It is unnecessary to canvass the reasons his Honour came to that view or the terms of the order he made, those not being issues on the appeal.
The ground of appeal
27 The sole ground of appeal was that the primary judge erred in concluding that the appellant was a reportable offender and consequently amenable to an interim prohibition order.
The disposition of the appeal
28 I did not understand it to be in issue on the hearing of the appeal that immediately before the commencement date of the Act the appellant was in 'government custody', within the meaning of the Act, pursuant to the s 662 order and that, notwithstanding that the s 662 order has since been quashed, he was lawfully in custody: see The State of New South Wales v Kable (No 2) [2013] HCA 26. A contention that he was not then lawfully in custody was advanced in the appellant's written submissions but, if not actually abandoned by the appellant's counsel, was at least not pressed. I do not think there is any doubt that he was in 'government custody' within the meaning of the Act and that he was lawfully in custody.
29 It was conceded by the appellant's counsel (correctly in my view) that each of the offences the appellant was convicted of in 1987 fell within the definition of a Class 1 offence and was therefore a 'reportable offence' for the purpose of the Act.
30 The appellant's case was based on the proposition that, as at 1 February 2005, the appellant was not an 'existing controlled reportable offender' because, being in prison solely pursuant to the s 662 order, he was not in prison in respect of a reportable offence. The matter can conveniently be disposed of on that basis without needing to consider whether the appellant otherwise fell within the general definition of an 'existing controlled reportable offender'.
31 As I understand the definition of 'existing controlled reportable offender', it is in two parts. It contains an exhaustive meaning of 'existing controlled reportable offender', being 'a person who, as a result of having been sentenced for a reportable offence, was under the supervision of a supervising authority or any other person immediately before the commencement day'. It then further provides, for the avoidance of doubt, that that meaning is to be taken to include 'a person who was in government custody in respect of a reportable offence at that time'. The latter, inclusive, words do not limit the definition. See Pearce DC and Geddes RS, Statutory Interpretation in Australia (7th ed, 2011) [6.65] and the cases there cited.
32 The phrase 'in respect of' ordinarily has a very wide meaning, although it must be understood in its context and the context will determine the matters to which it extends: Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45, 47; Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642, 653. The nexus which that expression requires in the definition of 'existing controlled reportable offender' is not capable of precise definition but plainly there must be a rational connection between the government custody to which the person was subject immediately before the commencement date of the Act and the reportable offence of which the person was convicted.
33 In my view, there was clearly the necessary connection between the s 662 order pursuant to which the appellant was in custody at the time the Act came into force and the reportable offences of which he was convicted. The order under s 662 was a consequence of the conviction for the reportable offences. The power of the court to make the order under s 662 was exercisable only because the appellant was convicted of an indictable offence (in this instance, the reportable offences) and the order for indefinite detention was made in addition to the finite sentence imposed for that offence. The sentence of the finite term and the making of the s 662 order were not separate and distinct from each other but formed part of a single sentencing decision: see McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [7] - [9].
34 In McGarry, the offender had been convicted of indecent dealing with a child under the age of 13 years. He was sentenced to 5 years' imprisonment and, in addition, an order was made for his indefinite imprisonment under s 98 of the Sentencing Act 1995 (WA) (s 662 of the Criminal Code having been repealed). He appealed under s 688(1a) of the Criminal Code to the Court of Criminal Appeal against the order for the indefinite term (under s 688(1a)(a)) and against the finite term (under s 688(1a)(b)). The finite term was reduced on appeal to 3 years' imprisonment, but the order for the indefinite term was affirmed. The majority (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ) held that once it was found that the sentencing judge's discretion had miscarried in respect of the finite term, the whole of the sentence, including the indefinite term, should be set aside and the appellate court should then resentence the offender. That was because the decision to fix the finite sentence and the decision to make an order for an indefinite term of imprisonment formed part of a single sentencing decision. The order for indefinite imprisonment was part of the sentence imposed [7] - [8].
35 While that case involved an indefinite term of imprisonment imposed under s 98 of the Sentencing Act,I consider it applies equally to the circumstances of the present case. While s 98 differs from s 662 in some respects, most notably in the criteria to be applied in determining whether a court ought to make an order for indefinite imprisonment, the differences are not material for present purposes. Relevantly, in the present case the order was made, as under s 98 an order of indefinite detention can only be made, upon a conviction for an indictable offence and in addition to a finite term of imprisonment for that offence.
36 In my view, the fact that when the Act came into force the appellant was in prison pursuant to the s 662 order meant that he was in prison 'in respect of' a reportable offence for the purposes of the Act. Accordingly, the appellant was an 'existing controlled reportable offender' and, as the primary judge found, a 'reportable offender' within the meaning of s 6 of the Act and amenable to an order under s 92.
37 While, as suggested by the appellant's counsel in her written submissions, the result in the circumstances of this case might be regarded as extraordinary, in ordinary circumstances there does not seem to me anything remarkable about the proposition that a person in custody under an order of indefinite imprisonment imposed in conjunction with a finite sentence for a reportable offence should fall within the definition of a 'reportable offender' under s 3 of the Act.
38 The appeal should be dismissed. It is unnecessary to consider the respondent's notice of contention, which sought to uphold his Honour's decision on other grounds. It is also unnecessary to consider the exercise of his Honour's discretion to make the order under s 92 of the Act, as that was not an issue on the appeal.
Conclusion
39 I would dismiss the appeal.
40 MURPHY JA: I agree with Newnes JA.