Ling v Director of Public Prosecutions - [2025] WASC 459

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   LING -v- DIRECTOR OF PUBLIC PROSECUTIONS [2025] WASC 459
CORAM:   LEMONIS J
HEARD:   23 JUNE 2025
DELIVERED          :   3 NOVEMBER 2025
FILE NO/S:   SJA 1017 of 2025
BETWEEN:   HONG OM LING
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S DE MAIO
File Number            :   PE 73210/2024, PE 73211/2024, PE 73212/2024, PE 73213/2024, PE 628/2025

Catchwords:

Construction of amendments to the Sentencing Act 1995 (WA) pertaining to electronic monitoring of offenders - consideration of whether the relevant provisions require that the offender be bound by a Family Violence Restraining Order protecting the victim of the offending at the time of sentencing, or at the time the offence was committed

Legislation:

Bail Act 1982 (WA)
Children and Community Services Act 2004 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Family Violence Legislation Reform Act 2024 (WA)
High Risk Serious Offenders Act 2020 (WA)
Interpretation Act 1984 (WA)
Restraining Orders Act 1997 (WA)
Sentence Administration Act2003 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	E Zillessen
Respondent	:	N Sinton

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	Director of Public Prosecutions for The State of Western Australia

Case(s) referred to in decision(s):

Chief Executive Officer, Department of Water and Environmental Regulation v Waroona Resources Pty Ltd [2023] WASCA 73
CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Cochrane v The State of Western Australia [2021] WASCA 5
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Kidd v The State of Western Australia [2014] WASC 99
Mohammadi v Bethune [2018] WASCA 98
Prichard v M 6-8 Legal Pty Ltd [2024] WASCA 4
Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193
Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9
The State of Western Australia v Stocker [2022] WASCA 178
The State of Western Australia v Williams [2022] WASCA 105

LEMONIS J:

This appeal concerns the proper construction of amendments made to the Sentencing Act 1995 (WA) (Sentencing Act) to address the scourge of domestic violence. The amendments require mandatory electronic monitoring of an offender in prescribed circumstances.
The provisions under consideration were enacted as part of a suite of amendments made to the Sentencing Act, the Sentence Administration Act2003 (WA) (SAA) and the Bail Act 1982 (WA) (Bail Act) pursuant to the Family Violence Legislation Reform Act 2024 (WA) (Reform Act). The operation of the relevant amendments commenced on 18 December 2024.
The background to the appeal is relatively straightforward. The issue raised by the appeal is not. I have been greatly assisted by the considered submissions of both counsel in resolving the issue.
On 7 March 2025, the appellant was sentenced by the learned magistrate to 3 years imprisonment, conditionally suspended for 2 years by way of five conditional suspended imprisonment orders. They are in respect of the following offences:
(1)impeding another person's normal breathing by applying pressure to the person's neck in circumstances of aggravation, which is an offence under s 298(b) of the Criminal Code (WA) (Code). The appellant was sentenced to 2 years imprisonment, which was the head sentence;
(2)being armed in a way that may cause fear, which is an offence contrary to s 68(1) of the Code. The appellant was sentenced to 12 months imprisonment, cumulative on the 2 year head sentence;
(3)threatening to kill in circumstances of aggravation, which is an offence contrary to s 338B(1)(a)(ii) of the Code. The appellant was sentenced to 12 months imprisonment, which was to be served concurrently;
(4)obstructing a public officer in the performance of the officer's functions, which is an offence contrary to s 172(2) of the Code. The appellant was sentenced to 3 months imprisonment, which was to be served concurrently; and
(5)common assault in circumstances of aggravation which is an offence contrary to s 313(1)(a) of the Code. The appellant was sentenced to 6 months imprisonment, which was to be served concurrently.
The appellant pleaded guilty to the five offences. They were all committed as part of one overall incident that took place on 29 December 2024 at the appellant's family home. The victim of the offences described at points 1 and 5 of [4] above was the appellant's wife. The victims of the offence described at point 3 were the appellant's wife and his eldest daughter, then 16. The offence described at point 2 was committed in the presence of the appellant's wife and eldest daughter. The offence described at point 4 was committed in respect of the police officers who came to the appellant's family home after the appellant's eldest daughter had dialled 000. The circumstance of aggravation in respect of the offences at points 1, 3 and 5 was the family relationship between the appellant and the victims.
Each of the offences described at points 1, 3 and 5 is a 'family violence offence (category A)' as defined by s 4 of the Sentencing Act.
When the appellant was sentenced, he was bound by a Family Violence Restraining Order (FVRO) that protected his wife and daughter. When the appellant committed the offences, an FVRO was not in place.
Her Honour imposed an electronic monitoring requirement pursuant to s 84CA(3C) of the Sentencing Act in a very well reasoned decision.
Section 84CA of the Sentencing Act applies to conditional suspended imprisonment. Section 84CA(3C) provides for mandatory electronic monitoring, save for exceptional circumstances. Section 84CA(3C) only applies in certain circumstances, which include where the criteria in s 84CA(3A)(a) are satisfied. In a general sense, those criteria are that the offender has committed a particular type of offence, being a family violence offence (category A), and the offender is bound by an FVRO protecting the victim of the offence.
By imposing electronic monitoring, her Honour in effect held:
1.The appellant committed three offences, which were each a family violence offence (category A), being the offences against his wife and the offence against his wife and daughter.
2.At the time of sentencing, the appellant was bound by an FVRO.
3.The FVRO protected his wife and daughter.
4.There were not exceptional circumstances why electronic monitoring should not be imposed.
The appellant accepts the matters set out at points 1 to 3 of [10] above. He does not contest her Honour's finding set out at point 4.
The issue raised by the appeal is a discrete one as to the proper construction of s 84CA(3A)(a). Specifically, the issue is whether s 84CA(3A)(a) requires that the FVRO is in place at the time of commission of the offence, or at the time of sentencing. The appellant contends it is at the time of commission of the offence. If he is correct, then s 84CA(3A)(a) did not apply and her Honour would have erred in imposing the electronic monitoring requirement under s 84CA(3C).
The respondent (the Director) says that s 84CA(3A)(a) requires the FVRO to be in place at the time of sentencing. If that is correct, then the appeal fails.
The parties eschewed a construction of the provisions to the effect that s 84CA(3A)(a) is engaged if the FVRO was in place at either the time of the offence or at the time of sentencing. I think the parties are correct not to suggest that either one of those two scenarios would be sufficient. As I will come to explain, the Sentencing Act is directed to the FVRO being in place at one particular point in time. The question is, which one?

Ground of appeal

There is one ground of appeal:
1.The learned magistrate erred in law by imposing an electronic monitoring requirement on the appellant as part of his sentences of Conditional Suspended Imprisonment pursuant to ss 83CA(3A) and (3C) of the Sentencing Act 1995 (WA).
Particular:
1.1Sections 83CA(3A) and (3C) do not provide power to impose electronic monitoring when the person against whom the offender has committed a 'Category A' offence is not protected by a Family Violence Restraining Order binding the offender when the offence was committed.

Statutory basis for the appeal

The appeal is brought pursuant to s 7(1) of the Criminal Appeals Act 2004 (WA) (CA Act), the appellant being a person aggrieved by the decision of the learned magistrate to impose electronic monitoring. The available grounds of appeal include that the learned magistrate made an error of law,[1] which is the ground here. Leave is required for the ground of appeal. I must not grant leave unless I am satisfied the ground has a reasonable prospect of succeeding.[2]
[1] Criminal Appeals Act 2004 (WA), s 8(1)(a)(i).
[2] Criminal Appeals Act 2004 (WA), s 9.
The ground of appeal contends that her Honour did not have power to impose electronic monitoring in the circumstances. If that ground is made out, it follows that an order should be made setting aside the electronic monitoring requirement. It would not be necessary to resentence the appellant.

Principles of statutory construction

In Prichard v M 6:8 Legal Pty Ltd,[3] the Court of Appeal in a joint judgment reiterated the importance of statutory text to the exercise of statutory construction. Their Honours said: [4]
… statutory construction is a process of determining the objective meaning of the legislation by the application of recognised rules of interpretation to the legislative text, understood as a whole and in its context.
…
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.
Legislative purpose is to be ascertained from what the legislation says, rather than any assumption about the desired or desirable reach or operation of the relevant provisions. Identifying the legislative purpose is itself an objective exercise of statutory construction, which does not involve a search for what those who promoted or passed the legislation may have had in mind when it was enacted… Nor is it for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.
(footnotes omitted)
[3] Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4.
[4] Prichard [41] - [44].
The grammatical, or literal, meaning of statutory text does not necessarily equate to its legal meaning. In Taylor v The Owners - Strata Plan No 11564, Gageler and Keane JJ said:[5]
Statutory construction involves attribution of legal meaning to statutory text, read in context. "Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always." Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.
(footnotes omitted)
[5] Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 [65] - [66].
While their Honours were in dissent, the majority judgment in Taylor was not inconsistent with this passage.
The observations of Gageler and Keane JJ in Taylor were adopted by the Court of Appeal in the following passage in Mohammadi v Bethune:[6]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.
Discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural'. In such a case, the choice 'turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies'…
Thus, the material provisions of the Act must be understood, if possible, as parts of a coherent whole.
(footnotes omitted)
[6] Mohammadi v Bethune [2018] WASCA 98 [32] - [35]. See also Chief Executive Officer, Department of Water and Environmental Regulation v Waroona Resources Pty Ltd [2023] WASCA 73 [40]; Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 (Sydney Seaplanes) [26].
Further, it is now accepted that context has a broad meaning and extends to material extraneous to the text. In CIC Insurance Ltd v Bankstown Football Club Ltd, Brennan CJ, Dawson, Toohey and Gummow JJ said that context was used: [7]
… in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as [reports of law reform bodies], one may discern the statute was intended to remedy.
[7] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408.
In Stevens v Kabushiki Kaisha Sony Computer Entertainment, McHugh J said:[8]
And context is not limited to the text of the rest of the statute. For purposes of statutory construction, context includes the state of the law when the statute was enacted, its known or supposed defects at that time and the history of the relevant branch of the law, including the legislative history of the statute itself. It also includes in appropriate cases "extrinsic materials" such as reports of statutory bodies or commissions and parliamentary speeches – indeed any material that may throw light on the meaning that the enacting legislature intended to give to the provision.
[8] Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193 [124].
This is so notwithstanding the limitations in s 19 of the Interpretation Act 1984 (WA) (Interpretation Act) as to when extrinsic materials may be called in aid.[9] Section 19 provides that the court can have regard to extrinsic material to confirm that the meaning of a provision is the ordinary meaning conveyed by the text, taking into account context and the purpose or object of the legislation, and to determine the meaning of a provision when it is ambiguous or obscure. Section 19(2) provides that extrinsic materials include the Explanatory Memorandum for the Bill which proposed the Act and the Second Reading Speech in the Legislative Assembly of State Parliament.
[9] Sydney Seaplanes [41].
Extrinsic materials cannot, however, displace the meaning of the statutory text, nor is the examination of them an end in itself.[10] As I understand it, this qualification is directed to the extrinsic materials not displacing the legal meaning of the text. It is not directed to the grammatical meaning alone.

Introductory observations

[10] See Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39].

As I have already said, the Reform Act enacted amendments to the Bail Act, the Sentencing Act and the SAA.
The relevant amendments were made to address specified categories of family violence offending. Those categories are family violence offence (category A) and family violence offence (category B). I will call these respectively category A offences and category B offences. As I will come to explain, the category A offences are all offences under the Code.The category B offences include the same Code offences as category A offences, with the addition of two offences under the Restraining Orders Act 1997 (WA) (RO Act).
In general terms, the Reform Act made amendments to:
(1)the Bail Act pertaining to the grant of bail to an accused charged with category A offences or category B offences;
(2)the Sentencing Act pertaining to the scenario where an offender is convicted of a category A offence or category B offence and the sentencing disposition is not immediate imprisonment; and
(3)the SAA pertaining to the scenario where an offender sentenced to imprisonment for category A offences or category B offences is released on a re‑entry release order (RRO) or on parole, or is subject to a post‑sentence supervision order (PSSO) after having completed their prison term.
The amendments therefore deal with a person's involvement in the criminal justice system from the point in time of being charged, through to the point in time of being sentenced, and if sentenced to a term of imprisonment, to the point of being released from prison.
I will now set out the legislative provisions that are of significance to the question of construction raised by this appeal. By way of brief introduction, the various different avenues provided in the Sentencing Act for the imposition of electronic monitoring, and the interaction between the Sentencing Act and the RO Act, are of particular importance to the resolution of this appeal.

The Sentencing Act

The provision under direct consideration is s 84CA of the Sentencing Act. It applies to conditional suspended imprisonment (CSI).
Section 81 of the Sentencing Act permits the imposition of CSI in certain circumstances. It provides that where a court sentences an offender to a term of imprisonment or an aggregate of terms of imprisonment of 60 months or less, the court may suspend the term on conditions for not more than 24 months. In determining whether the aggregate of the terms of imprisonment is 60 months or less, the current position in Western Australia is that a 'totality exercise' is undertaken.[11] Thus, the aggregate is referable to the total effective sentence, not the sum of the separate sentences.
[11] See The State of Western Australia v Stocker [2022] WASCA 178 [61] and [151].
If during the suspension period, the offender commits an offence that has a statutory penalty that includes imprisonment, or breaches certain of the conditions, the offender is liable to be required to serve all or part of the term of imprisonment.[12]
[12] Sentencing Act, s 84E, s 84F, s 84K and s 84L.
CSI has standard obligations and primary requirements. The standard obligations are set out in s 83 and are predominantly directed to ensuring that the offender can be readily located.

The primary requirements are set out in s 84:
CSI, primary requirements of
(1)CSI must contain at least one of these primary requirements —
(a)a programme requirement under section 84A;
(b)a supervision requirement under section 84B;
(c)a curfew requirement under section 84C.
(2)CSI may also contain an electronic monitoring requirement under section 84CA as a primary requirement.
The primary requirements predominantly serve two purposes.[13] The offender's rehabilitation, and the reduction and management of the risk that the offender might re-offend. Those purposes run hand in hand. The greater the gains in rehabilitation, the less risk there is of re‑offending. The more focus there is on managing and reducing risk, the greater the chance there is of an offender engaging with rehabilitation.
[13] Sentencing Act, s 84A(1), s 84B(1) and s 84C(1).
Section 84(2) provides that a CSI may also contain an electronic monitoring requirement under s 84CA as a primary requirement. The use of the word 'also' in s 84(2) conveys that an electronic monitoring requirement is in addition to, and not an alternative to, the primary requirements in s 84(1).
I turn now to s 84CA. It states:
Electronic monitoring requirement
(1)The purpose of electronic monitoring of an offender —
(a)under subsection (2) is to enable the location of the offender to be monitored where the offender presents a high risk to —
(i)a person; or
(ii)a group of persons; or
(iii)the community more generally;
and
(b)under subsection (3C) is to enable the location of the offender to be monitored.
(2)If a court considers that electronic monitoring should occur in a particular case, other than a case referred to in subsection (3A), the court may impose a requirement (an electronic monitoring requirement) under this section.
(3)An electronic monitoring requirement may be imposed under subsection (2) only if the court has received a report from the CEO (corrections) about the suitability of electronic monitoring in the particular case.
(3A)Subsection (3C) applies if —
(a)an offence in respect of which CSI may apply is a family violence offence (category A) and —
(i)the offender is bound by a family violence restraining order; and
(ii)the person against whom the family violence offence (category A) was committed is protected by the family violence restraining order;

or
(b)an offence in respect of which CSI may apply is a family violence offence (category B) and the offender is a serial family violence offender.

(3B)For the purposes of subsection (3A)(b), an offender is a serial family violence offender whether the offender was so declared by —
(a)the court referred to in subsection (3C) at the time of the offender's conviction for the family violence offence (category B); or
(b)another court.

(3C)If subsection (3A) applies and a court orders CSI the court must impose a requirement (also an electronic monitoring requirement) for electronic monitoring in respect of the offender under this section, unless the court is satisfied there are exceptional circumstances.
(4)If an electronic monitoring requirement is imposed, a CCO may do 1 or more of the following —
(a)direct the offender to wear an approved electronic monitoring device;
(b)direct the offender to permit the installation of an approved electronic monitoring device at the place where the offender resides or, if the offender does not have a place of residence, at any other place specified by the CCO;
(c)direct the offender to charge the approved electronic monitoring device so as to ensure the device is at all times operational;
(d)direct the offender to not enter 1 or more areas of the State stated in a written notice given to the offender by the CCO.
…

(5)An electronic monitoring requirement ceases to be in force when the suspension period ends.

Section 84CA provides for two routes pursuant to which electronic monitoring can be imposed.
The first route is discretionary, being the exercise of the discretion provided for by s 84CA(2). The second route is where the criteria in s 84CA(3A) are met.
Section 84CA does not provide the court with the discretion to set the period for which electronic monitoring remains in place. Rather, an electronic monitoring requirement imposed under s 84CA ceases to be in force when the suspension period ends.[14]
[14] Sentencing Act, s 84CA(5).
The Reform Act amendments also introduced provisions pertaining to the imposition of electronic monitoring for a pre‑sentence order (PSO), a community‑based order (CBO) and an intensive supervision order (ISO).[15]
[15] Sentencing Act, s 33HA, s 67A and s 76A.
These provisions are substantially similar to s 84CA except in two respects.
First, in respect of a PSO and a CBO, the provisions do not provide the court with a general discretion to impose an electronic monitoring requirement as is provided for by s 84CA(2). The provisions pertaining to a PSO and CBO only permit the imposition of electronic monitoring where the same criteria to those set out in s 84CA(3A) are met. The provisions pertaining to an ISO provide for the imposition of electronic monitoring by way of both of the two routes in s 84CA.
Second, the provisions in respect of a PSO, CBO and ISO require the court to set the term of the electronic monitoring.[16] In each case, the electronic monitoring requirement ceases to be in force when that term ends, or when the relevant sentencing disposition ceases to be in force, whichever happens first. Under s 84CA, the court does not have the power to set the term of electronic monitoring. Rather, it is the term of the suspension period.[17]

Relevant definitions

[16] Sentencing Act, s 33HA(6) and (7), s 67A(7) and (8) and s 76A(4) and (5).

[17] Sentencing Act, s 84CA(5).

Section 84CA(3), s 33HA, s 67A and s 76A use a number of definitions. They are 'family violence offence (category A)', 'family violence offence (category B)', 'family violence restraining order' and 'serial family violence offender' (SFVO).

Category A and category B offences

Section 4 of the Sentencing Act defines a category A offence as follows:
family violence offence (category A) means an offence where the offender and the victim are in a designated family relationship with each other at the time of the commission of the offence and the offence is an offence against The Criminal Code section 221BD, 279, 280, 281, 283, 292, 293, 294, 297, 298, 300, 301, 304, 313, 317, 317A, 323, 324, 325, 326, 328, 332, 333, 338A, 338B, 338C, 338E or 444.
Section 4 of the Sentencing Act defines a category B offence in these same terms, with the addition of two offences against s 61(1) and (1A) of the RO Act. Those offences are, respectively, an offence of breaching an FVRO, and an offence of breaching a VRO.
The definition of a category A offence requires that a requisite Code offence is committed and that the offender and victim are in a 'designated family relationship' at the time of commission of the offence.
The Code offences cover an extensive range of offending. They include physical assaults that range from common assault (s 313) through to unlawful assault causing death (s 281), manslaughter (s 280) and murder (s 279), distribution of intimate images (s 221BD), kidnapping (s 332), deprivation of liberty (s 333), the making of threats (s 338A to s 338C), stalking (s 338E) and wilful destruction of, or damage to, property (s 444). While some offences are less serious than others, the overall seriousness of the offender's behaviour derives from the commission of the offence, and the fact that the offender and the victim were in a designated family relationship at the time of its commission.
Section 4 of the Sentencing Act defines the phrase 'designated family relationship' to mean a relationship between two persons:
1.who are or were married, are or were in a de facto relationship, or have or had an intimate personal relationship;[18] or
2.one of whom:
(a)is a child who ordinarily lives or lived with the other person, or regularly lives or stays, or lived or stayed, with the other person;[19] or
(b)is or was a child of whom the other person is a guardian.[20]
[18] Pars (a) to (c) of the definition of 'designated family relationship' in s 4 of the Sentencing Act.
[19] Par (d) of the definition of 'designated family relationship' in s 4 of the Sentencing Act.
[20] Par (e) of the definition of 'designated family relationship' in s 4 of the Sentencing Act.
An important feature of this definition is that it includes both current and historical relationships.
The definition of 'family relationship' in the RO Act[21] is broader than the definition of 'designated family relationship' in the Sentencing Act. It is not necessary for the purposes of this judgment to describe the differences. It is sufficient to note that all of the relationships that fall within the definition of 'designated family relationship' in the Sentencing Act also fall within the definition of 'family relationship' in the RO Act.

FVRO

[21] RO Act, s 4(1).

Section 4 of the Sentencing Act states that an FVRO has the same meaning given in s 3(1) of the RO Act. Section 3(1) defines an FVRO as meaning an order made under the RO Act imposing restraints of the kind referred to in s 10G of it. I address s 10G at [75] below.

SFVO

Section 4 of the Sentencing Act defines the phrase 'serial family violence offender' as 'a person who is a 'serial family violence offender' under s 124E of the Sentencing Act.
The provisions in the Sentencing Act pertaining to the making of an SFVO declaration:[22]
… are directed towards implementing measures designed to address 'the risk that the offender may commit another family violence offence' and to ameliorate that risk.
(footnote omitted)
[22] The State of Western Australia v Williams [2022] WASCA 105 (Williams) [61].
Section 124E(1) provides the court convicting an offender of a category B offence with a discretion to declare the offender to be an SFVO. The court's discretion is enlivened where the offender has been convicted of a specified number of 'prescribed offences'.[23]
[23] Sentencing Act, s 124E(1).
Broadly speaking, a prescribed offence is a category B offence, a similar such offence committed outside of Western Australia, or an attempt to commit such an offence whether within, or outside, Western Australia.[24]
[24] Sentencing Act, s 124D, definition of 'prescribed offence'.
The number of prescribed offences must be at least:[25]
1.two such offences, which may only be tried on indictment, and have been committed on different days; or
2.three such offences, committed on different days.
[25] Sentencing Act, s 124E(1).
That an offence may only be tried on indictment reflects that the legislature considers it to be of such gravity that it should be heard by a superior court.
The victims of the offences may, but need not be, the same person.[26]
[26] Sentencing Act, s 124E(2)(a).
The Court of Appeal has left open the question as to whether the three prescribed offences referred to at [59(2)] above may include the offence of which the court is convicting the offender. It is not necessary for me to resolve that question on this appeal.[27]
[27] Williams [59].
In deciding whether to make such a declaration, the court must have regard to the level of risk that the offender may commit another category B offence, the offender's criminal record, and the nature of the offences which enliven the court's discretion to make the declaration.[28]
[28] Sentencing Act, s 124E(4).
The court may order an assessment of the offender by an approved expert, whose report may indicate the expert's assessment of the level of risk that the offender may commit another category B offence, and the reasons for that assessment.[29]
[29] Sentencing Act, s 124E(5).
The declaration that a person is an SFVO has effect for an indefinite period.[30] After the declaration has been in place for 10 years, the offender may apply for its cancellation.[31]
[30] Sentencing Act, s 124F(2).
[31] Sentencing Act, s 124F(3).
An SFVO declaration also has significant consequences beyond the electronic monitoring requirements that I am considering.[32] These include that:[33]
… where a court is sentencing a serial family violence offender to a term of imprisonment for a family violence offence, the court must declare the offence to be a serious offence for the purposes of the High Risk Serious Offenders Act2020 (WA) and pt 5A of the Sentence Administration Act 2003 (WA). The latter provisions provide for the making of post-sentence supervision orders by the Prisoners Review Board.
(footnote omitted)
[32] Williams [19] - [24].
[33] Williams [23].
Also, as I explain below at [94] to [96], where a person declared to be an SFVO is charged with a further category B offence, they must be denied bail unless there are exceptional reasons why they should not be kept in custody.

RO Act - what is an FVRO and how is it made?

The RO Act defines an FVRO as an order that contains restraints made under s 10G. Such an order can be final or interim.
The provisions of the RO Act pertaining to when an FVRO may be made are contained in pt 1B of it.
Section 10A of the RO Act states that the objects of pt 1B are:
(a)to maximise the safety of persons who have experienced, or are at risk of, family violence;
(b)to prevent, or reduce to the greatest extent possible, the incidence and consequences of family violence;
(c)to protect the wellbeing of children by preventing them from being subjected or exposed to family violence;
(d)to encourage perpetrators of family violence to accept responsibility for their behaviour and the effect it has on others;
(e)to make perpetrators of family violence accountable to the court for contraventions of court-imposed restrictions designed to prevent them from committing further family violence.
Section 5A(1) of the RO Act states that a reference in the RO Act to 'family violence' is a reference to:
(a)violence, or a threat of violence, by a person towards a family member of the person; or
(b)any other behaviour or pattern of behaviour by the person that coerces or controls the family member or causes the member to be fearful.
The word 'violence' is not separately defined in the RO Act.
Section 10D(1) and s 10D(2) of the RO Act set out circumstances in which the court may make an FVRO. They provide:
(1)A court may make an FVRO if it is satisfied that —
(a)the respondent has committed family violence against a person seeking to be protected and the respondent is likely again to commit family violence against that person in the future; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking to be protected.
(2)If the court is satisfied in accordance with subsection (1), the court must make the order unless there are special circumstances that would make the order inappropriate.
Accordingly, an FVRO may be granted where the respondent to the application has committed family violence against the applicant for the FVRO and is likely to do so again, or the applicant has reasonable grounds to apprehend that the respondent will commit family violence against the person for whom protection is sought.
Section 10G sets out the restraints that may be imposed by an FVRO. Section 10G(1) provides:
(1)In making an FVRO a court may impose such restraints on the lawful activities and behaviour of the respondent as the court considers appropriate to prevent the respondent —
(a)committing family violence against the person seeking to be protected; or
(b)if the person seeking to be protected by the order is a child, exposing a child to family violence committed by the respondent; or
(c)behaving in a manner that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them.
Section 10G(2) sets out a non-exhaustive list of the specific type of restraints that may be imposed. They include restraints that restrain the person bound from:
(1)being in certain areas;
(2)stalking or cyber-stalking the person protected;
(3)communicating or attempting to communicate with the person protected;
(4)preventing the person protected from obtaining and using personal property reasonably needed by them; and
(5)distributing or threatening to distribute intimate images of the person protected.
Further, every FVRO includes a restraint prohibiting the person bound from being in possession of a firearm or firearms authorisation and from obtaining a firearms authorisation.[34]
[34] RO Act, s 14(1).
Pursuant to s 61(1) of the RO Act, a person who is bound by an FVRO and breaches it commits a criminal offence.
An interim FVRO can be made without the respondent to the application being given an opportunity to be heard. The interim order can be made at a telephone hearing. Where the applicant for the FVRO has provided affidavit evidence in support and the court proceeds without hearing from the respondent to the application, the court must accept the affidavit evidence in support of the matters alleged in the application.[35]

Application of the RO Act to category A and category B offences

[35] RO Act, s 26 and s 28.

The RO Act provides several avenues for the grant of an FVRO where an offender has committed a category A or category B offence.

Section 63A

Section 63A of the RO Act makes specific provision for FVROs to be made by the court that convicts an adult offender of a violent personal offence. The phrase 'violent personal offence' is defined by reference to prescribed offences under the Code. Those offences include a number of offences that fall within the definition of category A and category B offences, specifically s 283, s 292, s 293, s 294, s 297, s 304(2), s 325, s 326, s 328, s 332 and s 444 (dealt with on indictment) of the Code.
Section 63A(1) and s 63A(2) are to the effect that, subject to two exceptions in s 63A(4), the court convicting an adult offender for a violent personal offence is to:
(1)make a final FVRO or VRO, as is appropriate, protecting the victim, the duration of which is the life of the offender; or
(2)where there is an existing FVRO or VRO protecting the victim, extend the duration of the order to the life of the offender.
The exceptions in s 63A(4) are that the court must not make the order if a request not to do so is made by:
(a)the victim of the offence for whose benefit the order would be made; or
(b)a parent or guardian acting on behalf of a child who is the victim of the offence for whose benefit the order would be made.

Section 63

Section 63 gives to the following courts the power to make an FVRO:
(1)the court before which a person charged with an offence is appearing;
(2)a court hearing proceedings under the Family Court Act 1997 (WA) or the Family Law Act 1975 (Cth); or
(3)a court hearing protection proceedings under the Children and Community Services Act 2004 (WA).[36]
[36] RO Act, s 63(1) - s 63(3).
Section 63(4AA) is relevantly to the effect that in the absence of exceptional circumstances, a court is taken to have grounds for making an FVRO if:
1.the person pleads guilty to, or is found guilty of, an offence against s 298, s 300, s 301, s 304(1), s 313, s 317, s 317A, s 323, s 324, s 333, s 338A, s 338B, s 338C, s 338E or s 444 (dealt with in the Magistrates Court) of the Code; and
2.the court is satisfied that a family member of the offender wants to be protected by the FVRO.

If the court dealing with the charge makes the FVRO, it is a final order.[37] Otherwise, whether the order is final or interim depends on circumstances that include whether the person bound is present when the order is made, or objects to it being made.[38]
[37] RO Act, s 63(4a).
[38] RO Act, s 63(4B).
The offences against the provisions of the Code set out in point 1 of [85] above all fall within the definition of a category A offence. Of the 28 Code offences in category A, 24 are the subject of at least one of s 63A and s 63(4AA).

Section 13A

Section 13A of the RO Act applies to proceedings commenced by an application for an FVRO and contains similar provisions to s 63A and s 63(4AA). Specifically, s 13A(2) provides that in the absence of exceptional circumstances, where the respondent to the application has been convicted of an offence under s 63(4AA)(a), the court is taken to have grounds for making an FVRO. Section 13A(3) provides that the court must make an FVRO or VRO if the respondent to the application has been convicted of a violent personal offence.

Period of an FVRO

In respect of an FVRO made other than under s 63A, there are varying provisions pertaining to the period of the FVRO.That period depends upon whether the FVRO is final or interim, and also the circumstances in which it is made. It is sufficient for present purposes to note the following.
Save for one exception not relevant to this appeal, where an interim order is served on the person bound, it remains in force until:[39]
(1)a final order comes into force;
(2)a final order hearing is concluded without a final order being made;
(3)the interim order is cancelled;
(4)or where it is a telephone interim order, three months elapses from the time the order came into force.
[39] RO Act, s 16(4).
Unless varied or cancelled, a final FVRO made at a contested hearing continues in force for the period specified in it, or if no period is specified, for two years from when the final order came into force.[40]
[40] RO Act, s 16A(2)(a).
If a final FVRO is made by reason of the person bound not contesting an interim order:[41]
1.If the interim order was a telephone order, the final FVRO continues in force for three months from when it came into place or any shorter period specified in the order.
2.If the interim order was not made by telephone, the final FVRO continues in force for the period specified in the final order. If no period is specified, it continues in force for two years from when the interim order came into force.

The Bail Act

[41] RO Act, s 16A(2)(b) - (c).

The Reform Act amended cl 3F of sch 1 pt C of the Bail Act, and inserted cl 3G.
Clause 3F(1) provides:
(1)This clause applies where an accused is a serial family violence offender in custody —
(a)awaiting an appearance in court before conviction for a family violence offence (category B); or
(b)waiting to be sentenced or otherwise dealt with for a family violence offence (category B) of which the accused has been convicted.
Clause 3F uses the same definition for category B offences and SFVO as used in the Sentencing Act.[42]
[42] Bail Act, sch 1 pt C, cl 3F(1A) and definition of serial family violence offender in s 3 of the Bail Act.
Where cl 3F applies, bail may only be granted by a judicial officer, who must refuse to grant bail unless satisfied there are exceptional reasons why the accused should not be kept in custody.[43]
[43] Bail Act, sch 1 pt C, cl 3F(2).
If bail is granted, then the judicial officer must direct that the accused be subject to electronic monitoring unless the judicial officer is satisfied there are exceptional circumstances.[44]
[44] Bail Act, sch 1 pt C, cl 3F(4A) - (4B), pt D cl 3(4A) - (4B), pt E cl 1(2).
The purpose of the electronic monitoring where cl 3F applies is 'to allow the location of the accused to be monitored'.[45]
[45] Bail Act, sch 1 pt D, cl 3(4A)(a) and pt E cl 1(6).
Clause 3G relevantly provides:
(1)This clause applies if —
(a)an accused is bound by a family violence restraining order and is in custody —
(i)awaiting an appearance in court before conviction for a family violence offence (category A); or
(ii)waiting to be sentenced or otherwise dealt with for a family violence offence (category A) of which the accused has been convicted;
and
(b)the person against whom the family violence offence (category A) was committed or is alleged to have been committed is protected by the family violence restraining order.
Clause 3G uses the same definition for category A offences and FVRO as used in the Sentencing Act.[46]
[46] Bail Act, sch 1 pt C, cl 3G(2).
Where cl 3G applies, bail may only be granted by a judicial officer. If the judicial officer grants bail, then the officer must impose an electronic monitoring condition as a condition on the grant of bail unless the judicial officer is satisfied there are exceptional circumstances.[47]
[47] Bail Act, sch 1 pt C, cl 3G(4) - (5), pt D cl 3(4A) - (4B), pt E cl 1(1)(b) - cl 1(2).
The purpose of electronic monitoring where cl 3G applies is 'to allow the location of the accused to be monitored.[48]
[48] Bail Act, sch 1 pt D cl 3(4A)(a) and pt E cl 1(6).
There is an important distinction between cl 3F and cl 3G. If the person is an SFVO, bail must not be granted unless there are exceptional reasons why they should not be kept in custody. If bail is granted, electronic monitoring is mandatory, absent exceptional circumstances. In contrast, if the person is subject to an FVRO, that does not restrict the exercise of the discretion to grant bail. But, if bail is granted, electronic monitoring is similarly mandatory, absent exceptional circumstances.

I will now turn to the extrinsic materials.

Extrinsic materials

The Director quite rightly accepts that the extrinsic materials refer to the FVRO existing at the time of the commission of the offence, and not at sentencing.[49] Given that concession, it is only necessary to refer to the Explanatory Memorandum and the Second Reading Speech. The appellant relies on other material. Irrespective of whether it may be permissible to have regard to that other material, it is unnecessary to do so given the terms of the Explanatory Memorandum and the Second Reading Speech.
[49] Director's submissions, par 13.
The introductory part of the Explanatory Memorandum states that:[50]
[50] Explanatory memorandum, page 2.
There are three cohorts captured under this Bill in respect of bail orders, certain sentencing orders, early release orders and post sentence supervision orders.

Cohort

Description of Cohort

A

The person is subject to a family violence restraining order (FVRO) and is subsequently accused or convicted of a family violence offence (category A) committed against a person protected by the FVRO.

B

The person is subject to a serial family violence offender declaration and is accused or convicted of a family violence offence (category B).

C

The person is released from prison under an early release order or a PSSO for a family violence offence (category A) and is subject to an FVRO.

Cohort A and Cohort C both refer to the scenario where a person is subject to an FVRO. However, Cohort C applies where the 'person is released from prison'. Thus, Cohort A is the only relevant cohort captured by the Sentencing Act provisions that address the scenario where a person is subject to an FVRO.
In respect of the amendments to s 84CA of the Sentencing Act, the Explanatory Memorandum states:[51]
Subclause (4) inserts proposed section 84CA(3A) which provides that section 84CA(3C) applies where the offence for which the conditional suspended imprisonment order is imposed is:
(a)a family violence offence (category A) and the offender is bound by a family violence restraining order and a person against whom the offence was committed was protected by the family violence restraining order; or
(b)a family violence offence (category B) and the offender is a serial family violence offender.
[51] Explanatory memorandum, pages 58 - 59.
Similar words are used in the Explanatory Memorandum in respect of a PSO, CBO and an ISO.[52]
[52] Explanatory memorandum, pages 47, 49 and 54.
Paragraph (a) of the passage set out at [108] above refers to the circumstance where 'a person against whom the offence was committed was protected by the' FVRO. Curiously, the Bill in place at the time did not use the word 'was'. Nor does s 84CA of the Sentencing Act.
In respect of the amendments to the Bail Act, the Explanatory Memorandum states:[53]
This clause inserts new clause 3G, which is modelled on clause 3F, into Schedule 1 Part C to address persons bound by a family violence restraining order who commit a 'family violence offence (category A)' offence against a person protected by that order.
Proposed subclause 3G(1) sets out the circumstances in which it applies.
[53] Explanatory memorandum, page 20.
In respect of the amendments to the SAA, the Explanatory Memorandum states in respect of a parole order, RRO and PSSO:[54]
For the sake of clarity, the two cohorts in respect of whom an electronic monitoring requirement must be imposed are:
(a)A prisoner serving a sentence of imprisonment for a family violence offence (category B) who is also a serial family violence offender.
(b)A prisoner serving a sentence of imprisonment for a family violence offence (category A) who is also bound by a family violence restraining order.
[54] Explanatory memorandum, pages 34, 36 and 39.
The Second Reading speech picks up the concepts of Cohorts A, B and C referred to in the Explanatory Memorandum. During the Second Reading Speech, the Attorney-General said:[55]
The Labor government commissioned an investigation into the viability of using GPS tracking devices on a wide cohort of offenders. Following the review of the result of the trial, the government has resolved to mandate the use of electronic monitoring for repeat and high-risk family violence perpetrators in Western Australia. Under this bill, when an eligible person is being considered for a relevant order by a judicial officer, a court or the Prisoners Review Board, they must be subject to a mandatory electronic monitoring condition unless exceptional circumstances exist.
Three groups or cohorts of persons are captured by this bill. This means that they will be subject to mandatory electronic monitoring unless exceptional circumstances apply. The intent of this is to ensure that repeat and high-risk family violence offenders are subject to electronic monitoring at bail, following sentence, if released into the community, and/or following release from prison. This will not apply to children.
Cohort A is those persons who are subject to a family violence restraining order and who are subsequently accused or convicted of a family violence offence, category A, committed against a person protected by the family violence restraining order. Cohort B is those persons who are subject to a serial family violence offender declaration and are subsequently accused or convicted of a family violence offence, category B. Cohort C is those persons who are released from prison under an early release order – specifically, a parole order, a re-entry release order or a post-sentence supervision order for a family violence offence, category A, and who are bound by a family violence restraining order; or a family violence offence, category B, and subject to a serial family violence offender declaration.
…
Cohorts A and B will be subject to electronic monitoring under the following orders: bail, pre-sentence orders, community-based orders, intensive supervision orders and conditional suspended release from imprisonment orders. Cohort C will be subject to electronic monitoring under the following orders: early release orders, parole and re-entry release orders, and post-sentence supervision orders.
[55] Extract from Hansard, 19 June 2024, p3211b-3213a, Family Violence Legislation Reform Bill 2024.
The language used to describe the cohorts is virtually identical to that used in the Explanatory Memorandum. For the reasons I have given concerning the Explanatory Memorandum (see [107] above), Cohort A is the only relevant cohort captured by the Sentencing Act provisions that address the scenario where a person is subject to an FVRO.
Cohort A captures a person who is subject to the FVRO before they are accused, or convicted, of the category A offence. The reference to persons who 'are subject to a family violence restraining order and who are subsequently accused or convicted of a family violence offence' makes clear that the person must be subject to the FVRO before being charged. A person subject to an FVRO at sentencing, that was made subsequent to the person being accused or convicted of the offence, would not fall within Cohort A. Thus, the extrinsic materials do not support a construction that s 84CA of the Sentencing Act is engaged by reason of an FVRO in place at sentencing.
Further, the requirements that the offence was committed against a person protected by the FVRO and that the FVRO was in place prior to the person being accused of the offence, suggests the legislative amendments envisage an FVRO in place at the time the offence is alleged to have been committed. That result also arises from the use of the phase 'was protected' in the Explanatory Memorandum (see [108] above).
Thus, as the Director accepts, the extrinsic materials speak of an FVRO protecting the victim being in place at the time of the offence, not the time of sentencing.

Consideration

I must construe s 84CA as a whole. My task is not to construe s 84CA(3A)(a) in isolation from the rest of s 84CA, or in isolation from the Sentencing Act as a whole.
It is useful to commence with an explanation of the structure of s 84CA.
Section 84CA is found in pt 12 div 1 of the Sentencing Act, which is directed to the imposition and effect of CSI. The effect of such a disposition is the offender is sentenced to a term of imprisonment of 60 months or less, that is suspended for a period of not more than two years on conditions. The offender can subsequently be ordered to serve the term of imprisonment if they go on to commit an offence that has a statutory penalty which includes imprisonment, or if they breach certain conditions of the CSI.
The conditions attaching to CSI are directed to rehabilitation and community protection.

Electronic monitoring

If the court decides to impose CSI as a sentencing disposition, then s 84CA addresses the imposition of electronic monitoring as an additional condition of the CSI. Such a condition buttresses the community protection that is to be achieved by the CSI.
There are two routes by which electronic monitoring can be imposed.
The first route is discretionary, pursuant to the exercise of the discretion provided for by s 84CA(2). Section 84CA(2) does not require that the offender has committed a category A or category B offence. Rather, the discretion provided for by s 84CA(2) applies to all offences where the court imposes a CSI.
The second route is where the criteria in s 84CA(3A) are met. If those criteria are met, then s 84CA(3C) applies, and electronic monitoring is mandatory, absent exceptional circumstances.
Section 84CA(3A) provides two separate sets of criteria. Either suffices to engage the mandatory provisions of s 84CA(3C).
The first set of criteria is provided by s 84CA(3A)(a), and requires that the offence for which the offender is being sentenced is a category A offence and the offender is bound by an FVRO that protects the victim of the offence.
The second set of criteria is provided by s 84CA(3A)(b), and requires that the offence for which the offender is being sentenced is a category B offence and the offender is an SFVO. Category B offences comprise the same Code offences that comprise category A offences, as well as two offences against the RO Act for breach of either an FVRO or a VRO.
The purpose of electronic monitoring imposed pursuant to the exercise of the discretion under s 84CA(2) is to enable the location of the offender to be monitored where they present a high risk to a person, group of persons or the community.[56] The purpose of electronic monitoring imposed under s 84CA(3C) is to enable the location of the offender to be monitored.[57]
[56] Sentencing Act, s 84CA(1)(a).
[57] Sentencing Act, s 84CA(1)(b).
Having regard to these purposes, if the court is to impose electronic monitoring in the exercise of its discretion, it must be satisfied the person presents a high risk to a person, group of persons or the community. That is not the only relevant factor, but it does seem to condition the exercise of the discretion. The requisite risk may arise from the nature of the offending itself.
In contrast, under s 84CA(3A), the risk is inherent in the respective scenarios posited by the criteria. So, the risk is inherent in the offender having committed the relevant offence and being bound by the requisite FVRO, or having committed the relevant offence and being an SFVO.
Section 84CA3(A) therefore proceeds on the premise that the risk factor arising from that combination of matters is sufficiently significant to warrant mandatory electronic monitoring in the absence of exceptional circumstances. Understood in this way, s 84CA(3A)(a) and (b) each require that there is a risk factor in addition to the circumstances of the commission of the offence itself. Section 84CA(3A) envisages that the additional factor has a material and direct, not remote, impact on the risk profile. Otherwise, the additional factor may add little to the risk profile over and above the commission of the offence itself.
The overall purpose of the provisions is to ameliorate a risk that has a certain gravity. In respect of the exercise of the discretion, the risk must be a high risk to one or more of a broad range of people. In respect of s 84CA(3A), it dictates that each scenario presented by s 84CA(3A)(a) and (b) gives rise to a gravity of risk that warrants mandatory electronic monitoring, absent exceptional circumstances.
Section 84CA(3A)(a) and s 84CA(3A)(b) are the only two 'gateways' that engage the operation of s 84CA(3C). It is important, therefore, that they operate coherently with each other. Similarly, s 84CA(3A) should operate coherently with the discretion provided by s 84CA(2).
The force of the additional risk factor envisaged by s 84CA(3A) is demonstrated by the requirement in s 84CA(3A)(b) that, in addition to committing a category B offence, the offender is an SFVO.

Significance of a person being declared an SFVO

The significance of an SFVO declaration is revealed by a combination of the conditions that enliven the discretion to make it, the factors relevant to the exercise of the discretion, the duration of the declaration and its consequences.
As I have explained at [59] to [61] above, the court's discretion to declare an offender to be an SFVO is conditional upon the offender having committed at least two category B offences that may only be tried on indictment, or three category B offences irrespective of whether they may tried on indictment or summarily. The offences must be committed on different days.
In exercising its discretion, the Sentencing Act provides that the court must have regard to the level of risk that the offender may commit another category B offence, the offender's criminal record, and the nature of the category B offences which the offender committed. That risk relates to the commission of a category B offence, as opposed to the commission of offences generally. The court may obtain an expert report on the question of risk. A declaration that an offender is an SFVO is indefinite. The offender may, however, apply to cancel it after it has been in place for at least 10 years.

The conditions that enliven the discretion to make an SFVO declaration, the factors relevant to the exercise of the discretion, and the duration of an SFVO declaration, taken together, suggest that s 84CA(3A) is concerned with a significant risk factor over and above the nature of the offence for which the court is sentencing the offender.
The risk factor that arises from a person being an SFVO arises irrespectively of whether a person is declared to be an SFVO before or after they committed the relevant offence. It will likely be more serious if the offender committed the offence after being declared an SFVO. Even so, the existence of an SFVO declaration at sentencing still bears significantly on risk even if the declaration is made after the offence is committed.
An SFVO declaration also has significant consequences. These include that, where a court sentences an SFVO to a term of imprisonment for a category B offence, the court must declare the offence to be a serious offence for the purposes of the High Risk Serious Offenders Act2020 (WA). Further, where a person declared to be an SFVO is charged with a further category B offence, they must be denied bail unless there are exceptional reasons they should not be kept in custody.
I turn now to s 84CA(3A)(a). I will first address its textual considerations, before turning to questions of purpose, coherence and context.

Section 84CA(3A)(a)

Textual considerations

The Director emphasises the use of the word 'is' in the phrase 'the offender is bound by a family violence restraining order' and also the use of the phrase 'the person against whom [the offence] was committed is protected'.[58] The Director says the latter phrase is the most instructive. The Director points out that this phrase directs attention to the point in time of sentence, not the point in time at which the offence was committed. The Director says that the ordinary meaning of the provision is clear.
[58] Sentencing Act, s 33HA(1) (PSO), s 67A(1) (CBO) and s 76A(2A) (ISO) are in the same terms.
The appellant says that s 84CA(3A)(a) does not 'expressly state nor imply nor require by necessity that the section refers to the time of sentencing'.[59] The appellant says that once the definition of category A offence is inserted into s 84CA(3A)(a), a clear indication emerges that it is directed to the point in time that the offence was committed.[60] Doing so, results in the section reading as follows:
Subsection (3C) applies if —
(a)an offence in respect of which CSI may apply is an offence where the offender and the victim are in a designated family relationship with each other at the time of the commission of the offence and the offence is an offence against The Criminal Code section 221BD, 279, 280, 281, 283, 292, 293, 294, 297, 298, 300, 301, 304, 313, 317, 317A, 323, 324, 325, 326, 328, 332, 333, 338A, 338B, 338C, 338E or 444 and —
(i)the offender is bound by a family violence restraining order; and
(ii)the person against whom the family violence offence (category A) was committed is protected by the family violence restraining order;
[59] Appellant's written submissions, par 44.
[60] Appellant's written submissions, pars 49 - 52.
The insertion of the defined terms into the provision assists in its construction,[61] in particular in this case, where there are several defined terms to be considered as part of s 84CA(3A)(a), being category A offence, designated family relationship and FVRO.
[61] See Kidd v The State of Western Australia [2014] WASC 99 [131] and the cases cited there.
The insertion of the defined terms has the result that s 84CA(3A)(a) provides that s 84CA(3C) applies where all of the following matters are satisfied:
1.The court imposes CSI in respect of an offence committed against a provision of the Code as set out in the definition of a category A offence.
2.The offender and the victim are in a designated family relationship with each other at the time of commission of the offence, including past relationships.
3.The offender is bound by an FVRO, which may be a final or interim FVRO.
4.The victim of the offence is protected by the FVRO.
Points 1 and 2 above arise from the opening words of s 84CA(3A)(a). Their focus is on the circumstances that existed at the time of the offence, including the family relationship that was in place at the time of the offence.
The first reference to an FVRO is in s 84CA(3A)(a)(i). The question that arises is whether that reference is to an FVRO in place at a later point in time, namely sentencing, or whether it is to the same point in time as the opening words, namely the commission of the offence.
My impression of the language of s 84CA(3A)(a)(i), in isolation from s 84CA(3A)(a)(ii), is that it is adopts the timeframe from the introductory words, so that is the time of the offence. I do not consider that the word 'is' suggests the focus has moved beyond that point in time, to the time of sentencing. In this respect, the focus appears to remain on the nature of the family relationship that existed at the commission of the offence, including that there was an FVRO in place.
Also, the definition of category A offence uses the present tense, 'are' in connection with the family relationship that existed at the time of the commission of the offence. Inserting that passage from the definition into s 84CA(3A), it reads, in part, 'the victim and the offender are in a designated family relationship with each other at the time of commission of the offence… and the offender is bound by a [FVRO]'. That suggests the FVRO must be in place at the time of the commission of the offence.
However, the language of s 84CA(3A)(a)(ii) suggests the section has moved forward in time beyond the introductory words of the provision and refers to an FVRO in place at sentencing. As the Director emphasises, the language in s 84CA(3A)(a)(ii) distinguishes between the offence being committed in the past by use of the word 'was', and the victim being protected by the FVRO in the present, by use of the word 'is'.
I am satisfied that the preferred grammatical meaning of the text of s 84CA(3A)(a) is that the FVRO must be in place at the time of sentencing. That grammatical meaning predominately arises from the use in s 84CA(3A)(a)(ii) of the phrase 'is protected' in contradistinction to the phrase 'was committed'.
If it were not for that contradistinction, I think the use of the word 'is' in s 84CA(3A)(a)(i) reads more naturally as adopting the timeframe introduced by the opening words, being the time the offence was committed. I therefore do not think that a construction that s 84CA(3A)(a) speaks of an FVRO in place at the time of the offence is wholly ungrammatical or unnatural, although it is awkward.
I turn now to considerations of purpose, coherence and context in respect of the competing constructions of s 84CA(3A)(a).

Purpose, coherence and context

It is useful to repeat four matters from what I have said earlier. First, s 84CA(3A)(a) must be construed as part of the Sentencing Act as a whole. Second, the overall purpose of s 84CA is to ameliorate a risk of a certain gravity. Third, s 84CA(3A)(a) and (b) each address scenarios where there is a material risk factor in addition to the circumstances that constitute the commission of the offence itself. Fourth, s 84CA(3A)(a) and (b) should be construed to work coherently with each other, and s 84CA(3A) should be construed to operate coherently with s 84CA(2).
The additional risk factor required by s 84CA(3A)(a) is that the offender is bound by an FVRO protecting the victim of the category A offence for which the court is sentencing the offender.
An FVRO may be an interim one. It may be made at an uncontested hearing where the magistrate is required to accept the matters set out in the affidavit in support. It may be for a short period of time. An FVRO can be made in circumstances where the person applying for it has reasonable grounds to apprehend that the person against whom the order is sought will commit family violence against the person seeking to be protected. Family violence also includes conduct that (presently) may not necessarily be an offence, such as coercive or controlling behaviour, or behaviour that causes the family member to be fearful.
There can be no doubt that an FVRO is serious. Amongst other matters, a breach of it is a criminal offence. However, the threshold to obtain an FVRO is significantly lower than the high risk the subject of the discretion in s 84CA(2), and is significantly lower than the circumstances necessary for the making of an SFVO declaration. Also, an FVRO does not have the same consequences under the High Risk Serious Offenders Act2020 (WA) and the Bail Act which are a result of a person being declared an SFVO; see [66] and [103] above.
An FVRO in place at the time of sentencing does not therefore necessarily give rise to the same gravity of risk as that envisaged by s 84CA(2) and s 84CA(3A)(b). It may do so, depending on the circumstances. However, s 84CA(3A)(a) is not circumstance‑dependent. It applies to all FVROs.
In addition, an FVRO in place at sentencing does not necessarily give rise to an additional risk factor to the commission of the offence itself, as s 84CA(3A)(b) does. The making of the FVRO may have been mandatory under s 13A(3) or s 63A of the RO Act, it may be a result of the deeming provisions in s 13A(2) and s 63(4AA), or it may be a result of the gravity of the offending behaviour itself. The provisions of the RO Act referred to in this paragraph were in place when the amendments were made to s 84CA of the Sentencing Act.
In summary, a construction that the existence of any FVRO at sentencing engages s 84CA(3A), irrespective of the FVRO's type or duration and irrespective of the basis upon which it is made, does not accord with the gravity of risk with which s 84CA is concerned. It also does not necessarily give rise to an additional material risk factor to that of the offending itself. Accordingly, such a construction does not accord with the purpose of s 84CA, nor does it provide for a coherent operation of s 84CA as a whole, or of s 84CA(3A) internally.
On the other hand, where a category A offence is committed against a person protected by an FVRO despite the FVRO being in place, that is something that almost invariably increases the risk of further offending. Those circumstances have the gravity of risk that s 84CA(2) and s 84CA(3A)(b) are concerned with. This is because the FVRO, designed to protect the victim, has not achieved that result, and a category A offence has been subsequently committed against the victim. In those circumstances, it is the fact that an FVRO was in place, and did not prevent the offending, that provides the requisite gravity. Also, the existence of the FVRO at the time of offending brings to bear a material additional risk factor to that of the offending itself.
Accordingly, a construction that s 84CA(3A)(a) is directed to the FVRO being in place at the time of the offence accords with the purpose of s 84CA, and provides for a coherent operation of s 84CA as a whole, and of s 84CA(3A) internally.

Duration of monitoring

Section 84CA(5) provides that electronic monitoring ceases upon the suspension period ending. There is no separate provision that permits the court to set the period of monitoring. Thus, there is no correlation between the term of the FVRO, and the period of monitoring.
Such a result is explicable where the offender presents with a risk profile that arises from the offender committing the requisite category A offence while bound by an FVRO protecting the victim. That risk profile is of such significance to justify electronic monitoring remaining in place for the entirety of the suspension period. Such a result is far less explicable where the risk profile derives from an FVRO being in place at sentencing, irrespective of its type, duration or the grounds on which it was made.
The Director's counsel submitted that a result of s 84CA(3A)(a) applying to an FVRO in place at sentencing is that it assists in monitoring whether an offender has breached the FVRO.[62] However, given s 84CA(5) does not provide for any correlation between the term of the FVRO and the period that the electronic monitoring remains in place, such a result would only be achieved by chance, not by the operation of the provisions.
[62] ts 42.
Given the potential disconnect between the term of an FVRO, and the term of electronic monitoring, a construction that s 84CA(3A) refers to an FVRO in place at the time of the offence provides for a more coherent operation of s 84CA, in contrast to a construction that s 84CA(3A) refers to an FVRO in place at sentencing.
The position in respect to a PSO, CBO and ISO is somewhat different. The Sentencing Act requires the court to separately set the term of the electronic monitoring requirement for a PSO, CBO and ISO. The electronic monitoring ceases upon the expiry of that term, or the expiry of the relevant sentencing disposition, whichever is earlier. In any event, the term of electronic monitoring that is set would not necessarily equate to the term of the FVRO. There will likely be other factors in addition to the FVRO term that inform the term of electronic monitoring, such as an assessment of the offender's prospects of rehabilitation. Thus, with a PSO, CBO and ISO, there will likely be a disconnect between the term of the FVRO and the term of electronic monitoring.

Extrinsic materials - context

As to the extrinsic materials, the Director submits that they cannot displace the plain meaning of the text. However, as I have said, I do not think that the appellant's construction is wholly ungrammatical or unnatural, although it is awkward. In addition, purpose and coherence favour the appellant's construction. That being so, the extrinsic materials are used as an aid to construction, not to displace the legal meaning that otherwise arises.
The context as revealed by the extrinsic materials favours a construction that s 84CA(3A)(a) refers to an FVRO in place at the time of commission of the offence.
Broadly speaking, the context of the provisions as revealed by the extrinsic materials is to address 'repeat and high-risk family violence perpetrators'.[63] In relation to these provisions specifically, the extrinsic materials are to the effect that the purpose of the provisions is to address a cohort of offenders that commit a category A offence while subject to an FVRO protecting the victim.
[63] Second Reading Speech, page 1.

Disposition

I have reached the following conclusions.
The preferred grammatical meaning of s 84CA(3A)(a) is that it refers to an FVRO in place at the time of sentencing. A construction that s 84CA(3A)(a) refers to an FVRO in place at the time of the commission of the offence is not wholly ungrammatical or unnatural. It is, however, awkward. Ordinarily, the legal meaning of the statutory text will correspond with the grammatical meaning. However, as Gageler and Keane JJ observed in Taylor, that is not always the case.
A construction that s 84CA(3A)(a) refers to an FVRO in place at sentencing does not accord with the purpose of s 84CA, nor does it result in a coherent operation of the provision, either as a whole, or within s 84CA(3A) itself. It is also inconsistent with the context for the provisions as revealed by the extrinsic materials.
A construction that s 84CA(3A)(a) refers to an FVRO in place at the time of the commission of the offence does accord with the purpose of s 84CA generally. It provides for a coherent operation of s 84CA as a whole, and for a coherent operation within s 84CA(3A) itself. It is also consistent with the context for the provisions as revealed by the extrinsic materials.
In my view, the combined force of the considerations pertaining to purpose and coherence, and context as is revealed by the extrinsic materials, prevail over the preferred grammatical meaning. The combined force of those considerations significantly outweighs the force of the preferred grammatical meaning.
For these reasons, in my view, the correct construction of s 84CA(3A)(a) is that it refers to an FVRO in place at the time of commission of the offence. The ground of appeal is therefore made out.
For completeness, I will address, relatively briefly, some additional matters raised by the parties.

Additional matters raised by the parties

The appellant made a number of other submissions which ultimately did not assist in resolving the question before me. They are as follows.
The appellant says that s 84CA(3B) suggests that the word 'is' used in s 84CA(3A) is not referable to the time of sentencing. Section 84CA(3B) provides:
… an offender is a serial family violence offender whether the offender was so declared by —
(a)the court referred to in subsection (3C) at the time of the offender's conviction for the family violence offence (category B); or
(b)another court.
The effect of s 84CA(3B) is that s 84CA(3A)(b) applies to any extant SFVO declaration made prior to the imposition of the sentencing disposition, even if made at the same hearing. The Explanatory Memorandum says that s 84CA(3B) was inserted to address the decision in The State of Western Australia v Williams,[64] which considered whether s 124E of the Sentencing Act was only intended to apply to prescribed offences committed on or after the commencement date of that section. The Court of Appeal held that s 124E applied to prescribed offences irrespective of when they were committed before or after its commencement. No attention was given in submissions as to how Williams might inform the purpose for which s 84CA(3B) was inserted. Absent such submissions, I am reluctant to substantively address the appellant's submission on this topic. It is unnecessary to do so, in light of my finding that the appeal succeeds.
[64] Explanatory memorandum, page 59.
The appellant submitted that the Director's construction results in an impermissible increase in the penalty imposed on the appellant, saying that the imposition of electronic monitoring increases the penalty imposed on him.
Section 4 of the Sentencing Act defines the statutory penalty as 'the penalty specified by a written law for the offence'. Section 7(3) is to the effect that where the statutory penalty for the offence is greater if the offence is committed in certain circumstances, an offender is not liable to the greater penalty unless they have been charged and convicted of committing the offence in those circumstances.[65]
[65] See Cochrane v The State of Western Australia [2021] WASCA 5 [49] - [50].
Respectfully, this submission confuses the statutory penalty with the sentencing disposition imposed. Section 84CA is directed to the type of sentencing disposition, not to the statutory penalty for the offence. A condition on, or arising from, the imposition of a statutory disposition is not part of the statutory penalty. For example, the provision in s 76(3)(a) of the Sentencing Act that suspended imprisonment is not to be imposed if the offence was committed when the offender was subject to an early release order, conditions the availability of suspended imprisonment. It does not form part of the statutory penalty. Accordingly, s 7(3) does not apply to s 84CA.
The Director's responsive submissions raised, and correctly rejected, the possible application of s 10 of the Sentencing Act. For similar reasons to those set out at [184] above, s 10 does not apply to the present circumstances. Section 10 is directed to the circumstance where a statutory penalty changes after an offence is committed, and before an offender is sentenced for it. In that circumstance, the lesser of the two penalties applies. Section 10 is directed to the statutory penalty, not to the sentencing disposition. In any event, in this case, the appellant committed the category A offences after the amendments were made to s 84CA.

The appellant submitted that the Director's interpretation leads to an unreasonable result. Care needs to be taken in assessing an assertion of unreasonableness as an aid to statutory construction.[66]
[66] See Dennis C Pearce, Statutory Interpretation in Australia (10^th ed, 2024) [2.64] and [2.65].
The appellant says that the Director's interpretation incentivises offenders to put pressure on victims to either cancel an FVRO prior to sentencing, or to not obtain or extend an FVRO prior to sentencing. The appellant also says it is unreasonable that an offender who commits an offence while subject to the FVRO can avoid the operation of s 84CA(3A)(a) if they persuade the victim to 'abandon' the FVRO.
The asserted unreasonableness is quite speculative. It assumes both that the offender is aware of the effect of the provisions, and that the offender would act improperly to avoid their consequences. It also assumes the victim would succumb to any such pressure. The asserted unreasonableness is too speculative and cannot drive, or materially affect, the construction of the provisions.

One final matter

The parties in their submissions did not address the point in time with which pt C, cl 3G of the Bail Act is concerned in respect of the offender being subject to an FVRO. The Bail Act deals with a different juncture in the criminal justice system, and the wording of cl 3G is significantly different to s 84CA. Accordingly, if cl 3G were construed to speak of an FVRO in place at the time that bail is considered, that would not alter my view as to the proper construction of s 84CA.

Conclusion

In conclusion, on its proper construction, s 84CA(3A)(a) of the Sentencing Act refers to an FVRO in place at the time of the commission of the offence.
Leave to appeal should be granted and the appeal allowed. I will hear from the parties as to the appropriate consequential orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SP
Associate to the Hon Justice Lemonis
3 NOVEMBER 2025

Cohort	Description of Cohort
A	The person is subject to a family violence restraining order (FVRO) and is subsequently accused or convicted of a family violence offence (category A) committed against a person protected by the FVRO.
B	The person is subject to a serial family violence offender declaration and is accused or convicted of a family violence offence (category B).
C	The person is released from prison under an early release order or a PSSO for a family violence offence (category A) and is subject to an FVRO.