R v Pedler (No 2) - [2019] SASCFC 117

Supreme Court of South Australia
(Full Court: Application)
R v PEDLER (No 2)
[2019] SASCFC 117
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Auxiliary Justice David)
8 October 2019
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
Application by the plaintiff for a declaration as to whether he was a high risk offender for the purposes of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act) and/or a person serving a sentence of imprisonment for the purposes of s 57 of the Sentencing Act 2017 (SA) (the Sentencing Act).
Prior to the making of this application, the plaintiff applied to the Court of Criminal Appeal for the rectification of a sentencing order of the Court, contending that the order was ambiguous because it did not clearly state whether consecutive sentences or a single sentence had been imposed and, if the former, the order in which the sentences were to be served (see R v Pedler [2019] SASCFC 116). The present application was heard before the Court handed down its judgment on the application for the rectification. The Court delivered its judgment in R v Pedler on 8 October 2019 in which it amended three of the orders.
Held by Kourakis CJ (Nicholson J and David AJ agreeing):
1. The sentence referred to in s 57(3) of the Sentencing Act includes any sentence of imprisonment being served as part of a single s 26 sentence imposed in respect of offences including a relevant offence; or any sentence of imprisonment being served concurrently with a sentence imposed in respect of a relevant offence; or a sentence in a series of consecutive sentences which series includes a sentence of imprisonment imposed in respect of a relevant offence.
2. A serious sexual offender can be subject to an application pursuant to s 7 of the High Risk Offenders Act within 12 months of the expiry of a single sentence or a series of consecutive sentences, any part of which is imposed in respect of a serious sexual offence.
3. An application could properly be brought against the plaintiff for orders pursuant to s 57 of the Sentencing Act and s 7 of the High Risk Offenders Act because he, at the time when the application for declarations was brought, remained in prison serving a term of imprisonment which was one of a series of consecutive terms of imprisonment which included a sentence imposed for a serious sexual offence.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 4, 5, 5A, 7, 10, 11, 12; Sentencing Act 2017 (SA) ss 26, 57; Acts Interpretation Act 1915 (SA) s 26, referred to.
R v Pedler [2019] SASCFC 116, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"high risk offender"; "relevant expiry date"; "sentence of imprisonment "

R v PEDLER (No 2)
[2019] SASCFC 117
Full Court: Kourakis CJ, Nicholson J and David AJ

KOURAKIS CJ: On 5 July 2019, Mr Pedler brought an application for rectification of a sentencing order of the Full Court. The Full Court had imposed consecutive sentences of imprisonment for offences which included an aggravated indecent assault. Mr Pedler contended that the order was ambiguous because it did not clearly state whether consecutive sentences or a single sentence had been imposed and, if the former, the order in which the sentences were to be served.
After the hearing of the application to rectify the sentence imposed by the Full Court, Mr Pedler brought an application for a declaration as to whether he was a high risk offender for the purposes of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act), and/or a person serving a sentence of imprisonment for the purposes of s 57 of the Sentencing Act 2017 (SA) (the Sentencing Act). It was thought that the answer to those questions may depend on the order in which the sentences were served.
The application for declarations was heard before the Full Court handed down its judgment on the application for the rectification. At the conclusion of submissions on that application, the Court announced that it would rectify the sentencing order of the Full Court to make it clear that the sentences were to be served cumulatively commencing with the sentence imposed for the offence of aggravated indecent assault. The Court also announced that it was of the view that the Attorney-General has the power to bring an application under the High Risk Offenders Act in relation to Mr Pedler and that the Court has jurisdiction to hear and determine such an application up until the relevant expiry date. The Court reserved its reasons.
On 8 October 2019, the Court delivered its judgment in R v Pedler,[1] in which it held that orders 5, 6 and 7 would be amended, out of an abundance of caution, to read as follows:
5.All sentences will be served cumulatively in the order set out in order 4 with the sentence of one year imprisonment for the aggravated indecent assault of M being served first and each other sentence commencing at the expiration of the immediately preceding sentence.
6.In relation to the total period of imprisonment of two years, one month and two weeks, a non-parole period of 15 months and two weeks is set.
7.The first sentence, that for the aggravated indecent assault of M, will be deemed to have commenced on 18 July 2017.
[1] [2019] SASCFC 116 at [31].
I now deliver my reasons on Mr Pedler’s application for declarations.
Section 57 of the Sentencing Act relevantly provides:
57—Offenders incapable of controlling, or unwilling to control, sexual instincts
(1)     In this section—
…
person to whom this section applies means—
(a)    a person convicted by the Supreme Court of a relevant offence; or
(b)a person remanded by the District Court or the Magistrates Court under subsection (2) to be dealt with by the Supreme Court under this section; or
(c)a person who is the subject of an application by the Attorney‑General under subsection (3);
relevant offence means—
(a)an offence under section 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69 or 72 of the Criminal Law Consolidation Act 1935; or
…
unwilling—a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of the person's sexual instincts.
(2)     If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and—
(a)the court is of the opinion that the defendant should be dealt with under this section; or
(b)the prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section.
(3)     If a person has been convicted of a relevant offence, the Attorney‑General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
…
(5)     The Supreme Court may, if the Attorney‑General has made an application under subsection (3) in respect of a person who is in prison serving a sentence of imprisonment, make an interim order that the person is to remain in custody pending determination by the Supreme Court as to whether to make an order under this section that the person be detained in custody until further order.
…
(7)     The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate.
(8)     The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be to protect the safety of the community (whether as individuals or in general).
(emphasis added)
There is no textual basis on which to read down the words ‘sentence of imprisonment’ in s 57(3) of the Sentencing Act to mean only a sentence imposed in respect of the sexual offence of which the person was convicted. Indeed, the use of the indefinite article both in the definition of a ‘person to whom this section applies’ and in s 57(3) of the Sentencing Act suggests the contrary.
The contextual setting of s 57 also suggests that the respondent to an application need not be serving the sentence imposed upon his or her conviction of a relevant offence.
The purpose of s 57 of the Sentencing Act is to extend the detention of a sexual offender who poses an unacceptable risk to the community before his or her release from prison. In the case of an offender serving a series of sentences, only one of which is in respect of a relevant offence, there is no good reason to require the application to be brought when he or she is serving the sentence imposed for the relevant offence. If that sentence is the last to be served there may be insufficient time for a proper evaluation of the circumstances if the application is delayed until the offender is serving it. Even though an interim order may be made, it is generally undesirable to detain respondents in prison whilst the Attorney‑General’s application is heard and determined. If the sentence imposed in respect of a relevant offence is the first in the series to be served, it may be too early at the time the application must be brought to evaluate the risk. Again, it is generally undesirable to bring proceedings only to have them adjourned for a long time and, perhaps, ultimately abandoned. Importantly, such a construction would lead to arbitrary distinctions between offenders serving a series of sentences and offenders serving a single sentence imposed pursuant to s 26 of the Sentencing Act.
I would hold that the sentence referred to in s 57(3) of the Sentencing Act includes:
·any sentence of imprisonment being served as part of a single s 26 sentence imposed in respect of offences including a relevant offence; or
·any sentence of imprisonment being served concurrently with a sentence imposed in respect of a relevant offence; or
·a sentence in a series of consecutive sentences which series includes a sentence of imprisonment imposed in respect of a relevant offence.
It is not necessary to decide whether an application can be brought against a person who was convicted of a relevant offence and was released from prison but was subsequently imprisoned for other unrelated offences.
I turn to the High Risk Offenders Act. Section 7(1) of the High Risk Offenders Act empowers the Attorney-General to bring an application to the Supreme Court for an extended supervision order to be made in respect of a person who is a high risk offender. Section 7(4) confers jurisdiction on the Court to make that order.
Section 7(2) of the High Risk Offenders Act provides that ‘[a]n application for an extended supervision order may only be made within 12 months of the relevant expiry date for the respondent’ to the application.
Relevant expiry date is defined in s 4 of the High Risk Offenders Act to mean:
(a)in relation to a high risk offender who is serving a sentence of imprisonment (whether the offender is in prison or on release on home detention or parole)—
(i) if the offender is not serving a sentence of life imprisonment—the date on which the term, or terms, of imprisonment to which the offender was sentenced expire; and
(ii) if the offender is serving a sentence of life imprisonment—the date on which the sentence of imprisonment will be taken to have been wholly satisfied; and
(b)in relation to a high risk offender who is subject to an existing extended supervision order—the date on which the extended supervision order expires;
I observe here that the phrase ‘to which the offender was sentenced’ in subparagraph (a)(i) refers back to the phrase ‘offender who is serving a sentence of imprisonment’ in subparagraph (a). There is no reason to read the former as a reference to that same phrase when it is used in the definition of high risk offender to which I shall shortly turn. I also observe that it follows from the phrase ‘term, or terms, of imprisonment’ that the definition of relevant expiry date uses the term ‘sentence of imprisonment’ both in the strict sense of the sentence passed on a conviction and in its ordinary meaning of the total period of imprisonment a prisoner is likely to serve before his or her release.
I turn to the proper construction of the definition of high risk offender.
An extended supervision order may be made by the Supreme Court if the respondent is a high risk offender and poses an appreciable risk to the safety of the community. Section 10 of the High Risk Offenders Act imposes certain mandatory conditions in an extended supervision order, such as not offending and being supervised by a community corrections officer. Section 11 allows for the Parole Board to impose conditions such as electronic monitoring and a specific place of residence. Section 12 provides that the extended supervision order takes effect on the making of the order, or on the relevant expiry date for the person subject to the order, whichever is the later, and remains in force for a period of five years, or such a lesser period as may be fixed by the Supreme Court in the order making the extended supervision order.
It is in that statutory context that s 5 of the High Risk Offenders Act must be construed. It provides:
5—Meaning of high risk offender
For the purposes of this Act, a high risk offender is—
(a)a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence; or
(b)a person referred to in paragraph (a) who is serving a sentence of imprisonment any part of which is in respect of any of the following offences:
(i) an offence under section 58 or 63A of the Criminal Law Consolidation Act 1935;
(ii) an offence under section 44, 45, 65 or 66N(2) of the Child Sex Offenders Registration Act 2006;
(iii) an offence under section 99I of the Summary Procedure Act 1921;
(iv) an offence prescribed by the regulations for the purposes of this paragraph; or
(c)a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence; or
(ca)a terror suspect who is serving a sentence of imprisonment; or
(d)a person who is subject to an extended supervision order.
Subparagraphs (a) and (c) of s 5 define a high risk offender by reference to whether they were sentenced to a period of imprisonment in respect of the offences they prescribe. It is significant that a conviction of a prescribed offence upon which a lesser penalty is imposed is not sufficient. The purpose of so defining high risk sexual and violent offenders appears to be to ensure that only persons committing those serious sexual and violent offences which have attracted sentences of imprisonment can be subjected to an extended supervision order.
Subparagraph (b) defines a high risk offender by reference to a serious sexual offender who is, at the time the application is brought, serving a sentence of imprisonment ‘any part of which is in respect of’ any of the offences specified in subparagraphs (i), (ii), (iii)[2] and (iv), which offences are not serious sexual offences, with the exception of s 58 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), as defined in s 4 of the High Risk Offenders Act. Subparagraph (b) appears to be directed towards serious sexual offenders who fall within the class defined by subparagraph (a), and who have, after their release from prison, been returned to prison for the less serious sexual offences prescribed by subparagraph (b). I observe that subparagraph (b) also uses the word ‘sentence’ in both its strict and ordinary meanings.
[2] The Summary Procedure Act 1921 (SA) was amended by the Summary Procedure (Indictable Offences) Amendment Act 2017 (SA) (in operation 5 March 2018, Gazette 12 December 2017). The amendments included a change of name to Criminal Procedure Act 1921 (SA). Section 99I remains in force.
Subparagraph (ca) on the other hand expressly defines a high risk offender as a terror suspect who is serving a sentence of imprisonment without any reference to the offences in respect of which that sentence might have been imposed. Section 5A of the High Risk Offenders Act defines a terror suspect to include a person who is merely charged with a terrorist offence or is the subject of a terrorism notification. A conviction and sentence for a terrorist offence is a sufficient but not necessary attribute for this class of high risk offenders. It follows that in the cases of a terror suspect the relevant expiry date is the expiration of any term of imprisonment he or she happens to be serving at the time of the application, irrespective of the offence in respect of which the sentence was imposed.
Finally, subparagraph (d) defines a high risk offender by reference to a person who is subject to an extended supervision order. It can be dealt with shortly. Only a person who, for whatever reason, was a high risk offender can be placed on an extended supervision order. Subparagraph (d) allows an application for such an order to be brought against a high risk offender, so that another extended supervision order may be made if the interests of the safety of the community require it. That class of high risk offenders can be put to one side for present purposes.
The ambiguity which has given rise to this application is the elliptical form of expression in subparagraphs (a) and (c) of s 5 of the High Risk Offenders Act. In contrast to subparagraphs (b) and (ca), those subparagraphs do not define the high risk offender by reference to the sentence he or she is serving. They are therefore silent on whether the sentence which sets the relevant expiry date is the sentence imposed in respect of the serious sexual offence, or serious offence of violence, respectively; is any sentence whatsoever; or is a sentence any part of which is in respect of the serious sexual or violent offence.
It is next convenient to consider the text of subparagraph (c) more closely. A high risk offender who is a serious violent offender is a person who ‘was’ sentenced to imprisonment in respect of a serious offence of violence. The subparagraph uses the simple past tense of the verb ‘sentence’ in its passive form. Textually, therefore, subparagraph (c) encompasses that class of offenders who were so sentenced without imposing a further necessary attribute for membership that, at the time when the application is brought, they are serving that sentence. A serious violent offender who was sentenced to a period of imprisonment in respect of a serious offence of violence, but who has been released from prison and is not on home detention or parole, cannot, on an exclusively textual construction, be the subject of an application under the High Risk Offenders Act, because any such application can only be brought within 12 months of a relevant expiry date. It is therefore a necessary implication to be drawn from s 7 of the High Risk Offenders Act that a serious violent offender must, at the time a s 7 application is brought, be serving a sentence of imprisonment.
I turn to subparagraph (a) of the definition. Again, as with subparagraph (c), the simple past tense is used and, textually, it is not a necessary condition of membership of this class of high risk offenders that the person is serving the sentence of imprisonment which brought him or her within subparagraph (a) at the time that the application is made.

The question raised by Mr Pedler’s application is whether it is sufficient, for the purposes of s 57 of the Sentencing Act, that the offender is serving any sentence of imprisonment or whether it is also necessary that the sentence, or part of it, was imposed in respect of a serious sexual offence. As we have seen, for s 57 of the Sentencing Act and for high risk offenders who are terror suspects, any sentence whatsoever is sufficient.
Subparagraph (b) of the definition removes some of the ambiguity caused by the failure to make explicit whether the sentence from which the relevant expiry date is derived is a sentence imposed for any offence whatsoever. If it were sufficient to authorise a s 7 application that an offender, after having once been convicted and served a sentence of imprisonment, subsequently came to be serving any sentence whatsoever, subparagraph (b) would have no work to do.
Subparagraph (b) also shows that it is not a condition of membership of the class of high risk offenders defined by subparagraph (a) that the person be serving a sentence of imprisonment in respect of a serious sexual offence. That is because subparagraph (b) operates on ‘a person referred to in paragraph (a) who is serving a sentence of imprisonment any part of which is in respect of [offences which are not serious sexual offences with the exception of the offence in s 58 of the CLCA].’ If subparagraph (a) defines that class of high risk offenders as a person serving a sentence of imprisonment in respect of a sexual offence, then part of the sentence being served by a person falling within subparagraph (b) would necessarily be a sentence imposed in respect of a serious sexual offence. A s 7 application could therefore be brought whilst he or she is serving that sentence, and, even though subparagraph (b) would affect the time in which the application could be brought, there would be little point in enacting subparagraph (b).
Returning to the definition of relevant expiry date in s 4 of the High Risk Offenders Act, as we have seen, subparagraph (i) provides that the relevant expiry date is ‘the date on which the term, or terms, of imprisonment to which the offender was sentenced expire’. Parliament can be taken to know that serious sexual offenders may be sentenced contemporaneously, or at a later date, for offences which are not serious sexual offences or serious offences of violence. The sentences imposed for those other offences and the sentence imposed in respect of the serious sexual or violent offence may be imposed consecutively or concurrently, or as part of a single sentence pursuant to s 26 of the Sentencing Act.
It may be that the express inclusion of the plural was meant to only address high risk offenders in subparagraph (b) of s 5 of the High Risk Offenders Act. However, the preferable approach is that an interpretation including the plural was not left to s 26 of the Acts Interpretation Act 1915 (SA), because Parliament intended that an application could be brought at any time whilst a high risk offender sentenced for multiple offences remained in prison.
To be a respondent to a s 7 application, a serious sexual offender, who is also a high risk offender serving a sentence of imprisonment but who does not fall within subparagraph (b) of the definition, may be serving:
(1)a sentence of imprisonment imposed in respect of offences, none of which are serious sexual offences;
(2)a sentence of imprisonment imposed in respect of a serious sexual offence and no other offence; or
(3)a sentence of imprisonment for offences, one of which is a serious sexual offence.
As I earlier observed, a sentence falling within (1) cannot be a relevant sentence for the purposes of the definition of relevant expiry date, because it would render subparagraph (b) of s 5 of the High Risk Offenders Act otiose.
It is not controversial that the relevant expiry date for a high risk offender sentenced for a single serious sexual offence, or to a single sentence pursuant to s 26 in respect of several offences, one of which includes a serious sexual offence, is the expiry of that term. However, if only a sentence of imprisonment falling within (2) could provide a relevant expiry date, the only work for the words ‘or terms’ in the definition of relevant expiry date would be in their application to that class of high risk offenders constituted by subparagraph (b) of s 5.
The construction which best fits the text and context of the High Risk Offenders Act is that a s 7 application can be brought when a serious sexual offender is serving a sentence, in the ordinary meaning of the word, described in (3) above. That is to say, a serious sexual offender can be subject to a s 7 application within 12 months of the expiry of a single sentence or a series of consecutive sentences, any part of which is imposed in respect of a serious sexual offence.
The construction I would give s 5 of the High Risk Offenders Act results from a distributive application of the definition of relevant expiry date to each of the classes of high risk offender as follows:
The relevant expiry date for a high risk offender is:
(i)for an offender within subparagraph (a) of s 5 – the expiry of the sentence of imprisonment the offender is then serving if the term, or any one of the terms, of imprisonment is imposed in respect of a serious sexual offence;
(ii)for an offender within subparagraph (b) – the expiry of the term of the sentence of imprisonment therein referred to;
(iii)for an offender within subparagraph (c) – the expiry of the sentence of imprisonment the offender is then serving if the term, or any one of the terms, of imprisonment is imposed in respect of a serious offence of violence;
(iv)for an offender within subparagraph (ca) – the expiry of the term of the sentence of imprisonment therein referred to; and
(v)for an offender within subparagraph (d) – the expiry of the extended supervision order.
The resulting construction is also to be preferred for two other reasons. First, as is the case with s 57 of the Sentencing Act, it does not distinguish between sentences imposed pursuant to s 26 of the Sentencing Act and multiple sentences imposed concurrently or consecutively. Secondly, it allows the High Risk Offenders Act to operate alongside s 57 of the Sentencing Act so that a High Risk Offenders Act application can in all cases be brought concurrently with a s 57 application. On applications concurrently brought the Court can make the orders which best balance the competing interests of public protection and individual liberty. Parliament should not be understood to have intended to deny the Court the opportunity to do so by enacting a gap between the power and jurisdiction to bring and determine applications under the High Risk Offenders Act and the Sentencing Act.
It follows from the sentencing order confirmed by this Court, and set out in para [4] above, that Mr Pedler had served the sentence of imprisonment imposed for the serious sexual offence when the application for declarations was brought before this Court. However, at that time, Mr Pedler remained in prison serving a term of imprisonment which was one of a series of consecutive terms of imprisonment which included a sentence imposed for a serious sexual offence. Therefore, an application could properly be brought against him for orders pursuant to s 57 of the Sentencing Act and s 7 of the High Risk Offenders Act.
NICHOLSON J: I agree with the judgment of the Chief Justice.
DAVID AJ: I agree with the reasons of Kourakis CJ.