T N D v The Secretary to the Department of Justice
[2011] VSCA 403
•8 December 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0158 | |
| TND | Appellant |
| v | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE | Respondent |
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JUDGES: | BUCHANAN, HARPER and HANSEN JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 November 2011 | |
DATE OF JUDGMENT: | 8 December 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 403 | |
RULING APPEALED FROM: | Secretary to the Department of Justice v [DNT] (Unreported, County Court of Victoria, Judge Rizkalla, 8 July 2010) | |
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CRIMINAL LAW – Extended supervision order – Renewal made pursuant to Serious Sex Offenders Monitoring Act 2005 (Vic) – Renewal made after the commencement of Serious Sex Offenders (Detention and Monitoring) Act 2009 (Vic) – Renewal governed by Serious Sex Offenders (Detention and Monitoring) Act 2009 (Vic) – Section 14(2) of the Interpretation of Legislation Act 1984 (Vic) considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C T Carr | Victoria Legal Aid |
| For the Respondent | Mr O P Holdenson QC | Russell Kennedy Pty Ltd |
BUCHANAN JA:
On 18 March 2005 the appellant was convicted on a count of attempting to induce a child to take part in an act of prostitution and was sentenced to be imprisoned for a term of two years on that count. A further three months on a count of common assault was cumulated on the sentence of two years’ imprisonment.
The appellant is now 58 years’ old. His offending consisted in holding the collar of an 11 year old girl on her way to school and offering her $100 in exchange for sex.
On 16 June 2006 Judge Sexton made an order pursuant to the provisions of Part 2 of the Serious Sex Offenders Monitoring Act 2005 (‘the 2005 Act’) that the appellant be the subject of extended supervision. The order, inter alia, forbade the appellant committing a relevant offence and required him to report to the respondent and obey all lawful instructions and directions of the respondent. The order was made for a period of three years.
On 16 March 2009 the respondent made an application under s 24 of the 2005 Act for an order that the extended supervision order made by Judge Sexton be renewed. On 9 June 2009 Judge Hannan made an interim order extending the original order. On 25 May 2010 Judge Rizkalla renewed the extended supervision order for a period of three years.
The appellant has appealed against the order made by Judge Rizkalla on a number of grounds. It is necessary to consider only the first of the grounds, which is:
The learned trial judge erred in determining the issues contested and making an order pursuant to the Serious Sex Offender Monitoring Act 2005, though no jurisdiction to do so existed at the time of the application being heard.
On 1 January 2010, after the respondent’s application to renew the extended supervision order had been made but before the hearing of that application had commenced, the Serious Sex Offenders (Detention and Monitoring) Act 2009 (‘the 2009 Act’) came into operation. Section 200 of the 2009 Act repealed the 2005 Act. Both Acts provided for ongoing supervision of certain offenders after their sentences of imprisonment expired. The orders are called ‘extended supervision orders’ in the 2005 Act and ‘supervision orders’ in the 2009 Act. The 2009 Act provides for detention orders for the confinement in prison of certain sex offenders and alters the criteria upon which orders affecting serious sex offenders are made. The test which the respondent must satisfy under the 2009 Act appears less stringent than the test in the 2005 Act.
Although the appellant contended that the provisions of the 2009 Act applied to the application for renewal, Judge Rizkalla accepted the submission of the respondent’s counsel that the 2005 Act governed the application.
Section 199 of the 2009 Act provided that the transitional provisions in Schedule 2 were to have effect. Clause 5 of Schedule 2 provided:
Division 5 of Part 2 of the new Act applies to the renewal of an extended supervision order as if it were a supervision order and the court may make a renewed supervision order under that Division in respect of that order.
Counsel for the appellant relied upon this provision to submit that orders under the 2005 Act were to be renewed under the 2009 Act. He also invoked cl 7 of the Schedule, which provided:
Anything done in respect of an application for an extended supervision order or interim extended supervision order in respect of an offender under the old Act that was made but not concluded before the commencement day, is taken to have been done (as far as applicable) for the purposes of the first application for a supervision order in respect of the offender under the new Act.
It was submitted that any application for an extended supervision order that was made but not concluded before the 2009 Act came into force was to be treated as an application under the 2009 Act. On the date upon which the 2009 Act came into operation, the application made on 16 March 2009 for the renewal of the extended supervision order had not been determined. Accordingly, so it was said, that application was to be treated as if it were an application under the 2009 Act.
For her part, the respondent invoked clause 2 of Schedule 2. The clause provided that the Schedule did not affect or take away from the Interpretation of Legislation Act 1984. Section 14(2) of that Act provided, so far as is presently relevant:
(2) Where an Act or a provision of an Act—
(a) is repealed …
the repeal … shall not, unless the contrary intention expressly appears—
…
(d)affect the previous operation of that Act or provision or anything duly done or suffered under that Act or provision;
(e)affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;
…
(g) affect any … legal proceeding or remedy in respect of any such right …
and any such … legal proceeding … may be instituted, continued or enforced … as if that Act or provision had not been repealed …
Counsel for the respondent submitted that the right to have the application for renewal heard under the 2005 Act was a right that had accrued before the 2005 Act was repealed. So much appears to be common ground. Both parties accepted that the question was determined by the decision of the High Court in Esber v The Commonwealth.[1] In that case it was held that a statutory right to have an administrative decision reconsidered and determined by a tribunal was a right protected by a provision in the Acts Interpretation Act of the Commonwealth comparable to s 14(2) of the Interpretation of Legislation Act. Mason CJ, Deane, Toohey and Gaudron JJ said:
Once the appellant lodged an application to the Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely ‘a power to take advantage of an enactment’. Nor was it a mere matter of procedure; it was a substantive right.[2]
[1](1992) 174 CLR 430.
[2]Ibid, 440.
The question becomes whether the provisions of Schedule 2 to the 2009 Act exhibit a contrary intention which ousts the operation of s 14(2) of the Interpretation of Legislation Act.
In my opinion, the provisions of Schedule 2 are incompatible with the application of s 14(2) of the Interpretation of Legislation Act to the renewal of an extended supervision order. The scheme of the Schedule appears to me to require that the provisions of the 2005 Act regulate existing extended supervision orders. In my opinion, the Schedule also requires that it is the 2009 Act which applies to the making of new supervision orders, as well as to the renewal of existing extended supervision orders.
Clause 3 of the Schedule provides:
Despite the repeal of the old Act and subject to this Schedule, the old Act and any regulations under the old Act continue to apply in relation to an extended supervision order (including a suspended order) or interim extended supervision order existing immediately before the commencement day until –
(a) the order is revoked; or
(b)a decision to make the order is quashed or set aside under s 39(1)(b) of the old Act; or
(c)a supervision order or detention order is made in respect of the offender under the new Act.
The clause continues the operation of the 2005 Act for an order ‘existing immediately before the commencement day’. The clause does not appear to contemplate further orders being made under the 2005 Act. The clause is consistent with cl 7, which provides that applications for extended supervision orders that have been made but not concluded are to be treated as applications for supervision orders under the 2009 Act.
The other side of the coin is supplied by cl 5 of the Schedule, which provides that extended supervision orders made under the 2005 Act are to be renewed under the 2009 Act. Counsel for the respondent submitted that cl 5 should be understood as being limited in its operation to an application for the renewal of an extended supervision order, which is made on or after the commencement of the 2009 Act. In my view, such a construction runs counter to the tenor of cl 7.
Counsel for the respondent also relied upon the decision of Bongiorno JA in Secretary to the Department of Justice v Fletcher.[3] In that case his Honour held that the provisions of the 2005 Act regulated an application to review an extended supervision order where leave had been granted to make the application prior to the commencement of the 2009 Act. His Honour said:
Mr Fletcher was given leave pursuant to s 21(3) of the old Act to have his ESO reviewed by this Court on 23 June 2008. He has acquired a right to commence a legal proceeding, or to take a step in an existing legal proceeding, for which leave was required. He commenced that proceeding or took that step on 24 June 2008 when he brought the application for review. At the time the old Act was repealed and he had acquired the right which he was in the process of exercising by pursuing a legal proceeding which had not been completed. Such a right is a right within the meaning of s 14(2)(e) of the Interpretation of Legislation Act and this review is a legal proceeding in respect of that right.[4]
[3][2010] VSC 170.
[4]Ibid, [35].
For the reasons I have stated, I consider that an application to renew an extended supervision order stands in a different position to a review in respect of which the leave of the Court has been granted.
Finally, counsel for the respondent submitted that cl 7 applied only to the making of extended supervision orders, not their renewal. In my view, however, cl 5 equates making an order with renewing an order. Clause 5 is consistent with s 24 of the 2005 Act, which treated renewals as a subset of extended supervision orders. Section 24(3) applied to renewals the provisions regulating the making of extended supervision orders.
For the foregoing reasons, I am of the opinion that the order made by Judge Rizkalla should be revoked.[5] Counsel for the appellant contended that this Court should not remit the matter to the County Court. He submitted that in the County Court evidence was given that despite the exceptional impositions on the appellant’s freedom since he completed his sentence, the respondent had failed to act
to reduce any ongoing risk that the appellant posed. The respondent’s inaction was explained by Judge Rizkalla. Her Honour said:
[I]t is unfortunate that to a large degree the slowness of [the appellant] in changing and rehabilitating stems from the complexity of the limitations placed upon him by his own cognitive function, his intellectual disability and/or acquired brain injury. It has meant that the more mainstream sex offence courses and cognitive therapy techniques are not appropriate in his rehabilitation … .
[5]See s 39(1)(b) of the 2005 Act.
Further, if the matter is remitted, the County Court will have the advantage, denied to this Court, of up to date evidence. In my opinion, the appropriate order is one remitting the matter to the County Court.
HARPER JA:
I agree with Buchanan JA.
HANSEN JA:
I also agree with Buchanan JA.
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