Tannous v State of New South Wales

[2020] NSWCA 261

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Tannous v State of New South Wales [2020] NSWCA 261

Hearing dates:

3 September 2020

Decision date:

21 October 2020

Before:

Basten JA at [1];
McCallum JA at [72];
Simpson AJA at [73]

Decision:

(1)   Grant the applicant leave to appeal from the extended supervision order made in the Common Law Division on 23 March 2020.

(2)   Dismiss the appeal.

Catchwords:

CRIME – extended supervision order – validity –unacceptable risk of committing another serious offence – whether unacceptable risk must subsist throughout the duration of the order – Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 10, 11

STATUTORY CONSTRUCTION – objects clause –statutory statement of objects as aid to construction

STATUTORY INTERPRETATION – clear statement rule – right to liberty – not available to subvert power to make extended supervision order – Crimes (High Risk Offenders) Act 2006 (NSW), s 5B

WORDS and PHRASES – “unacceptable risk”; “high risk offender”; “high degree of probability” – Crimes (High Risk Offenders) Act 2006 (NSW)

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B, 5C, 5D, 5E, 5G, 9, 10, 13, 22, 24AB, 24AC, 24AF; Pt 1A, Pt 4A

Crimes (High Risk Offenders) Amendment Act 2017 (NSW), Sch 1

Environmental Planning and Assessment Act 1979 (NSW), ss 5, 37, 39

Interpretation Act 1987 (NSW), ss 33, 35

Terrorism (High Risk Offenders) Act 2017 (NSW), s 20

Serious Sex Offenders Monitoring Act 2005 (Vic), ss 11, 12, 13, 14

Cases Cited:

ARM v Secretary to the Department of Justice (2008) 29 VR 472; [2008] VSCA 266

Bugmy v State of New South Wales [2017] NSWCA 25

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31

New South Wales v WXN1 [2020] NSWSC 993

S v Australian Crime Commission (2005) 144 FCR 431; [2005] FCA 1310

State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280

State of New South Wales v Naaman (No 2) [2018] NSWCA 328

Texts Cited:

DC Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019)

Category:

Principal judgment

Parties:

Steven James Tannous (Applicant)
State of New South Wales (Respondent)

Representation:

Counsel:
Mr R J Wilson SC / Mr R El-Choufani (Applicant)
Mr D Kell SC / Ms Z Heger (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2020/141612

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 292

Date of Decision:

23 March 2020

Before:

Rothman J

File Number(s):

2019/350353

Judgment

1. BASTEN JA: On 23 March 2020 Rothman J imposed an extended supervision order on the applicant, Steven James Tannous, for a period of three years. The applicant did not resist such an order before the primary judge, nor does he challenge the existence of an order in this Court. Rather, he seeks leave to appeal (leave being required because the appeal was lodged out of time) on the basis that the order should have been for a two year period, rather than for three years.

2. The order was made under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The right of appeal conferred by s 22 of the Act may be exercised as of right within 28 days after the order is made: s 22(3). Otherwise leave is required. The State noted that the appeal was lodged some three weeks out of time: more relevantly, the content of the primary ground was not identified until written submissions were filed four months after the order was made. Nevertheless, the State accepts that there is an issue as to the operation of the Act in a particular respect which is sought to be raised on the appeal, and does not oppose a grant of leave. Although there were good grounds to refuse leave with respect to ground 1, identified below, in the absence of opposition the applicant should have leave to appeal.

3. The applicant has a sorry history of sexual offences involving elements of physical violence. He is now 41 years old, his first serious offending having occurred in 1999, when he was 20 years of age. He committed serious sexual offences (sexual intercourse with a child between 10 and 14 years) in July 2012. He received an overall sentence of 7 years 6 months, with a non-parole period of 4 years 6 months, which expired on 27 January 2017. He was released on parole on 8 March 2018. The State’s application for supervision orders was made on 7 November 2019, whilst he was subject to supervision on parole. Interim supervision orders were in place between 19 December 2019 and the final order made by Rothman J on 23 March 2020.

Issues

4. Submissions focused on the terms of s 5B of the Act which reads as follows:

5B   Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:

(a)   the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b)   the person is a supervised offender (within the meaning of section 5I), and

(c)   an application for the order is made in accordance with section 5I, and

(d)   the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

5. The primary judge noted that there was no resistance on the part of the applicant to the making of an order on the basis that each of the conditions set out in pars (a)-(d) of s 5B was satisfied. Nor was it in doubt that the power, once engaged, permitted the making of an order which might extend for a period not exceeding 5 years, as permitted under s 10(1A)(a) of the Act.

6. Ground 1 alleged that the primary judge erred in failing to find that the state of satisfaction required by s 5B(d), as to “unacceptable risk”, imposed a limitation on the period for which the order could extend. Thus, the applicant submitted that the duration of the order could not extend beyond the period during which the Court was satisfied to a high degree of probability that the applicant would continue to pose an unacceptable risk of committing another serious offence.

7. Ground 2 turned on the effect of the evidence given by the court-appointed psychiatrist, Dr Andrew Ellis, and the court-appointed psychologist, Mr Patrick Sheehan as to the appropriate duration of an extended supervision order. In written reports, Dr Ellis had favoured a three year period, Mr Sheehan a two year period. The applicant asserted that Dr Ellis had qualified his view in oral evidence, accepting two years as sufficient. Ground 2 alleged that the primary judge had overlooked this concession in adopting a period of three years, ostensibly on the basis of Dr Ellis’ opinion.

8. Ground 3 asserted that it was not “open” to the judge to make an order with a three year duration. It was conceded that this conclusion depended on acceptance of ground 1, the allegation being that the judge could not be satisfied to a high degree of probability that the offender would pose an unacceptable risk after two further years of supervision. Because ground 1 should not be accepted it will not be necessary to address this ground.

9. As ground 2 should also be dismissed, the appeal must be dismissed.

Ground 1 – operation of s 5B

10. Ground 1 was expressed in very general terms in the notice of appeal:

“1   The judge erred by failing to apply the correct test for determining the length of the extended supervision order.”

The content of the ground was not identified until written submissions were filed on 24 July 2020. The issue was identified in the following terms: [1]

“Ground 1 involves the question of whether, on its proper construction, section 5B of [the Act] requires a court to fix a period of extended supervision for no longer than the period the Supreme Court judge is satisfied, to a high degree of probability, that the offender will continue to pose an unacceptable risk of committing another serious offence if not kept under supervision under the order.”

1. Applicant/appellant’s written submissions, 24 July 2020, par 3.

11. It was common ground that the primary judge did not make a finding as to when the risk would no longer be “unacceptable”. He did not have to, because the construction of the statute now proposed was not proposed below.

12. There might have been a large question as to whether the applicant should have been permitted to raise this issue. It had not been presented in these terms to the primary judge; the evidence of the experts did not in terms address such a proposition and there must be an issue as to the form of relief which should now be given if the proposed construction be correct. It raises an issue as to the scope of the appeal provided by s 22 of the Act and as to whether the principle in Coulton v Holcombe,[2] that, “had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding,” should prevent it being agitated on appeal.

    2. (1986) 162 CLR 1 at 7-8; [1986] HCA 33.

13. The justification for the court considering the issue appears to have been that a limitation on power imposed by s 5B(d) of the Act was “jurisdictional”. Whether that is so or not, there being no opposition from the State, which has addressed the legal issue, it is a matter which the Court should determine. [3]

    3. A similar difficulty, with a similar result, arose in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [43] (Beazley P).

Scheme of the Act

14. Legislation dealing with violent offenders, serious sexual offenders and terrorist offenders has been enacted and amended over more than a decade. Provisions in the form of s 5B are commonplace in such legislation. They have consistently been understood as identifying the conditions of engagement of statutory powers to make continuing detention orders or extended supervision orders. They may be colloquially referred to as “gateway” provisions. [4] This is so despite the fact that s 5B commences with the words, “[t]he Supreme Court may make an order … if”. Although this can be the language of conferral of a power, read in context these words are merely descriptive. The purpose of the provision is to condition the engagement of the power so identified. [5] Section 9(1) confers power to make particular orders in determining an application for an extended supervision order, the exercise being regulated by the following provisions in s 9 and s 10.

    4. State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at [24] (Beazley P, Macfarlan and Leeming JJA); see also Lynn at [47] (Beazley P, Gleeson JA agreeing); State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [20] (Basten, Macfarlan and Leeming JJA).

    5. Lynn at [47]-[48] (Beazley P).

15. Nor is this conclusion undermined by the fact that s 5B(d) requires an assessment of risk on the basis that the offender is “not kept under supervision under the order.” The effect of this language is to remove any requirement to consider, at the point of engagement of the power, whether the unacceptable risk would be diminished by the making of an order. As explained in Naaman (No 2):

“[29]   …

(6) Sixthly, if so satisfied [as to the risk being unacceptable], then the discretion under s 20 is engaged. For example, if the Court were satisfied to a high degree of probability that an offender posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision, but were also satisfied that there would be substantially the same risk, or indeed a greater risk, if the offender were kept under supervision, that might ground an exercise of discretion to decline to make an order.”

Importantly, the reference to “the order” in s 5B(d) is not a reference to any particular order, with or without particular conditions, but generically to an order requiring supervision. Because the effect of such an order is excluded from consideration, there is no need to identify the terms of any such order.

16. Naaman (No 2) was concerned with s 20(d) of the Terrorism (High Risk Offenders) Act 2017 (NSW). The description of the effect of s 20(d) (which is functionally identical to s 5B(d)), contains no suggestion that par (d) controls the duration or conditions of an order. It is true that such a question did not arise in that case, the appeal being one brought by the State against the refusal of a judge to make such an order. Nevertheless, recognition that a provision such as s 5B constitutes a set of conditions of engagement of the power entails a degree of implausibility in a submission that the section is intended to regulate the terms or conditions imposed if an order is to be made.

17. Nor does the language of par (d) provide support for the submission. The condition is expressed in the present tense in two respects. The first is uncontroversial: it requires that the court “is satisfied”, that is, at the time it determines the application, as to the existence of the condition. Secondly, the matter as to which the court is to be satisfied, is that “the offender poses an unacceptable risk…”. Because the purpose of the provision is to identify a condition of exercise of the power, albeit forward-looking, it is not sensible to read the present tense (“poses”) as meaning “poses now and will continue to pose during the duration of any order”. That would be to import into the condition of making an order an obligation to set the limits of the duration of the order (if made). Both purpose and syntax are inconsistent with such a conclusion.

18. As the State contended, s 9(2) provides that “[i]n determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.” Section 9(3) identifies 12 “matters” which the court must have regard to; the list is not exclusive and the court must also have regard to any other matters which it considers relevant. Those matters fall into two broad categories: first, there are reports and sources of information which may be provided in evidence, including, for example, the criminal history of the offender. The other category identifies evaluative judgments which must be made. For example the court must consider “options” which may be available either in custody or in the community, that might reduce the likelihood of reoffending and an assessment of the likelihood that the offender will comply with the obligations of an order: pars (e1) and (e2). Further, the term of an order is addressed in s 10, in terms which impose the limit of five years noted above, but also recognise that a period may be specified in the order: s 10(1A)(a). Other aspects of s 10 are mechanical; they give no indication as to matters to be considered by the court in specifying the period for which the order is to operate.

19. This broad structure suggests that s 5B is purely a “gateway” provision and says nothing about the conditions or period of any order which may be made in the court’s discretion. The discretionary power is conferred by s 9(1) and the matters to be taken into account are specified in s 9(2) and (3). They are not specified in s 5B.

20. This construction of s 5B(d) cannot be said to leave a gap in the legislative scheme by permitting an order to continue in force beyond the appropriate period. The relevant protection is provided by mandating regular reviews, with a power, at an appropriate time, for the court to reconsider the ongoing operation of the order. Thus, s 13 provides:

13   Supervision order may be varied or revoked

(1)   The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State or the offender.

(1A)   The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part.

(1B)   Without limiting the grounds for revoking an extended supervision order or interim supervision order, the Supreme Court may revoke an extended supervision order or interim supervision order if satisfied that circumstances have changed sufficiently to render the order unnecessary.

(2)   For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months.

(3)   The report must indicate whether the Commissioner considers the continuation of the extended supervision order to be necessary and appropriate.

The requirement to provide reports at intervals of not more than 12 months for the purpose of determining whether circumstances have changed sufficiently to render the order “unnecessary” indicates that the ongoing need for the order will be dealt with pursuant to s 13. It is not necessary for present purposes to determine the relationship between an order being “unnecessary” and compliance with the condition set out in s 5B(d).

Applicant’s case

21. In support of his submission that a condition as to duration was to be implied into s 5B(d), the applicant relied upon three matters, namely (i) the application of the objects set out in s 3(1) of the Act; (ii) reading down in accordance with the principle of legality (clear statement principle), and (iii) authority supporting the proposed construction. These matters will be addressed in turn.

Reliance on objects clause

22. Section 3 of the Act provides as follows:

3   Objects of Act

(1)   The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

(2)   Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.

23. The submission relied upon s 3(1), on which it is convenient to focus. The language is now anomalous: it refers to “high risk sex offenders” and “high risk violent offenders”. Each of these used to be, but no longer is, a defined term, used in operative provisions of the Act. However, the definitions were removed, and s 5B and s 5C inserted, in March 2017. [6]

    6. Crimes (High Risk Offenders) Amendment Act 2017 (NSW), Sch 1, [4] and [14].

24. The applicant’s submission sought to rely upon the anomaly, in order to link the objects clause with s 5B. He submitted that the only reference to “risk” in any relevant provisions of the Act is now to be found in s 5B(d). [7] Reading s 3(1) and s 5B(d) together, the primary object of the Act is to provide for extended supervision of a person who satisfies the condition in s 5B(d). Once the person falls outside that provision, the Act no longer had as a primary object providing for his or her extended supervision. Therefore, it was submitted, s 5B(d) must require the court to limit the operation of any order to the period during which the person will continue to satisfy that condition.

    7. For continuing detention orders, see s 5C(d).

25. It is convenient, and perhaps appropriate to ignore the fact that the objects clause no longer uses language referable to a defined term. However, it was not only the objects clause which was left unamended; various ancillary provisions dealing with administrative matters were also untouched, [8] as were some headings, including the heading to Pt 1A in which s 5B appears, which still reads, “Supervision and detention of high risk offenders”.

    8. See, eg, Pt 4A – High Risk Offenders Assessment Committee and inter-agency co-operation, s 24AB establishing a “High Risk Offenders Assessment Committee”, and s 24AC and s 24AF identifying “high risk offender functions”; see also short and long titles of the Act.

23. Nevertheless, the use made of s 3(1) is misconceived. An objects clause cannot be used to impose on an operative provision constraints which do not appear in the provision itself. Section 5B is the provision being construed; it is to be construed in context, which will include the heading to the Part, [9] and s 3(1). It is also necessary to prefer a construction that would promote the purpose or object underlying the Act, to one which would not. [10]

    9. Interpretation Act 1987 (NSW), s 35(1)(a).

    10. Interpretation Act, s 33.

24. Several points flow from these principles. First, while s 3(1) forms an element of the context in which s 5B(d) is to be construed, it is only part of that context. It is true that it identifies a “primary purpose” of the legislation, but the whole purpose can be ascertained only by reference to the whole of the legislation.

25. Secondly, if it is necessary to refer to s 5B(d) to give meaning to the objects clause, it is circular then to rely upon the objects clause as a means of limiting the operation of s 5B(d).

26. Thirdly, as with the use of preambles, which have largely been replaced by statements of objects or purposes, [11] any attempt to encapsulate in a sentence the operation of the whole statute must be viewed with caution.

    11. DC Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019), at [1.42].

27. Fourthly, in accordance with s 33 of the Interpretation Act, identification of a statutory purpose provides guidance as to the construction of substantive provisions of the Act; it does not form a basis to substitute the purpose for the language of a substantive provision.

28. Finally, if the purpose is to be found in s 3(1), it is to be found in the whole of s 3(1). That purpose is not simply to provide for the extended supervision of high risk offenders, but extended supervision is imposed “to ensure the safety and protection of the community.” Read as a whole, s 3(1) identifies the focus of the Act, but not by way of a limiting consideration.

29. None of these principles is controversial. Thus, in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd,[12] this Court considered in some detail the use which could be made of the objects identified in s 5 of the Environmental Planning and Assessment Act 1979 (NSW) in relation to the validity of a state environmental planning policy promulgated under s 37 and s 39 of the Act. The objects, requiring public involvement in environmental planning, were said to be inconsistent with the approach adopted by the Minister in recommending the particular planning policy under scrutiny. As noted by Handley JA, “[t]he objects in s 5 of the Act are not incorporated in s 39 and do not condition the power it confers.” [13] Sheller JA stated: [14]

“These stated objects explain [identified provisions]. But they cannot, in my opinion, be used to read down the provisions found in ss 37 and 39(2) which expressly provide for a different regime of consultation and for publicising and seeking and considering submissions from the public about a draft State environmental planning policy.… The objects referred to may explain ambiguity, if it exists, but do not permit the Court to override the language of the Act.”

12. (1996) 91 LGERA 31.

13. Rosemount at p 38.

14. Rosemount at pp 46-47

33. Cole JA stated that: [15]

“The content of a scheme may be required to conform with the objects of the Act, and the procedural steps, in so far as they have an object or policy content, may be controlled by the objects of the Act in the sense that if the steps are taken for a purpose foreign to the objects of the Act, the procedural step in truth may not be one within the statutory power. However, subject to those matters the issue descends, in my view, to the narrow issue of Wednesbury unreasonableness.”

Cole JA further stated: [16]

“The exercise of the statutory power to publicise must be considered, but there remains a discretion whether it be exercised. Further, whilst regard may be had to an objects clause to resolve uncertainty or ambiguity, the objects clause does not control clear statutory language, [17] or command a particular outcome of exercise of discretionary power.”

15. Rosemount at p 75.

16. Rosemount at p 78.

17. See D C Pearce and R S Geddes, Statutory Interpretation in Australia, 4th ed (1996) section 4.34 (footnote in original text: see now, 9th ed, [4.63]).

34. Although it may be said that Rosemount involved an Act which contained a number of objects which were apt to conflict in particular situations, the last proposition extracted from the reasoning of Cole JA was expressly relied upon by Beazley P in Lynn in relation to the current legislation (albeit in an earlier form) stating:

“[54]   The objects of the legislation may be relevant to the meaning to be given to provisions of the Act. However, the object provisions of an Act cannot control clear statutory language: [Rosemount] at 78.”

35. In S v Australian Crime Commission,[18] Mansfield J addressed an argument as to the validity of a provision which introduced the need for a “federal aspect” in order to limit the circumstances in which a Commonwealth authority could investigate a State offence. In rejecting a submission based on the lack of a constitutional foundation for the provision, Mansfield J stated:

“[22]   In my judgment, the contention seeks to elevate the object clause of the section to a status it does not enjoy. An object clause in legislation, together with other intrinsic indicia to its proper construction, is relevant to the proper construction of the legislation. [19] Dowsett J in Re Yanner (2000) 100 FCR 551 pointed out, however, that such a clause cannot cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear.”

18. (2005) 144 FCR 431; [2005] FCA 1310.

19. See eg Tickner v Bropho (1993) 40 FCR 183, at 191-192 (Black CJ), 208-209 (Lockhart J), 215 (French J) (footnote in original text).

36. None of the terminology, syntax or particular purpose of s 5B(d) is unclear or ambiguous. The broad language of s 3(1) neither assists nor hinders in identifying the operation of s 5B(d). It cannot be invoked to impose some implied limitation in the manner contended for by the applicant.

Clear statement principle

37. The applicant’s submission with respect to the clear statement principle (the principle of legality) was founded upon the individual right to liberty. The applicant submitted in writing: [20]

“Consistently with the principle of legality and the general right to liberty, any order for extended supervision of an offender is only justified under s 5B while the offender continues to pose an unacceptable risk of committing another serious offence if not kept under supervision under the order.”

20. Applicant’s written submissions, 24 July 2020, par 19.

38. As the applicant correctly noted, this Court accepted in State of New South Wales v Donovan,[21] that “an offender’s right to personal liberty after completing the term of imprisonment for which he or she has been sentenced was accurately described as ‘the most elementary and important of all common law rights’, which ‘cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes’: Williams v The Queen (1986) 161 CLR 278 at 292, a passage cited by the primary judge.”

    21. (2015) 90 NSWLR 389; [2015] NSWCA 280, at [58].

39. The discussion of the clear statement principle (principle of legality) arose in considering the operation of s 5G(1) of the Act as then in force (it has since been amended) which conferred power to make a continuing detention order if the court were satisfied that “adequate supervision will not be provided by an extended supervision order.”

40. Contrary to the applicant’s submissions, the assessment of “unacceptable risk” did not involve the Court having regard to the applicant’s interests. They were not to be disregarded, but they were properly taken into account, not in relation to the conditions of engagement, but rather in considering the discretion to make an order once the power was engaged, and on what conditions.

41. Neither the right nor its importance is contestable. However, the right is not absolute and may lawfully be infringed without statutory authority; there are general law powers of arrest and powers of imprisonment for common law offences. The submission is, rather, that in the case of a statute, any infringement of the right of liberty of the individual must be expressed in clear language, so as to not to extend beyond that which is expressly stated or clearly implied. It therefore operates to ensure that s 5B(d) does not impermissibly infringe the right to liberty.

42. The applicant’s written submissions contended that the Act -

“… attempts to strike a balance between the right of an individual to liberty and a need to protect the community from an unacceptable risk of the commission of serious offences. All of the provisions of the Act, including those which permit revocation, extension and other variations to ESOs, are consistent with the legislature’s intention to restrict the liberty of a person, for protective and not punitive purposes, only for so long as the person poses an unacceptable risk of committing another serious offence.” [22]

22. Applicant’s written submissions, par 38.

43. That statement was not inconsistent with what this Court had said in Lynn by Beazley P:

“[43] The question raised on the appeal was whether s 5E(2) requires that a person’s right to liberty be taken into account in the assessment of whether the person poses an unacceptable risk within the meaning of the section. That is a different question from that which was raised before the primary judge. However, the respondent did not object to this question being argued on the appeal and it is appropriate to deal with it.

[44] For the reasons that follow, I am of the opinion that the right of an offender to his or her personal liberty at the expiry of the sentence of imprisonment being served is not a relevant consideration in the determination of whether a person poses an unacceptable risk for the purposes of s 5E(2). Nor do I consider that the appellant’s analysis of the decision-making process in determining whether to make an order under the Act is correct. It is convenient to deal with this latter point before dealing with the meaning of ‘unacceptable risk’.”

44. Similarly, Gleeson JA stated:

“[148] It can be readily accepted that orders for the supervision or detention of a high risk violent offender involve a significant restriction on the personal liberty of the subject outside the ordinary principles of the common law. The basis for that interference with liberty in specific cases is to be found in Parliament’s determination that such orders may be made for the protection of the public. The precondition for the making of such orders is that the offender is a ‘high risk violent offender’: s 5E(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). It would subvert the language of the statute if the interests of the offender in liberty and privacy were to be taken into account in the assessment of the threshold of unacceptable risk in s 5E(2) of the Act. There is no ‘balancing’ exercise involved in the court’s assessment of the threshold of ‘unacceptable risk’.

[149] The interests of the offender in liberty and privacy are to be taken into account in the exercise of the court’s discretionary power under s 9 of the Act to either make an extended supervision order, or dismiss the application for such an order. Although not explicit in the Act, conceptually the exercise of the discretionary power can be viewed, as Basten JA has suggested, as involving an intermediate stage of considering the appropriate conditions which might be imposed as part of an extended supervision order, before considering whether such an order is otherwise appropriate. I agree with Basten JA that consideration of the possible intrusions on the offender’s liberty and privacy are appropriately taken into account at that intermediate and final stage of exercise of the discretionary power. Contrary to the appellant’s submissions in the present case, there is nothing inherently artificial in separating the adverse consequences for him and dealing with them only after the threshold assessment of unacceptable risk has been made.”

45. However, in oral argument, senior counsel for the applicant sought to distinguish Lynn on the following basis: [23]

“That relates to whether it can be taken into account in determining whether a risk is acceptable or unacceptable, whether acceptability requires consideration of the general right to liberty so that on one view, on one possible interpretation rejected in Lynn, it may have been that society is prepared to accept a certain level of risk when one balances that against the right of a particular individual to liberty. What that decision stands for in my submission … is that that factor, the interests of liberty and privacy are not to be taken [into] account when determining whether a risk is or is not unacceptable. That does not mean that when determining the length of an extended supervision order that the court is not required to consider whether the unacceptability of the risk without regard to the issues of liberty continues to be in place for the proposed length of the order.”

23. CA tcpt, 03/09/20, p 11(15).

46. There is no doubt that the court, in determining the duration of an extended supervision order should take into account the extent to which it infringes upon the liberty of the offender. So much was expressly recognised in Lynn. [24] Importantly, there is a difference between (i) treating a common law right as a factor to be taken into account in decision-making (under s 9), and (ii) treating it as a basis for reading down the statute (s 5B(d)). Lynn assumed that determining the duration of a possible order was not part of the exercise required under the then equivalent provision, namely s 5E (since repealed). The submission that factors affecting the interests of the offender are to be considered as part of a “gateway” provision is inconsistent with the purpose of such a provision. At the very least it is a bootstraps operation by which the liberty of the individual is invoked only if questions of duration are in issue.

    24. Lynn at [128]-[130], [141].

47. As a principle of statutory construction, the clear statement rule provides no basis for reading s 5B(d) as incorporating discretionary requirements reflecting the interests of the offender which are otherwise within the considerations relevant to the exercise of power under s 9.

Case law

48. The applicant submitted that support for his reading of s 5B(d) might be found in authorities both in this State and in Victoria. The applicant’s written submissions relied upon a passage in Bugmy v State of New South Wales [25] to the following effect:

“[43] It may be accepted, as the appellant submitted, that s 5G of the Act requires a court to fix a period of continuing detention for no longer than the period the Supreme Court judge is satisfied that adequate supervision will not be provided by an extended supervision order. To the extent that State of New South Wales v Manners [2008] NSWSC 1367 suggests otherwise, that decision should not be followed. To so conclude, however, does not demonstrate error on the part of the primary judge in this case.”

25. [2017] NSWCA 25.

49. When Bugmy was decided, the equivalent provision to s 5B, identifying who is a “high risk violent offender” was s 5E(2). (It was that provision which was addressed in Lynn.) Section 5E(2) contained a test of satisfaction to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence. Section 5G (referred to in the quoted passage) provided for the making of an order with respect to a person found to be a high risk violent offender, where adequate supervision would not be provided by an extended supervision order. Section 5G was not in its terms equivalent to s 5B in the present Act. The passage from Bugmy therefore provides no assistance in construing s 5B.

50. Further, had it been material, the statement in Bugmy could have carried little weight. The proposition put forward by the applicant was accepted without analysis in its terms, because even on that basis the application failed. It was not necessary to consider whether the submission was justified.

51. Passing reference was made to the recent decision of Garling J in State of New South Wales v WXN1. [26] No issue arose in that case as to whether an extended supervision order should be made; the only issues for consideration were the conditions of the order and the duration. Even a term of three years was not disputed. [27] With respect to the imposition of a particular term, Garling J stated:

“[19] The power of the Court to fix the length of an ESO is contained in s 10 of the HRO Act. That section provides for a maximum period of five years. That specification of the period is at large and unconstrained by any other legislative provision. The length of an ESO must be determined as being appropriate by reference to the promotion and consistency of the objects of the Act, which are contained in s 3 of the HRO Act.”

26. [2020] NSWSC 993.

27. WXN1 at [20].

52. For reasons already stated, that was an unexceptionable reliance upon s 3(1), in the exercise of the Court’s discretion.

53. Finally, the applicant placed reliance upon what appears to have been the only consideration of similar legislation in the Victorian Court of Appeal, namely ARM v Secretary to the Department of Justice. [28] The passage relied upon by the applicant was in the following terms:

“[13] It is implicit in section 14, and both sides accepted, that if the court is not satisfied to a high degree of probability that the offender will remain likely to commit a relevant offence for the whole 15 years period referred to in s 14, the period of the order should be set at such lesser period as for which the court is satisfied to a high degree of probability that the offender will be likely to commit a relevant offence unless subjected to the programme.”

28. (2008) 29 VR 472; [2008] VSCA 266 (Maxwell P, Nettle and Weinberg JJA).

54. To understand the relevance of this statement it is necessary to have regard to the provisions of the Serious Sex Offenders Monitoring Act 2005 (Vic), as then in force, which were as follows:

“11.   When may a court make an extended supervision order?

(1)   A court may only make an extended supervision order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order.

…

(3)   In determining whether the offender is likely to commit a relevant offence in the circumstances described in subsection (1), the court must, subject to subsection (5), have regard to –

(a)   any assessment report …; and

(b)   any other report made, or evidence given, by a medical expert –

and may have regard to anything else that it considers appropriate.

…

(6)   If the court makes an extended supervision order, the Secretary must cause a copy of the order to be given as soon as practicable to the Adult Parole Board.

12.   Extended supervision order

(1)   An extended supervision order must state that the court making it is satisfied that the offender is likely to commit a relevant offence if released in the community in the circumstances referred to in section 11(1).

…

13.   Commencement of extended supervision order

…

14.   Duration of extended supervision order

(1)   Unless sooner revoked, the period of an extended supervision order is the period (not exceeding 15 years) determined by the court and specified in the order.

…

55. Three factors indicate that ARM is of no assistance in construing s 5B(d). First, this particular Victorian Act did not separate a gateway provision setting out conditions of engagement of the power to make an order from the provision empowering the court to make an order or refuse the application. Thus, s 11 did not reflect the structure found in s 5B and s 9 of the New South Wales legislation.

56. Secondly, the inference that the Court relied upon was not drawn from s 11, but from s 14(1), which finds its nearest equivalent in s 10 of the Act. Had reliance been placed on s 11(1), it should be noted that the Court construed “likely” as meaning “more likely than not”, a construction not available under s 5D of the New South Wales Act.

57. Thirdly, the constraint on the proper exercise of the power to limit the duration of the order was merely “implicit” in s 14 and was not a matter of dispute. In fact, as in Bugmy, nothing would have turned on this consideration beyond providing a structure for the judgment. The Court held that, on the evidence, the eight year supervision order imposed by the primary judge did not exceed the implicit limitation contained in s 14.

58. In short, there was nothing in the existing case law which supported the construction of s 5B(d) contended for by the applicant.

Conclusions as to ground 1

59. It may be accepted that the language of s 5B(d) requires a forward-looking assessment in order to determine whether, when the order is to be made, there is an unacceptable risk of further offending. It may also be accepted that ARM provides some support for the proposition that, at least in Victoria under earlier legislation, the courts did not experience great difficulty in formulating opinions at the time an offender was due for release from prison as to the period during which he was likely to commit further offences. Nevertheless, to form an opinion as to when that risk will diminish so that the offender would no longer satisfy the terms of s 5B(d) is not an exercise expressly provided for, nor implicit in, the terms of s 5B(d). Rather, both the language of the provision and the structure of the legislation demonstrate clearly that there is no such limitation in determining the conditions which engage the power to impose the order. Such considerations, though not required to be specifically determined at the level of “a high degree of probability”, but rather at the level of “likelihood of the offender committing a further serious offence” are found in s 9(3). That provision specifies a number of mandatory considerations to be taken into account in determining whether to make an extended supervision order and, at least by implication, the term of the order and, pursuant to s 11, the conditions with which the offender must comply.

60. Ground 1 should be rejected.

Ground 2 – evidential error

61. The applicant submitted that, in determining to impose an extended supervision order for a period of three years, the judge had relied upon the evidence of the court appointed psychiatrist, Dr Andrew Ellis, as set out in his written report, but failed to take account of a qualification by way of concession in his oral evidence. The concession was material because the primary judge had “framed the competing positions between the parties in relation to duration as a contest between the opinions of Dr Ellis and Mr Sheehan”, [29] Mr Sheehan being the psychologist appointed by the Court. Dr Ellis had favoured a three year period; Mr Sheehan a two year period.

    29. Applicant’s written submissions, par 47.

62. The reasoning of the trial judge with respect to the issue of duration was concisely stated in the following paragraphs: [30]

“[70]   The plaintiff proposes a duration for the ESO of 3 years, based, it is said, on the expression of opinion by Dr Ellis that the period of 3 years for an ESO was reasonable. Mr Sheehan, on the other hand, expressed the view that a period of 2 years may be sufficient to achieve more enduring community adjustment, as I have recited earlier. As a consequence of that latter opinion, the defendant proposes a period of 2 years.

[71]   In my view, a period of 2 years is insufficient, if the Court is required to put the safety of the community as the primary purpose in the making of an ESO. There is no doubt that the 2 years in which the defendant has been at liberty, and during which the defendant has not offended, are a strong indication that the defendant has sufficiently rehabilitated to warrant a shorter, rather than longer, ESO.

[72]   Nevertheless, the most that Mr Sheehan opines is that the 2-year period ‘may be sufficient’. In my view, a 3-year period is neither unreasonable nor inappropriate and will allow for continuing rehabilitation and treatment in the matters to which each of the experts refer. The ESO will last for 3 years.”

30. State of New South Wales v Tannous [2020] NSWSC 292.

63. A better reading of this passage is that the parties had identified the competing positions in the terms noted; the judge had regard to the evidence of both experts in forming his own view that three years was the appropriate period. He did not reject Mr Sheehan’s opinion, but merely noted that it was cautiously expressed. Neither did he simply prefer and adopt what Dr Ellis had said in his report.

64. It is convenient to set out in a little more detail how each expert formulated his conclusions and recommendations. Mr Sheehan noted that:

“Mr Tannous’ current stability is in my view somewhat tenuous, reliant on an extensive system of supports and currently maintained by reduced activity, which is not a long term solution.

Considering all available information, I am unable to express confidence that Mr Tannous is sufficiently rehabilitated to the point where he could manage himself independently in the absence of supervision. In my view there does remain a substantial risk of Mr Tannous’ deteriorating and making poor decisions that would elevate his risk of sexual offending. In the event that the threshold for an ESO is met, I would recommend that a period of two years may be sufficient to achieve more enduring community adjustment, demonstrating that he can reliably meet the challenges of community life over time without regressing to past dysfunctional behaviours.”

65. Dr Ellis noted that the applicant’s “risk profile is chronic, however, currently contained by the present regime.” He continued:

“Currently his attitude to treatment and supervision is sufficient for him to comply with conditions. This may wax and wane as his personality copes or does not with stress, but with support he should have the ability to comply.

…

From a psychiatric perspective if an ESO is applied a period of three years is considered reasonable in order to consolidate function in the community, consider future supervision structures such as the Child Protection Register and refine the appraisal of risk. Personality disorders, substance use and disorders and paraphilias are chronic or relapsing conditions and resistant to treatment and rehabilitative efforts. … Should the support be withdrawn, or he disengages from it, then instability is likely and risk would likely increase. This period of three years further supervision is estimated based on his current mental state, paraphilia and current attitudes to supervision that will be unlikely to change in the short term.”

66. Oral evidence was given jointly by the two experts. Counsel for the State first raised a number of questions with Mr Sheehan as to why he considered two years might be sufficient to achieve more enduring community adjustment. He then turned to Dr Ellis and asked if he agreed “that a period of two years may be sufficient given … the time lapse between his previous offending”; Dr Ellis responded:

“Yes. I mean, I think I've suggested three years in my report. I think that those estimates of time are just that, they're estimates and two years may – may well be sufficient and, yeah, I'm – when I make these estimates, they're subject to a range of – they're largely based on clinical experience and, to a certain degree, by the literature that suggests the nature of stabilisation of people over time, so the longer someone is in the community in stable circumstances, the better their chances are.”

67. Counsel for the applicant did not take the question of duration any further in his questioning of the experts; his written submissions, concededly prepared before the evidence was taken, were directed to the written reports of Dr Ellis and Mr Sheehan. However, no reliance was placed upon any suggested qualification of Dr Ellis’ position in oral submissions.

68. Taken in context, it is not at all clear that Dr Ellis was qualifying his earlier position that three years was a reasonable and appropriate period for an extended supervision order in this case. Unless reliance was placed upon the oral evidence as carrying some stronger inference for the applicant, there was no error in the primary judge not referring to it or placing weight upon it.

69. Ground 2 should be rejected.

Ground 3 – three year ESO not open

70. Ground 3 stated that a three year extended supervision order was not available as a matter of law in the present case. It depended upon acceptance of the construction of s 5B(d) relied upon in ground 1, together with an analysis of the relevant evidence. If ground 1 were to be rejected, the applicant conceded that ground 3 would fail. Ground 1 has been rejected, as has the analysis of the evidence suggested by ground 2. Accordingly there is no further matter to be considered in relation to ground 3.

Conclusion

71. It follows that the appeal must be dismissed. No costs order can be made against an applicant and therefore no order for costs should be made in this case. The Court should make the following orders:

1. Grant the applicant leave to appeal from the extended supervision order made in the Common Law Division on 23 March 2020.

2. Dismiss the appeal.

72. McCALLUM JA: I agree with Basten JA.

73. SIMPSON AJA: I agree with Basten JA.

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Endnotes

Decision last updated: 21 October 2020