The State of Western Australia v ACW [No 4]

[2023] WASC 14

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ACW [No 4] [2023] WASC 14

CORAM:   ALLANSON J

HEARD:   27 JANUARY 2023

PUBLISHED           :   1 FEBRUARY 2023

FILE NO/S:   SO 10 of 2019

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

ACW

Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 - Where s 53 of the Act applies to an offender who is charged with an offence under s 80 - Where the respondent was convicted and sentenced before application brought - Whether s 53 applies

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Application for orders under s 53 and s 54 dismissed

Representation:

Counsel:

Applicant	:	Mr B Meertens
Respondent	:	Mr T Hager

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid (WA)

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

R v Unger [1977] 2 NSWLR 990

Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73

ALLANSON J:

Introduction

1. On 10 January 2023, the State of Western Australia filed an application for orders pursuant to pt 4 div 5 of the High Risk Serious Offenders Act 2020 (WA) in relation to the respondent. In a hearing before me on 27 January 2023, the State of Western Australia applied for:

   (1)An order under s 53(2)(b) that the respondent be detained in custody while proceedings on the contravention application are pending.

   (2)Orders under s 54 and for programming the hearing of the State's application.

   (3)Orders relating to the uplift and copying of material produced to the court on summons.

2. I dismissed the State's application and said that I would publish my reasons.  These are the reasons. 

3. All references to legislation are to the High Risk Serious Offenders Act.

Chronology

1. In December 2020, the respondent was found to be a high risk serious offender and an order was made for his detention under the Act.

2. On review in 2022, it was ordered that the respondent be released on a supervision order under the Act.  The order was subject to 55 conditions.  The respondent was released on 8 March 2022.

3. On 3 May 2022, the respondent was arrested.  On 4 May 2022 and 9 May 2022, he was charged with four offences of contravening a requirement of the supervision order - the offences being committed between 24 April and 3 May 2022.

4. On 18 May 2022, the respondent pleaded guilty to all charges in the Magistrates Court and was sentenced to imprisonment for nine months, backdated to 13 May 2022, and a fine of $1000.

5. The respondent was made eligible for parole, but the Prisoners Review Board denied his release.  His sentence expires on 12 February 2023.

6. The State brought this application on 10 January 2023.

The legislative framework

1. Part 4 div 5 of the Act deals with contravening a supervision order.

2. By s 51, a police officer or community corrections officer who reasonably suspects that an offender who is subject to a supervision order is likely to contravene, is contravening, or has contravened, a condition of the order may apply to a magistrate for warrant.  A person applying for a warrant must advise the State as soon as practicable that the application has been made.[1]

   [1] Section  51(2).

3. If the magistrate is satisfied that there are reasonable grounds for the suspicion, and the application is supported by evidence on oath, the magistrate must issue a warrant for the offender to be arrested and brought before the Supreme Court for the court to consider the suspected or anticipated contravention.

4. Section 53 provides:

   (1)This section applies to —

   (a)an offender who is brought before the Supreme Court under a warrant issued under section 51(3) or 56(7)(d); and

   (b)an offender who is charged with an offence under section 80(1).

   (2)In relation to the offender, the State may apply for —

   (a)an order under section 55; and

   (b)an order for the offender to be detained in custody while proceedings on the application for an order under section 55 are pending.

   (3)The application must state what order is sought under section 55.

5. Sections 54 and 55 provide for orders that the court may make 'where an application is made under section 53', and 'on the hearing of an application under section 53'.

6. Finally, s 80 enacts the offence of contravening a supervision order.  By s 80(4), a police officer who suspects on reasonable grounds that an offender has committed an offence under s 80(1) may arrest the offender without warrant.  A police officer who charges an offender with an offence against s 80 must inform the State as soon as practicable.

7. Section 81(4) and (5) provide for the prosecution of an offence to be commenced in the Supreme Court, or transferred to the Supreme Court, where proceedings have been commenced under pt 4 div 5 in respect of the offender in relation to the same conduct as that constituting the offence, and the contravention proceedings have not been concluded.

The application of s 53

1. Section 53 applies to:

   (a)an offender who is brought before the Supreme Court under a warrant issued under s 51(3) or s 56(7)(d); and

   (b)an offender who is charged with an offence under s 80(1).

2. In this matter, the State relied on s 53(1)(b), and contended that the respondent is an offender 'who is charged' with an offence under s 80(1).

3. The State brought the present application while the respondent was still subject to the sentence that was imposed for the breaches of s 80.  The State did not, however, confine its submission to such a case.  Its position was that, by s 53(1)(b), s 53 would apply to an offender who has been charged at any time.  The only limitation would be that the respondent is an 'offender' as defined in s 3, that is, a serious offender under custodial sentence,[2] or a serious offender under restriction.

   [2] Section 3 defines 'serious offender under custodial sentence'.  The respondent does not come within that definition.

4. The critical question is what is the proper construction of s 53(1).  The legislature applied s 53, relevantly, to 'an offender who is charged with an offence'.  Does the intended meaning of the words used, in the context of the Act, extend to a person who has been charged and convicted before the application is brought.

5. I was not able to find any authority considering this question, and counsel for the State was not aware that it had previously arisen.

6. In my opinion, the section does not have the meaning for which the State contended, for these reasons.

7. First, s 53 provides the circumstances in which an application may be made under s 55 to either rescind a supervision order and make a continuing detention order, or to amend or affirm the supervision order.  Section 53(1) has two limbs.  The first limb would permit the respondent to be brought before the court on warrant under s 51; the second limb, without warrant, where a person is charged and is thus subject to the court's jurisdiction pursuant to s 81(4) and (5).  If no charge is pending, and there is no warrant, there is no order or other process by which the respondent may be brought before the court.

8. Second, in requiring the State to be notified as soon as practicable on an application for a warrant under s 51, or where an offender has been arrested under s 80, the Act provides for the State to be able to act quickly in relation to an offender reasonably suspected of breach.

9. Third, the fact that a person may have the charge for an offence under s 80 dealt with quickly on a plea of guilty does not, in some way, impair the safety of the community if s 53(1)(b) does not apply.  An offender may be brought before the court on warrant where the requirements of s 51 are met.

10. Fourth, the State's construction would apply s 53 for an indeterminate time after a person has been convicted of an offence, and perhaps even after charges have been dismissed.

11. Fifth, on an offender being convicted of an offence, the criminal liability for the conduct that contravened the Act merges with the conviction.[3]  The offender is, no longer, properly described as a person who is charged with an offence.

    [3] R v Unger [1977] 2 NSWLR 990, 995; Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73, 106.

12. Accordingly, my opinion is that, on the proper construction of the Act, s 53 did not apply to the respondent.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

TB

Associate to the Honourable Justice Allanson

1 FEBRUARY 2023