The State of Western Australia v O'Rourke - [2010] WASC 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: THE STATE OF WESTERN AUSTRALIA -v- O'ROURKE [2010] WASC 72

CORAM: MURRAY J

HEARD: 12 JANUARY 2010, 22 MARCH 2010

DELIVERED : 13 APRIL 2010

FILE NO/S: INS 1 of 2010

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecutor
AND
CRAIG STEPHEN O'ROURKE
Accused

FILE NO/S :MCS 36 of 2008

BETWEEN :THE STATE OF WESTERN AUSTRALIA
Prosecutor
AND
CRAIG STEPHEN O'ROURKE
Accused

Catchwords:

Criminal law and procedure - Charges of disobeying an order issued by a court - Order is a supervision order made under Dangerous Sexual Offenders Act 2006 (WA), s 17(1)(b) - Whether the mode of proceeding against the accused for such disobedience under the Dangerous Sexual Offenders Act is intended to be exclusive of all other punishment - Meaning of 'punishment' in context of Dangerous Sexual Offenders Act

Legislation:

Criminal Code (WA), s 178

Result:

Offence charged is not an offence under Criminal Code, s 178
Accused discharged
Orders made concerning breach of supervision order

Category: A

Representation:

INS 1 of 2010

Counsel:

Prosecutor: Mr T B L Scutt
Accused: Mr D J McKenzie

Solicitors:

Prosecutor: Director of Public Prosecutions (WA)
Accused: David McKenzie

MCS 36 of 2008

Counsel:

Prosecutor: Mr T B L Scutt
Accused: Mr D J McKenzie

Solicitors:

Prosecutor: Director of Public Prosecutions (WA)
Accused: David McKenzie

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

A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
DPP (WA) v O'Rourke [2009] WASC 81
Fardon v Attorney‑General (Qld) [2004] HCA 46; (2004) 223 CLR 575
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Murgon Shire Council v Maudsley [1921] St R Qd 1
State of WA v Narrier [2010] WASC 57
Veen v The Queen (No 2) (1988) 164 CLR 465
Ziems v Prothonotary of Supreme Court of New South Wales (1957) 97 CLR 279

MURRAY J:

Dangerous sexual offender proceedings

On 27 March 2009, McKechnie J declared the accused to be a serious danger to the community, within the meaning of s 7 of the Dangerous Sexual Offenders 2006 (WA) (DSO Act), in that his Honour was satisfied that there was an unacceptable risk that if the accused were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence, as defined by that Act. For reasons which his Honour then gave, he decided to make a supervision order under the DSO Act, s 17(1)(b), to provide for the accused's control in the community for a period of five years: DPP (WA) v O'Rourke [2009] WASC 81.
The period of five years, which was the term of the order, commenced on 27 March 2009. There were 33 conditions. Those presently material are that the accused must:
(22)not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis;
(23)attend for, and submit to, urinalysis or other testing for prohibited drugs or substances as directed by the CCO or by a police officer, including accompanying such persons to an appropriate location for such testing to take place;
(27)not be in possession of, use, or be under the influence of, alcohol;
(29)not remain in any place where alcohol is being consumed or, if such a place is his approved address, withdraw from that part of the residence in which any such consumption is taking place;
(30)not remain in the presence of females who are affected by alcohol, unless the identity of such persons is approved in advance by the CCO;
According to the report of a supervising community corrections officer (CCO), during November and December 2009, the CCO was in possession of information which suggested that the accused had been involved in breaches of the paragraphs of the supervision order set out above. It is unnecessary to discuss that information. When the accused first came before me on 17 December 2009, it was in answer to a summons issued by a local magistrate in Bunbury, under the DSO Act, s 21(2)(a), to cause the accused to appear before this court, so that the court might consider suspected contraventions of the order.
On that date, the DPP filed an application under s 22 of the Act which, in the alternative, sought orders under s 23 of the Act. Under that section, if the court is satisfied on the balance of probabilities that the offender subject to the supervision order, 'is likely to contravene, is contravening, or has contravened, a condition of the supervision order,' the court may amend the conditions of the supervision order in order to achieve compliance with its terms, or to the extent necessary, 'in order to ensure adequate protection of the community' or, if the court is satisfied that there is an unacceptable risk that the offender would commit a serious sexual offence, then a continuing detention order under the Act may be made, ie: an order, 'that the person be detained in custody for an indefinite term for control, care or treatment'.
Of course, the DPP was not then in a position to call evidence or even to know whether he would wish to pursue his application once the facts were known. I adjourned the application to 12 January 2010, and it was then further adjourned to 22 March 2010. On each occasion it was open to me to issue a summons to compel the attendance of the accused for the continuance of the proceedings under the DSO Act: State of WA v Narrier [2010] WASC 57

The facts

On 22 March, I received in evidence a statement of agreed facts particularising the contraventions of the supervision order. In effect, the facts were admitted pursuant to s 32 of the Evidence Act 1906 (WA). The material facts may be summarised as follows.
On 24 October 2009, at about 11 pm, two off‑duty prison officers saw the accused in the Three Monkeys Bar in Bunbury. He had a drink before him, but was not seen to drink it.
At about 11.40 pm on 7 November 2009, the accused went to Fitzgerald's Irish Bar in Bunbury. He was by himself. He was seen by the same two prison officers. He bought and drank an alcoholic drink. A large number of people were there and many were affected by alcohol, including some women. At about 3.45 am on 8 November 2009, the accused left the premises in the company of a woman who was adversely affected by alcohol. They went to a tent set up nearby, which was apparently intended to take the overflow of patrons who could not be comfortably accommodated in the bar. He was there for about an hour and a half before he parted company from the woman.
On 19 November 2009, because of difficulties obtaining the accused's cooperation to attend for urinalysis and drug sampling, he was issued with a written instruction to attend urinalysis on Mondays in either Busselton or Bunbury. He failed to attend at either location on 30 November 2009, although he did so on 1 December 2009. On that day, he telephoned a police officer and admitted that on the night of 27 November 2009, following a dispute with associates, he had consumed a third of a bottle of bourbon and a small quantity of amphetamine.
He gave as the reason for not attending urinalysis and drug analysis on 30 November 2009, that he was unsure whether the drug that he had taken would show up in his urine.
When the analysis of the sample taken on 1 December 2009 was done, it revealed the presence of benzodiazepine, a prescription drug which is not an illicit substance. It may be that the accused thought he was acquiring amphetamine, but was given benzodiazepine. It seems then that it could not be established that he did more than attempt to obtain amphetamine on 27 November 2009.
The summons for him to appear before the Supreme Court in respect of those breaches of the supervision order was issued on 9 December 2009. On that date, the accused was arrested and charged with seven breaches of the supervision order and the order for urinalysis made under it. He was admitted to bail, and those criminal procedures were brought into coincidence with the proceedings under the DSO Act. I shall return to the charges of breaches of the order shortly.
Finally, although those proceedings had been commenced, on 5 January 2010, the accused was involved in social contact as a result of which he consumed alcohol without the approval of a CCO, and consumed MDMA or ecstasy. That was detected by urinalysis on 7 January 2010. Two further charges were laid, and in relation to those charges, bail was not extended to the accused or sought by him. He was therefore in custody when he appeared before the court on 22 March. So far as I can see, the accused had been in custody since about 20 January 2010.
By the time the question of contravention of the supervision order came before me on 22 March, I was able to be provided with two documents to which I particularly wish to refer. The first is an updated performance report with respect to the accused, provided by CCOs who have been involved in the management of the accused in the community. The report refers to the difficulties, from time to time, with the urinalysis which had been ordered and to those occasions when there was a positive result, to which I have previously referred.
Otherwise, it was said that the accused had, 'generally been compliant in regard to his reporting arrangements and attendance for substance use counselling and a community based sex offender treatment program - individual counselling.' I was told that the accused has been employed and has resided, and intends to continue to reside (if he is able) with his mother. He is now a young man of 32 years of age.
Further, it was reported that there was concern among CCOs that the accused had formed a number of female friendships and had entered into a relationship with a woman two months prior to his remand in custody. The observation in the report was that although the CCOs rightly viewed as positive the fact that the accused had, 'settled into the community and formed new relationships,' unless they were disclosed there was an incapacity to monitor any risk of the future commission of sexual offences.
I had available to me a report by a treating psychologist, a member of the dangerous sexual offender psychology team. It confirmed that the accused had been involved in individual counselling by a psychologist. The report makes no reference to any cause for concern that the accused is manifesting any heightened risk of serious sexual offending.
Finally, I had available to me a report by Dr Tanney, a consultant forensic psychiatrist who is familiar with the case of the accused, having been required to assess and report on the accused by McKechnie J. In summary, Dr Tanney expressed the opinion that there was no increase in the risk of serious sexual offending. In fact, he observed, the risk management strategies under the supervision order appeared to be effective and some progress had been made towards diminishing the likelihood of future sexual offending. The case management team working with the accused were said, by Dr Tanney, to be operating effectively, and he particularly noted a growing relationship of trust by the accused with members of this team, from whom he was quite likely to seek advice and support.
Dr Tanney suggested a relaxation of the conditions of the supervision order concerned particularly with the use of alcohol, conditions (27), (29) and (30). Dr Tanney thought it would be a useful advance in the treatment program to afford the accused the opportunity to distinguish between use and misuse of alcohol. This would aid his psychological rehabilitation. I accept that evidence, as did the DPP, although counsel expressed surprise at the terms of the report. I must say that it did not surprise me. Care needs to be taken in this area that the conditions of supervision are not expressed in such restrictive terms that they become a constant annoyance to an offender who, if he is to abide strictly by the conditions, lacks the opportunity to demonstrate his progress and that he is to be trusted in the community.
In this case I accepted the sensible suggestion of the DPP (as did defence counsel) that, pursuant to s 23(a), the supervision order should be amended to enhance the prospect that the order would be complied with, while not diminishing its capacity to achieve an adequate measure of protection for the community.
Paragraph (27) was amended to advance the approach to which I have referred so that it required that the accused:
not be in possession of, use, or be under the influence of alcohol except on occasions and in the amounts as approved in advance by the CCO. It is the expectation of the Court that such approval for moderate alcohol consumption shall not be unreasonably withheld, and ought be granted for normal family and community social functions unless, in the opinion of the CCO, the Respondent is, for other reasons, with respect to the period for which the approval is sought, at a particularly heightened risk of sexual re‑offending;
The original pars (29) and (30) were deleted, and in their place par (29) was reimposed to provide that the accused must:
disclose to the CCO the identity of any person with whom he commences a domestic, sexual or otherwise intimate relationship, within seven days of the commencement of that relationship;

The criminal proceedings on indictment

The indictment ultimately presented by the DPP contains eight counts of disobeying conditions of the supervision order and one count of attempting to do so (the attempt to obtain and use the prohibited drug amphetamine when the accused was apparently supplied with benzodiazepine) contrary to s 178 of the Criminal Code. The indictment concerned the original conditions (22), (23), (27) and (30 of the supervision order. The circumstances of breach constituting the alleged commission of these offences were those relied upon to ground the application made by the DPP in the proceedings under the DSO Act.
At one stage I was told that if those breaches could be satisfactorily dealt with, the State might decide not to pursue the proceedings on indictment, but to enter a nolle prosequi, discontinuing the prosecution. The accused had been arrested for the offences charged in the indictment and, for a time, had been admitted to bail, although, as has been seen, for the period leading up to the appearance before me on 22 March, the accused was held in custody. It was apparent that the predominant purpose of the prosecution, initially by prosecution notice and then upon indictment, was to give the State control of the person of the offender which it lacked, in the absence of a warrant issued under s 21(2)(b) of the DSO Act, when the magistrate issued a summons to the accused under s 21(2)(a) of that Act.
In passing, I observe that the crime defined by s 178 of the Code, disobedience to a lawful order issued by a statutory authority, is an offence punishable by imprisonment for 1 year. The power of arrest without warrant, apparently exercised in this case, is that provided by s 128 of the Criminal Investigation Act 2006 (WA), which provides a strict process conditioning the power of arrest in cases where the arrestable offence is not punishable by imprisonment for 5 years or more. This case involved no consideration of the question whether or not the terms of s 128 were satisfied.
Nor was this case put to me as one where I should make an order that the prosecution of the charges should be stayed permanently on the ground that it was in the interests of justice to do so, having regard to the collateral purpose of their initiation, to give the State control of the person of the accused pending the disposition of the proceedings under the DSO Act: Criminal Procedure Act 2004 (WA), s 90.

The issue in relation to s 178 of the Criminal Code

So far as material, s 178 of the Criminal Code provides:
Any person who, without lawful excuse, the proof of which lies on him, disobeys any lawful order issued by any court of justice, or by any person authorised by any public statute in force in Western Australia to make the order, is guilty of a crime, unless some mode of proceeding against him for such disobedience is expressly provided by statute, and is intended to be exclusive of all other punishment.
The terms of this section are unchanged since the enactment of the Criminal Code in 1913, and they are in terms indistinguishable from the offence provided under the Queensland Criminal Code, from which s 178 was derived. Section 178 has been amended only once, in 2004, to redefine the offence as a crime rather than a misdemeanour, upon the abandonment of the latter form of indictable offence.
The issues as to the application of this section in this case, which is concerned with disobedience of a lawful order, the supervision order issued by McKechnie J, do not include the question whether the disobedience was with or without lawful excuse. The accused raised no such point by way of defence. The question raised, however, was whether s 178 was capable of application to the case of the accused at all, on the ground that a mode of proceeding against him for disobedience to the supervision order which, as I have said, was, in the nine instances alleged, admitted, is expressly provided by the DSO Act and is intended to be exclusive of all other punishment.
The accused raised the crucial issue whether the procedure under the DSO Act for disobedience to the supervision order was 'intended to be exclusive of all other punishment', by entering a plea, when he was arraigned, under s 126(1)(b) of the Criminal Procedure Act in relation to each of the nine counts on the indictment. He pleaded that the offences charged were not offences under s 178 of the Code, because of the argument raised as to the exclusivity of the procedure under the DSO Act.
Charges have been rarely laid under s 178 or an equivalent provision in another jurisdiction. That is hardly surprising because if it is the case that the act of disobedience to the order of a court or statutory authority constitutes the commission of another offence, it will be appropriate to charge that other offence. The principal field for the operation of s 178 would, one assumes, be where the conduct in question is otherwise not contrary to law and is only made unlawful by the order of the court or a statutory authority. In such a case one would expect that if it was a statute which empowered the making of the order so that it would be properly described as a lawful order, that statute would impose its own sanction for the breach of the order.
Perhaps because it is so rarely used, the researches of counsel and the court turned up only one case on a similar section, a decision of the Full Court of Queensland in Murgon Shire Council v Maudsley [1921] St R Qd 1. The case concerned a failure by an occupier of rural land to comply with a notice to eradicate noxious weeds, issued under the relevant Queensland statute. That statute provided that upon such a failure, the local government could enter upon the land, undertake the destruction of the weeds and recover the expense from the occupier. A procedure for that recovery in a summary court was provided.
Not only was the occupier proceeded against for an order that he should pay the costs incurred by the local government, but he was prosecuted under another provision of the statute which, inter alia, made it an offence to fail to perform an act lawfully directed to be done under the statute, an offence very much of the kind provided in s 178 of the Code. The question before the court was whether the occupier could be both proceeded against to recover the cost of the work done by the local government and prosecuted and fined for the offence of failing to do the work himself.
At 6 ‑ 7 the Full Court said that the offence creating provision must be read subject to an implied proviso similar to the express proviso contained in s 204 of the Criminal Code, the equivalent, expressed in the same terms, of our s 178. It was held that the offence creating provision of the Act would be available, 'unless some mode of proceeding against him for such disobedience is expressly provided … and is intended to be exclusive of all other punishment'.

The court held that because the provisions concerned with the making of an order to eradicate the weeds and empowering the local government to do so at the expense of the occupier of the land, were in a different part of the Act from the general offence creating provision, that process should be regarded as a code which, when used, was intended to be exclusive of any other punishment. There was no express attention given to the question whether the power to do the work and recover the cost of doing so should be regarded as a 'punishment'. The case rather turned on the view of the court that that process of recovery was an exclusive code which ought to be regarded as precluding the application of the general provision making it an offence to fail to obey the lawful direction which had been given.

'Exclusive of all other punishment'

As has been seen, there is a clear process laid down in s 21 ‑ s 23 of the DSO Act. Those sections are in Part 2 of the Act headed, 'Continuing detention or supervision' and are the content of Div 4 of that Part headed 'Contravention of supervision order'. I have referred to the terms of s 21 ‑ s 23. Section 21 provides that a process by which proceedings under the Act in respect of a contravention which is reasonably suspected to have occurred, to be occurring, or to be likely to occur, may be instituted and the offender brought before this court. Thereupon, the DPP may make an application under s 22. There are other provisions, of course, which flesh out how that application is to be dealt with by the court. I refer generally to the provisions in Part 6 of the DSO Act which contains general procedural provisions. The substantive powers of the court on the hearing of the application made under s 22 are set out in s 23. In my view, the structure of the DSO Act in that regard has every appearance of being a code to enable contraventions of a supervision order to be dealt with.
The DPP, however, argues that those provisions, properly interpreted, are not to be regarded as providing for 'punishment' for contraventions. He argues that they are ultimately directed to making an order under s 23(a) which the court considers is appropriate or necessary, 'in order to ensure adequate protection of the community' while allowing the offender to remain at liberty.
Further, it is argued that it is only if the court is satisfied that there is an unacceptable risk that the offender would commit a serious sexual offence if allowed to remain at liberty that an order may be made for his indefinite detention under s 23(b). Such an order, the DPP points out, is directed to the 'control, care, or treatment' of the offender, as is the case if such an order is to be made initially on a substantive application, under s 17(1)(a). In that event, the DPP points out, by s 17(2), 'the paramount consideration is to be the need to ensure adequate protection of the community'.
That is indeed the central object of the Act under s 4 which provides:
The objects of this Act are -
(a)to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community; and
(b)to provide for continuing control, care, or treatment, of persons of a particular class.
Reading the Act as a whole makes it clear that the 'persons of a particular class' who may be the subjects of its provisions are offenders in respect of whom the court may be satisfied that they pose a serious danger to the community in that there is an unacceptable risk that if they were not subject to a form of order under the Act, they would commit a serious sexual offence: s 7. In a real sense therefore, in my respectful opinion, the DPP is right to argue that the purposes of the Act are remedial. They are designed to protect the community from the commission of serious sexual offences.
But that is not to say that the provisions of the Act should not be regarded as being punitive in their character when they may have the effect that a person whose sentence has been served may continue to be detained in custody, or at least may be the subject of an order which may, in a number of ways under s 18, significantly proscribe the capacity of the person concerned to exercise the ordinary liberties of a person at large in the community. The protection of the community is, after all, a central aim of the imposition of a sentence under the criminal law: Veen v The Queen(No 2) (1988) 164 CLR 465 in which case Mason CJ, Brennan, Dawson and Toohey JJ said:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions (476).
For the DPP particular reliance is placed upon the decision of the High Court in the case Fardon v Attorney‑General (Qld) [2004] HCA 46; (2004) 223 CLR 575. The case was concerned with the question whether in its entirety the Queensland equivalent of the DSO Act of this State, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), was a valid exercise of legislative power, or whether the Act was invalid because it impaired the institutional integrity of the Supreme Court of Queensland by reason of its conferral of powers which were essentially administrative rather than judicial in character, so as to be incompatible with the Supreme Court's constitutional position as a potential repository of federal judicial power, only able to be exercised by a court exercising judicial power in the accepted sense: Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
By a majority of six judges, Kirby J dissenting, the High Court upheld the validity of the legislation. But the result is not significant for present purposes and I refer to it only to make the point that the case was not directly or at all concerned with the question whether the exercise of powers such as those conferred by the Queensland equivalent of our s 23 would amount to the imposition of 'punishment'.
For the DPP reliance is, however, placed upon a number of obiter observations by members of the court. At 592 Gleeson CJ said:
Unless it can be said that there is something inherent in the making of an order for preventive, as distinct from punitive, detention that compromises the institutional integrity of a court, then it is hard to see the foundation for the appellant's argument. As was noted above, there is legislation, in Queensland and elsewhere, providing for sentencing judges to impose indefinite sentences, or sentences longer than would be commensurate with the seriousness of a particular offence, by way of response to an apprehension of danger to the community … The existence of legislation of that kind makes it difficult to maintain a strict division between punitive and preventive detention [20].
To my mind, those observations are consistent with the view that to discern a preventive object in the capacity to make an order against a person does not mean that the person is not being punished. Indeed on the contrary, the proper conclusion may be that the punishment is imposed for preventive purposes.
After reviewing the statutory processes under the Queensland Act, McHugh J noted, at 597, that:
the Act is not designed to punish the prisoner. It is designed to protect the community against certain classes of convicted sexual offenders who have not been rehabilitated during their period of imprisonment [34].
To my mind, that expresses the same distinction as that emerging from the observations of Gleeson CJ. It is no more than a reference to the purpose of a continuing detention order and does not express the view that such an order when made would not constitute punishment.
Similarly, at 610 [74], Gummow J observed that the power to make a continuing detention order would not be struck down by the application of the double jeopardy principle because the making of such an order was not to punish the offender twice for the offences he had committed, but was an order made having regard to the offender's status as a danger to the community. These observations do not, in my opinion, assist the DPP.
Hayne J expressed his general agreement with the reasons of Gummow J and in doing so, at 647, said:
[O]nce it is accepted, as it has been in Australia, that protection of the community from the consequences of an offender's re-offending is a legitimate purpose of sentencing (Veen v The Queen (No 2)), the line between preventative detention of those who have committed crimes in the past (for fear of what they may do in the future) and punishment of those persons for what they have done becomes increasingly difficult to discern [196].
Again, it seems to me that Hayne J is not saying that preventive detention is a concept which is inconsistent with the imposition of punishment.
Callinan and Heydon JJ, on the other hand, at 653 ‑ 654 [214] ‑ [217] under the heading, 'Detention under the Act is for non‑punitive purposes', certainly firmly expressed the view that continuing detention under the Act, having regard to the purposes of the Act, was 'non‑punitive'. When that part of their Honours' judgment is read closely, it seems to me that they too are referring to the purpose of the making of a continuing detention order rather than its character as having a punitive impact and quality so far as the offender is concerned.
Finally, the dissenting member of the court, Kirby J, did in part base his reasons as to the validity of the Act upon the notion that detention under the Act was punitive in character. In so saying it is clear that his Honour was having regard to the nature or character of the order depriving the individual of his freedom rather than the purpose of so doing. In my opinion, the passages from Fardon upon which the DPP relies, do not assist to draw the court to the conclusion urged upon it; that the character of the orders to which an offender may be subjected under the Act does not constitute 'punishment' as that term would ordinarily be understood.
In my opinion, the view to be taken of the relevant provisions of the DSO Act is not unlike that provided for in the Legal Profession Act 2008 (WA) and to similar effect in the Legal Practice Act 2003 (WA), the Act it replaced. Part 13 of the Legal Profession Act deals with complaints and discipline. The purposes of the Act in this regard are set out in s 401 which is in the following terms:
The purposes of this Part are as follows -
(a)to provide for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b)to promote and enforce the professional standards, competence and honesty of the legal profession;
(c)to provide a means of redress for complaints about lawyers.
A lawyer may be subjected to the disciplinary processes provided in the Act for unsatisfactory professional conduct or professional misconduct. A detailed procedure for the investigation and prosecution of complaints of this kind is provided. The jurisdiction of the State Administrative Tribunal is carefully spelled out. It has certain disciplinary powers, but the ultimate powers are those exercisable by a full bench of the Supreme Court under s 444, which is headed, 'Court may punish'.
There are all sorts of powers - suspension of the lawyer's practising certificate, the imposition of conditions upon the right to practise, a reprimand, the imposition of a fine, requiring the lawyer to undergo a course of legal education or to pay compensation, an order that the lawyer may practise subject to supervision, an order that the lawyer undergo counselling or medical treatment, the appointment of a mentor and the like.
The ultimate sanction, however, under s 444, is to order the removal of the lawyer's name from the roll. It has long been accepted that the question is what is necessary to secure an adequate degree of protection for the community. The jurisdiction is protective of the public: Ziems v Prothonotary of Supreme Court of New South Wales (1957) 97 CLR 279; A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253. The purpose is to protect the community, but the orders which may be made are recognised to be punitive in character. They are punishments.
I am inclined to the view that the proviso to s 178 that the mode of proceeding against the accused for disobedience to the statute expressly provided by it, 'is intended to be exclusive of all other punishment', does not require that the mode of proceeding provided be characterised as 'punishment'. But if it is necessary that to exclude the operation of s 178 it is necessary to discern an exclusive provision of punishment in the other statute, then in my opinion although the ultimate purpose of making orders under the DSO Act is to achieve a measure of protection for the community from the future commission of serious sexual offences by the offender in question, nonetheless the character of the orders which may be made, whether a supervision order or a continuing detention order, is punitive. Within the meaning of s 178 the making of such orders would constitute 'punishment'.
In fact however, in my view, the exclusion of the operation of s 178 depends upon the exclusive nature of the mode of proceeding against the accused which is provided by the DSO Act in respect of disobedience to lawful orders made by this court under that Act. As to that, I am satisfied that the proper interpretation of the relevant provisions of the DSO Act is that they are intended to operate as a code by which reasonably apprehended past breaches of a supervision order, continuing breaches of a supervision order, or future breaches of a supervision order, may be dealt with. The provisions of the DSO Act are to operate exclusively of other statutory processes.
Under s 128(2) of the Criminal Procedure Act 2004 (WA), I enter judgment for the accused upon the plea that the offences charged are not offences under s 178 of the Code. The accused is discharged from further proceedings upon the indictment.