The State of Western Australia v PAS [No 2] - [2021] WASC 59

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PAS [No 2] [2021] WASC 59
CORAM:   QUINLAN CJ
HEARD:   4 MARCH 2021
DELIVERED          :   4 MARCH 2021
PUBLISHED           :   5 MARCH 2021
FILE NO/S:   SO 13 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PAS
Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Contravention proceedings – Whether interim supervision order a supervision order within the meaning of the Act

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Interim supervision order affirmed

Category: A

Representation:

Counsel:

Applicant	:	T W McPhee
Respondent	:	T Hager

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	T Hager

Cases referred to in decision:

Cabell v Markham (1945) 148 F (2d) 737
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs & Anor (1992) 176 CLR 1
East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457
Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575
Hill v William (Park Lane) Ltd [1949] AC 530
Johnson v Vander Sanden [2021] WASCA 27
The State of Western Australia v Lawrence [2020] WASC 462
Thiess v Collector of Customs (2014) 250 CLR 664
Young Investment Group Pty Ltd v QBE insurance (Australia) Ltd [2019] WASC 74

QUINLAN CJ:

(This judgment was delivered extemporaneously on 4 March 2021 and has been edited from the transcript.)

Introduction

The respondent is before the Court pursuant to a warrant issued under s 51 of the High Risk Serious Offenders Act 2020 (WA) (the Act) issued on the basis that he has contravened a supervision order made under the Act.
On 18 September 2020, the State of Western Australia made an application under the Act for an order that a restriction order be imposed on the respondent.
On 10 November 2020, Allanson J conducted a preliminary hearing under s 46 of the Act in relation to the restriction order application. His Honour was satisfied that there were reasonable grounds for believing that the Court might find that the respondent is a high risk serious offender.
At the same time, Allanson J made an interim supervision order in relation to the respondent pursuant to s 58(5) of the Act. It is that order that the respondent is said to have contravened.
The respondent has not been found to be a high risk serious offender within the meaning of the Act. The restriction order application has not been determined.
On 22 December 2020, the State commenced contravention proceedings against the respondent under pt 4 div 5 of the Act (pursuant to s 53 of the Act). The respondent was also charged on that day with six offences contrary to s 80 of the Act (namely contravening a supervision order).
The respondent was remanded in custody on the charges under s 80. On 2 March 2021 (i.e. two days ago), the charges under s 80 were dealt with by the Magistrates Court. The respondent pleaded guilty to each charge and was sentenced to a fine in relation to each charge. He was, accordingly, discharged from custody.
Yesterday evening, as a consequence (I infer) of the respondent's release following the finalisation of the charges under s 80 of the Act, a warrant was issued for the respondent's arrest under s 51 of the Act. As with the charges under s 80, that warrant presupposes that the interim supervision order made by Allanson J was a 'supervision order' within the meaning of pt 4 div 5 of the Act.
When the matter came before me today, once the respondent was given the opportunity to provide instructions and obtain advice, he sought to have the contravention proceedings finally determined. That is, the respondent accepted that he contravened the interim supervision order and that I should make an order under s 55 of the Act. The State accepted that the contravention proceedings could be determined today.
To that end, I put to the respondent, and he accepted, that he had contravened the interim supervision order on six occasions during December 2020. The contraventions admitted by the respondent were that:
1.on 9 December 2020 he provided a sample for urinalysis which was returned on 14 December 2020 being dilute and therefore not considered a valid sample in contravention of condition 22 of the interim supervision order;
2.on 11 December 2020 he provided a sample for urinalysis which was returned on 15 December 2020 being dilute and therefore not considered a valid sample in contravention of condition 22 of the interim supervision order;
3.on 16 December 2020 he provided a sample for urinalysis which returned a positive result for tetrahydrocannabinoid in breach of a written lawful instruction given under the interim supervision order that he must not consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies in contravention of condition 4 of the interim supervision order;
4.on 16 December 2020 he provided a sample for urinalysis which returned a positive result for methylamphetamine in breach of written lawful instruction given under the supervision order that he must not consume or use any prohibited drugs to which the Misuse of Drugs Act 1981 (WA) applies in contravention of condition 4 of the interim supervision order;
5.on 16 December 2020 he provided a sample for urinalysis which was returned on 21 December 2020 being dilute and therefore not considered a valid sample in contravention of condition 22 of the interim supervision order; and
6.on 18 December 2020 the GPS electronic monitoring system indicated that he had not returned home by 6.00 pm. The respondent was contacted by the Electronic Monitoring Officers from the Department of Justice and required him to return home, which he did arriving home at 6.13 pm in contravention of condition 15 of the interim supervision order (which required that he stay at the residence referred to in that order between 1800 hours and 0600 hours daily).
The respondent clearly accepted that he had contravened the conditions of the interim supervision order. Nevertheless, those contraventions can only be dealt with under s 55 of the Act if an 'interim supervision order' made under s 58(5) is a 'supervision order' within the meaning of pt 4 div 5 of the Act (including s 51 and s 55).

Is an 'interim supervision order' made under s 58(5) a 'supervision order' within the meaning of pt 4 div 5 of the Act?

Whether an interim supervision order made under s 58(5) is a 'supervision order' within the meaning of pt 4 div 5 of the Act is a question of statutory construction which has not previously been determined.
The issue was referred to by Derrick J in The State of Western Australia v Lawrence.[1]
[1] The State of Western Australia v Lawrence [2020] WASC 462 (Lawrence) [152] ‑ [153] (Derrick J).
In that case, heard on 11 December 2020, the State of Western Australia submitted that pt 4 div 5 (which includes s 51 and s 55) and s 80 apply only to a 'supervision order' that is imposed under the Act, which is by definition distinct from an 'interim supervision order'. Derrick J described the submission as follows:[2]
In making his submissions in relation to the question whether the respondent should, pending the determination of the restriction order application, be detained or released on an interim supervision order, the applicant's counsel argued that an additional reason for not releasing the respondent on an interim supervision order is that the Act, due to what appears to be a legislative oversight, does not contain any provisions that enable the conditions of an interim supervision order, as opposed to a supervision order, to be enforced. Counsel contended in this context that div 5 and s 80 of the Act apply only to a supervision order imposed under the Act which is by definition distinct from an interim supervision order imposed under s 58(3), s 58(4) or s 58(5) of the Act. The respondent's counsel did not seek to advance a contrary argument.
[2] Lawrence [152] (Derrick J).
Derrick J did not need to decide the issue when it was raised in Lawrence, although his Honour observed that there was some merit in the State's submission.
Before me today, the State made precisely the opposite submission, namely that an 'interim supervision order' made under s 58(5) is a 'supervision order' within the meaning of pt 4 div 5. That is not a criticism of counsel who appeared for the State before me, Mr McPhee, whose submissions were entirely proper. Mr McPhee readily accepted that there had been a divergence of views on the part of the authorities of the State in relation to the issue.
Needless to say, however, that is a result that is most unsatisfactory in relation to legislation that concerns the liberty of the subject. That the legislation should be so unclear that the State has, in the space of a few months, made contradictory submissions bespeaks the need for legislative attention. As I will come to later, there are other problems that arise from the provisions of the Act in this regard that will need to be addressed.
The issue of statutory construction left open by Derrick J, however, arises squarely for determination by me. That is because:
(a)if the interim supervision order is a 'supervision order' within the meaning of pt 4 div 5, I must deal with the respondent under s 55(1) of the Act; and, alternatively,
(b)if the interim supervision order is not a 'supervision order' within the meaning of pt 4 div 5, there is no power for me to do anything under the Act. Indeed, in that event, the warrant under which the respondent was arrested and brought before me today would have been a nullity.
The effect of the resolution of this issue of statutory construction could not be more stark. It concerns not only the Court's powers under the Act, but indeed, whether the respondent is before me pursuant to a lawfully issued warrant.
The issue of statutory construction therefore cannot be deferred. I must deal with it now, notwithstanding that an issue of such significance would perhaps have been better addressed following the benefit of comprehensive submissions.
As I have already observed, if the interim supervision order is a 'supervision order' within the meaning of the Act, there is no contest that the respondent contravened the order and is liable to be dealt with under s 55.
Of course, if the interim supervision order is not a 'supervision order' within the meaning of the Act, the charges under s 80 to which the respondent pleaded guilty would not have disclosed an offence known to law and the respondent's convictions would be liable to be set aside on appeal. That is not a matter before me today, but it does highlight the problem created by the terms of the legislation and the differing views that the State has taken over the past few months.
I turn then to the question of statutory construction.
The Court's task in answering that question must begin and end with the statutory text as a whole, considered in its context, including its objectively discerned statutory purpose.[3]
[3] Johnson v Vander Sanden [2021] WASCA 27 [72] (Quinlan CJ, Buss P & Mazza JA).
Turning then to the relevant provisions.
Section 3 of the Act defines 'interim supervision order' as follows:
interim supervision order means an order under section 58.
Section 58, in turn, relevantly provides:
58.Interim supervision order
(1)In this section –
specified means specified by the court in an order made under this section.
(2)This section applies if –
(a)proceedings on a restriction order application or an application made under section 49 or 53 are pending (the pending proceedings); and
(b)the offender to whom the pending proceedings relate is not in custody; and
(c)the court is satisfied that, to ensure adequate protection of the community, it is desirable to make an order under this section.
…
(5)In any other case, the court may at any time in the pending proceedings order that, with effect from a specified date and until the pending proceedings are finally determined or until another specified date, the offender is to be subject to stated conditions that the court, subject to subsection (6), considers appropriate.
(6)Section 30 applies to an order under this section as if it were a supervision order.
Section 58(6) immediately points up the problem. It suggests that an order under s 58 (i.e. an interim supervision order) is not a 'supervision order', hence the use of the expression 'as if'. The expression 'as if' suggests that s 58(6) is a deeming provision, applying s 30 (which relates to a supervision order) to something that is not a supervision order.[4]
[4] See East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457, 478 (Hill J); Young Investment Group Pty Ltd v QBE insurance (Australia) Ltd [2019] WASC 74 [110] ‑ [112] (Quinlan CJ).
Section 3 defines 'supervision order' as follows:
supervision order has the meaning given in section 27(1).
Section 27(1) provides:
In this Act a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30.
Subject to the definition of 'offender', the definition of 'supervision order' in s 27(1) would appear broad enough, in its natural and ordinary meaning, to include an order under s 58 of the Act.
The definition of offender in s 3 is:
offender means –
(a)a serious offender under custodial sentence; or
(b)a serious offender under restriction.
Relevantly, 'serious offender under restriction' is defined, in s 3, to mean 'a person who is subject to a restriction order or an interim supervision order'.
The express inclusion of an interim supervision order in this definition itself gives rise to an ambiguity.
On the one hand, it confirms that a person the subject of an interim supervision order is expressly intended to be included within the meaning of 'offender'. That lends support to a construction of s 27(1) to the effect that the definition of 'supervision order' includes an 'interim supervision order'.
On the other hand, the express inclusion of an interim supervision order in the definition of 'serious offender under restriction' suggests that an interim supervision order would not otherwise be a supervision order.
That is because 'restriction order' is defined, in s 3, as follows:
restriction order means –
(a)a continuing detention order; or
(b)a supervision order.
If an interim supervision order already fell within the definition of 'supervision order' there would be no need for the express inclusion of interim supervision order in the definition of 'serious offender under restriction'. It would already be included by reason of the definition of restriction order.
The express inclusion of an interim supervision order would therefore, according to that construction, be surplusage. There is, of course, a presumption that words in a statute should be given some meaning and are not superfluous (i.e. a presumption against surplusage) although that is a rule of construction which has been described in the High Court as being of limited application.[5]
[5] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs & Anor (1992) 176 CLR 1 at 12 ‑ 13 (Mason CJ); citing Hill v William (Park Lane) Ltd [1949] AC 530, 546 ‑ 547 (Viscount Simon).
Another provision that bears on this issue is s 29 which provides:
29.Limitation on power to make or amend supervision order
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.
The effect of s 29(3) is clear. It means that, in determining whether to make an interim supervision order, it is not necessary for the court to be satisfied that the offender will substantially comply with the standard conditions. The legislative conditions for making an interim supervision order are therefore not as stringent as those that apply in relation to a supervision order made following a restriction order application. The underlying legislative rationale for that position is no doubt because a person the subject of an interim supervision order has not been found to be a 'high risk serious offender'; a person on an interim supervision order is merely a person in relation to whom there are reasonable grounds for believing a court might make such an finding.
The inclusion of s 29(3), however, does provide further context supporting the conclusion that an interim supervision order would otherwise fall within the definition of 'supervision order'. Were it otherwise, s 29(3) would itself be surplusage.
Thus it is apparent that, whatever construction is reached in relation to this issue, it must be concluded that the Act includes surplusage. Either s 29(3) is superfluous or s 58(6) and the express inclusion of an interim supervision order in the definition of 'serious offender under restriction' are superfluous. There is no construction of the Act that will give all of the provisions of the Act a substantive operation.
There is one final provision, providing context to this issue of construction, which is particularly troubling: that is s 55 itself. To illustrate the point, it is only necessary to refer to s 55(1) which provides:
55.Court to make orders in certain cases
(1)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must –
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or
(c)except as provided in section 29, make an order affirming the supervision order without amendment or extension.
As can be seen, one of the orders that the Court may make under s 55 is a 'continuing detention order' (s55(1)(a)).
A continuing detention order is an order that an offender 'be detained in custody for an indefinite term for control, care, or treatment' (s 26).
If, as the State contends, an 'interim supervision order' is a 'supervision order', and therefore may be the subject of contravention proceedings under pt 4 div 5 of the Act, that would suggest that it would be open to the court, under s 55, to make a continuing detention order on the basis of a contravention of an interim supervision order alone.
That would be an extraordinary result. It would mean that the Act would authorise a continuing detention order (i.e. indefinite detention) of a person who has not been found to be a 'high risk serious offender' within the meaning of s 7 of the Act. It would suggest the possibility (at least) of the continuing detention of a person not on the basis that they are a high risk serious offender but that they might be a high risk serious offender.
That could not, in my view, be an outcome properly countenanced by the Act.
Indeed such an outcome would be inconsistent with the fundamental constitutional principles that support the validity of the Act and enable the making of a continuing detention order.
The constitutional validity of legislative schemes such as that created by the Act, were upheld by the High Court in Fardon v Attorney-General for the State of Queensland.[6] In so concluding, the Court referred to the importance of the statutory criteria for making continuing detention orders. Gummow J, for example, said:[7]
The requirements in s 13(3) [the equivalent of s 7 of the Act] respecting the cogency of acceptable evidence and the attainment by the Supreme Court of a high degree of probability are important in considering the validity of s 13, given the nature of the ultimate issue in a s 13 application for a continuing detention order. That is the existence of an unacceptable risk of commission of a 'serious sexual offence' as defined, if the 'prisoner' as defined is released from custody.
[6] Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 (Fardon).
[7] Fardon [97] (Gummow J; Hayne J agreeing). See also [19] (Gleeson CJ), [34] (McHugh J).

His Honour said later:[8]
[W]hat is vital for Pt 3, and thus to the validity of the Act, is the requirement that the regular 'review' does not, with the passage of time, become no more than a periodic formality; if the exercise in which the court was involved had been permitted by the legislation to lose its requirement for deeply serious consideration upon specified criteria and to a high degree of satisfaction, then invalidity of such legislation may well result.
[8] Fardon [113] (Gummow J; Hayne J agreeing).
Considerations of this kind indicate that, even if the State's submission on statutory construction can be accepted, it would be necessary, at least when applying s 55 to an interim supervision order, that it be construed so as to not authorise a continuing detention order contrary to these constitutional principles. In Fardon, for example, in relation to a discretion apparently conferred on the court to order continuing detention without psychiatric examinations, it was observed that it was 'almost unthinkable' that a court might make such an order in their absence.[9]
[9] Fardon [229] (Callinan & Heydon JJ).
So far, I have referred to matters of text, and the provisions of the Act read as a whole. As I have sought to explain, the textual considerations point in both directions as to whether or not an 'interim supervision order' is a 'supervision order' within the meaning of s 27(1) of the Act. It remains to consider the objectively discerned statutory purpose of the Act.
In Thiess v Collector of Customs,[10] the High Court said, in this regard:[11]
Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that 'the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated …) is to be preferred to each other interpretation' is in that respect a particular statutory reflection of a general systemic principle.
[10] Thiess v Collector of Customs (2014) 250 CLR 664.
[11] Thiess v Collector of Customs [23] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).
The Court went on to quote the American authority, Cabell v Markham:[12]
[I]t is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning
[12] Cabell v Markham (1945) 148 F (2d) 737, 739.
The statutory purposes and objects of the Act are clear. Its principal focus and purpose is the adequate protection of the community from serious offences. Section 8 of the Act provides that the objects of the Act are:
(a) to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b) to provide for continuing control, care or treatment of high risk serious offenders.
The Act is replete with references to the adequate protection of the community, including as the paramount consideration in relation to matters of discretion that arise under the Act.[13]
[13] See the Act, s 48(2), s 50(2)(b), s 52, s 55(3), s 57(6), s 58(2), s 68(2).
The capacity to make an interim supervision order under s 58 of the Act must be seen as part and parcel of the statutory objects of the Act to ensure adequate protection of the community (see in particular s 58(2)(c)).
Those statutory objects would potentially be defeated if, as is one possible construction of the Act, it was not possible to enforce compliance with an interim supervision order either by contravention proceedings under pt 4 div 5 of the Act or indeed by bringing charges under s 80 of the Act. It would have the result that s 58 would be a provision without any means of enforcement. It would confer a discretion to be exercised 'to ensure adequate protection of the community' (s 58(2)(c)), that was ultimately unable to achieve that end.
In those circumstances, in my view, notwithstanding that the textual markers point in both directions, consideration of the statutory purpose of the Act is sufficient to confirm that a construction of the Act whereby an 'interim supervision order' is a 'supervision order' within the meaning of s 27(1) is the construction that is to be preferred. That preferred construction gives s 27(1) its natural and ordinary meaning. A consequence of that construction is that s 58(6) and the express inclusion of an interim supervision order in the definition of 'serious offender under restriction' are strictly surplusage. Those provisions may be regarded as having been included in the Act out of an abundance of caution. Section 29(3) on the other hand is necessary to achieve the statutory purpose identified in [41] above.
I recognise that there are legitimate arguments militating against my preferred construction. Ultimately, however, in my view, to construe a 'supervision order' (in s 27) as including an 'interim supervision order' made under s 58, is the construction that best reflects the text of the statute considered in its context and objectively discerned statutory purpose. It is therefore, in my view, the construction that is to be preferred.
Part 4 div 5 of the Act therefore applies to the respondent's contravention of the interim supervision order. The warrant issued on 3 March 2021 was valid and my discretion under s 55 of the Act is enlivened.
This is not to say that there do not remain significant difficulties with the Act. The construction that I have reached does not resolve all of those problems. One of those problems, which I have already identified, is the fact that under s 55 the only options available to the Court in a contravention proceeding are:
(a)to rescind the supervision order and make a continuing detention order;
(b)to amend the conditions of the supervision order or extend it; or
(c)to affirm the supervision order without amendment or extension.
Section 55 might best be described as proceeding upon the assumption that, in most cases, it will be concerned with a supervision order that has been made following the completion of a restriction order application within the meaning of the Act. Certainly the options available make a good deal more sense in that context. Those options, as I have said, are not as easily applied in relation to an interim supervision order. In particular, for the reasons that I have given, the notion that a continuing detention order might be made on the basis of a contravention of an interim supervision order alone (where there has been no finding by the court that the person is a high risk serious offender) would appear inconsistent with the intention of the Act to ensure that the court will only make such an order following 'deeply serious consideration upon specified criteria and to a high degree of satisfaction'.[14]
[14] Fardon [113] (Gummow J; Hayne J agreeing).
Nevertheless, given my preferred construction of the Act, and given the acceptance by the respondent that he is in contravention of the interim supervision order, it falls to me to determine what order I should make under s 55(1) of the Act.

Application of s 55 in the present case

In all of the circumstances, I am positively satisfied that it would not be appropriate to rescind the supervision order and make a continuing detention order.
Indeed the State quite properly accepted that it would not be appropriate to make a continuing detention order under s 55(1)(a) of the Act on the basis of those contraventions.
The reasons for that conclusion may be briefly stated.
First, the respondent has not been the subject of a finding pursuant to s 7 of the Act that he is a high risk serious offender.
Secondly, the nature of the breaches in the present case are, in any event, not such as to authorise such a drastic response as a continuing detention order. It may be accepted that those contraventions were deliberate inasmuch as the respondent used prohibited drugs, namely cannabis and methylamphetamine. That conduct occurred, it was put to me and I accept, in the context of particular family pressures after the respondent had successfully observed the provisions of the supervision order for one month's time.
In addition, the breach of curfew, which was 13 minutes, may properly be described as a minor contravention of the interim supervision order.
Thirdly, none of the contraventions involved a serious offence within the meaning of the Act.
Fourthly, in light of the period of time in which the respondent spent in custody from 22 December 2020 until 2 March 2021 on the charges under s 80, I am satisfied that that period in detention would itself have provided a deterrent in relation to the continuing observance of the supervision order.
Finally, as I have impressed upon the respondent today, the successful completion of the interim supervision order pending the final determination of the restriction order application is a matter of particular relevance to the Court when it finally comes to determine the restriction order application. The respondent has a very real incentive to observe the conditions of the interim supervision order to the letter.
For these reasons I make the following order:
Pursuant to s 55(1)(c) of the High Risk Serious Offenders Act 2020 (WA), being satisfied on the balance of probabilities that the offender to whom the application relates has contravened the interim supervision order made by Allanson J on 10 November 2020, the interim supervision order is affirmed.
I will otherwise make orders in relation to the restriction order application itself, which I order be heard on 16 and 19 April 2021.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
5 MARCH 2021