The State of Western Australia v Williams

[2022] WASCA 105

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WILLIAMS [2022] WASCA 105

CORAM:   QUINLAN CJ

MAZZA JA

VAUGHAN JA

HEARD:   14 JUNE 2022

DELIVERED          :   11 AUGUST 2022

FILE NO/S:   CACR 142 of 2021

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

ADRIAN CHARLES WILLIAMS

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STEWART DCJ

File Number            :   IND BRO 17 of 2021

Catchwords:

Criminal law – Appeal against refusal to make a declaration that offender is a serial family violence offender – FamilyViolence Legislation Reform Act 2020 (WA) – Whether declaration can be made following conviction for family violence offence committed prior to commencement of legislation – Whether legislation operates retrospectively – Statutory construction

Legislation:

Family Violence Legislation Reform Act 2020 (WA), s 29
Sentencing Act 1995 (WA), s 4, s 10, s 123, s 124E, s 124G

Result:

Leave to appeal granted
Appeal allowed
Matter remitted to consider whether to make declaration

Category:    B

Representation:

Counsel:

Appellant	:	L M Fox SC
Respondent	:	P N Bevilacqua

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Kaminni Kumar

Cases referred to in decision:

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568

Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513

Coleman v Shell Co of Australia (1943) 45 SR (NSW) 27

Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216

Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77

Re Section 46L of the Criminal Appeals Act 2004 (WA); Ex parte Commissioner of Police [2020] WASCA 210; (2020) 56 WAR 209

Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664

JUDGMENT OF THE COURT:

Introduction and overview

1. This appeal concerns a discrete issue of statutory construction concerning s 124E of the Sentencing Act 1995 (WA).

2. Section 124E was inserted into the Sentencing Act by s 29 of the FamilyViolence Legislation Reform Act 2020 (WA). It came into operation on 1 January 2021 (commencement date).

3. Relevantly, s 124E provides that a court convicting an offender of a 'family violence offence' (as defined by s 4 of the Sentencing Act) may declare the offender to be a 'serial family violence offender' if the offender has, on conviction, been convicted of at least three 'prescribed offences' with at least three of those prescribed offences having been committed on different days. A 'prescribed offence' includes a 'family violence offence'.

4. A 'family violence offence' relevantly includes an offence of criminal damage (contrary to s 444 of the Criminal Code) where the offender and the victim are in a designated family relationship at the time of the commission of the offence.

5. On 20 September 2021, the respondent, Adrian Charles Williams, was convicted, upon his pleas of guilty, of three offences arising from an incident involving his former partner (Ms C). The offences, which were committed on 14 November 2020, included one count of aggravated home burglary (contrary to s 401(2)(a) of the Criminal Code) and two counts of criminal damage (contrary to s 444(1)(b) of the Criminal Code). Mr Williams was sentenced for the offences on 24 September 2021.

6. At the time of his conviction for the 14 November 2020 offences, Mr Williams had 11 previous convictions for 'prescribed offences' involving Ms C. The State applied for a declaration that Mr Williams was a serial family violence offender.

7. The learned primary judge, Stewart DCJ, concluded that the discretion to declare Mr Williams to be a serial family violence offender had not been enlivened and declined to make such a declaration.

8. In essence her Honour concluded that, as a matter of statutory interpretation, s 124E of the Sentencing Act was only intended to apply to convictions for 'family violence offences' committed on or after the commencement date of s 124E (i.e. 1 January 2021). The 'family violence offence' for which Mr Williams was convicted and being sentenced by her Honour (criminal damage) had, of course, been committed prior to that date. It is apparent from the exchanges between her Honour and counsel that the learned primary judge concluded that to apply s 124E to 'family violence offences' committed prior to 1 January 2021 would involve giving the section an impermissibly retrospective operation.

9. Accordingly, her Honour sentenced Mr Williams to a total effective sentence of 3 years and 10 months imprisonment (with eligibility for parole), but refused the State's application to declare Mr Williams a 'serial family violence offender'.

10. The State appeals from the learned primary judge's refusal to exercise the discretion conferred by s 124E of the Sentencing Act.[1] It contends that her Honour erred in concluding that to construe s 124E as applying to convictions for 'family violence offences' committed prior to 1 January 2021 would infringe the presumption against the retrospective operation of statutes.

    [1] The State's right of appeal from an order (other than a sentence) that may be made upon conviction arises under s 24(1)(c) of the Criminal Appeals Act 2004 (WA). The Court's powers, in turn, are to be found in s 31(6) of the Criminal Appeals Act.

11. For the reasons set out below, the appeal should be allowed.

12. In summary, in our view, subject to the other conditions being met, s 124E of the Sentencing Act applies in circumstances in which a court 'convicts' an offender for a 'family violence offence' after the commencement date, regardless of when the 'family violence offence' was committed. In that context, the 'presumption' against giving statutes a retrospective operation, in truth, had no application. The effect of s 124E, and of a declaration that an offender is a serial family violence offender, properly understood, is wholly prospective.

13. The parties agreed that, in the event that the appeal was allowed, the matter should be remitted to the District Court, for that Court to consider the exercise of the discretion whether to make a declaration that Mr Williams is a serial family violence offender. We agree that that is the appropriate course. Section 124E of the Sentencing Act identifies a number of mandatory considerations relevant to the exercise of discretion and also enables the court to order assessment of the offender by an approved expert. Those are properly matters to be considered by the primary court: the District Court.

14. It is convenient to commence with the statutory provisions.

Statutory context

1. The FamilyViolence Legislation Reform Act introduced amendments to a number of statutes, including by inserting pt 17 div 3 of the Sentencing Act.

2. Part 17 of the Sentencing Act makes provision for orders and declarations not forming part of a sentence. In that regard, s 123, which was also amended by the FamilyViolence Legislation Reform Act, provides, in relation to pt 17 generally:

   123.General provisions

   (1)An order or declaration under this Part is in addition to and not part of the sentence imposed on an offender.

   (2)A sentence must not be reduced because an order or declaration is made under this Part.

   (3)A court that under Part 6 does not impose a sentence on an offender may nevertheless make an order or declaration under this Part.

   (4)Despite subsection (1) an offender may appeal against an order or declaration made under this Part as if it were part of the sentence imposed on him or her.

3. Part 17 div 3 of the Sentencing Act, in turn, provides:

   Division 3 – Declarations

   124D.Terms used

   In this Division –

   approved expert means a person, or a person of a class of persons, approved by the CEO (corrections) as having the appropriate qualifications, skills and experience to carry out assessments under section 124E;

   firearm has the meaning given in section 106(5);

   prescribed offence means –

   (a)a family violence offence; or

   (b)an offence against a law of the Commonwealth, of another State or of a Territory, or of a place outside Australia, if the act or acts constituting the offence would, if committed in the State, constitute a family violence offence; or

   (c)an attempt to commit such an offence under paragraph (a) or (b).

   124E.Serial family violence offenders

   (1)A court convicting an offender of a family violence offence may declare the offender to be a serial family violence offender if –

   (a)the offender has, on that conviction, been convicted of at least 2 prescribed offences which may only be tried on indictment, with at least 2 of those prescribed offences having been committed on different days; or

   (b)the offender has, on conviction, been convicted of at least 3 prescribed offences, with at least 3 of those prescribed offences having been committed on different days.

   (2)For the purposes of subsection (1) –

   (a)the victim of each offence may, but need not be, the same person; and

   (b)the offences need not be the same offences; and

   (c)the offences need not to have occurred in the State as long as 1 of them did; and

   (d)1 or more of the convictions may have been convictions by a court outside the State; and

   (e)it is immaterial in which order the offences were committed; and

   (f)an offence will not be taken into account if the offence was committed by a person who, at the time of the commission of the offence, was under 18 years of age; and

   (g)each of the offences taken into account must have been committed within a period of 10 years of each other unless the court is satisfied that exceptional circumstances exist that make it appropriate to make a declaration under this section (after taking into account the matters referred to in subsection (4) and such other matters as the court may consider to be relevant).

   (3)A declaration may be made by the court on its own initiative or on an application by the prosecutor.

   (4)Without limiting any other matter that a court dealing with an application under this section may consider to be relevant, the court must have regard to the following –

   (a)the level of risk that the offender may commit another family violence offence;

   (b)the offender's criminal record;

   (c)the nature of the prescribed offences for which the offender has been convicted.

   (5)In addition, the court may –

   (a)before it makes a declaration, order an assessment of the offender by an approved expert; and

   (b)take the report of that assessment into account when deciding whether to make the declaration.

   (6)In connection with the operation of subsection (5) –

   (a)an approved expert is authorised by this subsection to examine and assess the offender and to report in accordance with this section; and

   (b)the report may indicate –

   (i)the approved expert's assessment of the level of risk that the offender may commit another family violence offence; and

   (ii)the reasons for this assessment;

   and

   (c)in preparing the report, the approved expert may –

   (i)take into account any other information or report provided to, or obtained by, the approved expert; and

   (ii)include in the report any other assessment or opinion, or address any other matter, that the approved expert considers to be relevant in the circumstances;

   and

   (d)the approved expert may prepare the report even if the offender does not cooperate, or does not fully cooperate, in any examination associated with the assessment.

   124F.Serial family violence offender declaration – related matters

   (1)Section 124E does not limit the ability of a court to make a declaration in relation to the same person under section 97A.

   (2)Except as provided in subsections (5) and (6), the declaration of a person as a serial family violence offender will have effect for an indefinite period.

   (3)A person who is subject to a declaration may apply for the cancellation of the declaration if the declaration has been in effect for a period of at least 10 years.

   (4)An application may be made to any court of criminal jurisdiction unless the court is an inferior court to the court that made the declaration.

   (5)A court may cancel a declaration if satisfied that the declaration need no longer apply after taking into account the matters that would be taken into account by a court when considering whether to make a declaration under section 124E(1).

   (6)If a person is declared to be a serial family violence offender and the person's conviction for a prescribed offence taken into account for the purposes of making the declaration is set aside or quashed, the declaration ceases to be in force at the conclusion of the proceedings in which the conviction is set aside or quashed unless there are still at least 3 other prescribed offences, or 2 other prescribed offences which may be only be tried on indictment, that qualify for the making of a declaration under section 124E(1).

   124G.Disqualification if declaration made

   (1)If a court makes a declaration under this Division –

   (a)the serial family violence offender is disqualified from –

   (i)holding or obtaining a licence or permit, or an approval, for a firearm under the Firearms Act 1973; or

   (ii)holding or obtaining a licence, permit or authorisation to hold an explosive under the Dangerous Goods Safety Act 2004;

   and

   (b)by force of this section any relevant licence, permit, approval or authorisation in relation to which a disqualification applies under paragraph (a) is cancelled; and

   (c)the court must ensure that details of the declaration are made known to –

   (i)the Commissioner of Police; and

   (ii)the Chief Officer under the Dangerous Goods Safety Act 2004.

   (2)The court that makes a declaration under this Division may grant an exemption from the operation of subsection (1) if it is satisfied that exceptional circumstances exist in a particular case.

4. The FamilyViolence Legislation Reform Act inserted into s 4 of the Sentencing Act the following definitions relevant to the operation of pt 17 div 3:

   designated family relationship means a relationship between 2 persons –

   (a)who are, or were, married to each other; or

   (b)who are, or were, in a de facto relationship with each other; or

   (c)who have, or had, an intimate personal relationship with each other;

   …

   family violence offence means an offence where the offender and the victim are in a designated family relationship with each other at the time of the commission of the offence and the offence is –

   (a)an offence against the Restraining Orders Act 1997 section 61(1) or (1A); or

   (b)an offence against The Criminal Code section 221BD, 279, 280, 281, 283, 292, 293, 294, 297, 298, 300, 301, 304, 313, 317, 317A, 323, 324, 325, 326, 328, 332, 333, 338A, 338B, 338C, 338E or 444;

   serial family violence offender means a person who is a serial family violence offender under section 124E[.]

5. As is apparent from s 124G of the Sentencing Act, the effect of a declaration that an offender is a serial family violence offender includes disqualification from holding any licence, permit, approval or authorisation under the Firearms Act or the Dangerous Goods Safety Act and the cancellation of any such licence, permit, approval or authorisation. Those effects are subject to the court's power to grant an exemption in exceptional circumstances.

6. There are, in addition to this effect, a number of other consequences of the making of a declaration that an offender is a serial family violence offender.

7. Those consequences may be briefly summarised.

8. Where a serial family violence offender is in custody accused of, or awaiting sentence for, a further family violence offence, bail must be refused for the family violence offence unless the judicial officer is satisfied, inter alia, that there are exceptional circumstances as to why the accused should not be kept in custody.[2]

   [2] Bail Act 1982 (WA), Sch 1, pt C, cl 3F.

9. A court sentencing a serial family violence offender for a further family violence offence must consider whether to require electronic monitoring of the offender before making a pre‑sentence order,[3] community based order,[4] intensive supervision order[5] or an order for conditional suspended imprisonment.[6] Similarly, where a court is sentencing a serial family violence offender to a term of imprisonment for a family violence offence, the court must declare the offence to be a serious offence for the purposes of the High Risk Serious Offenders Act 2020 (WA) and pt 5A of the Sentence Administration Act 2003 (WA).[7] The latter provisions provide for the making of post‑sentence supervision orders by the Prisoners Review Board.

   [3] Sentencing Act, s 33HA.

   [4] Sentencing Act, s 67A.

   [5] Sentencing Act, s 76A(1A).

   [6] Sentencing Act, s 84CA(1A).

   [7] Sentencing Act, s 97A (3), (6) ‑ (7).

10. Finally, where the Prisoners Review Board is considering making a parole order,[8] a re‑entry release order[9] or post‑sentence supervision order[10] in relation to a serial family violence offender who has been serving imprisonment for a family violence offence, the Prisoners Review Board must give specific consideration to imposing conditions for the electronic monitoring of the offender.

    [8] Sentence Administration Act, s 30.

    [9] Sentence Administration Act, s 57.

    [10] Sentence Administration Act, s 74G.

Proceedings before the learned primary judge

1. By indictment dated 10 June 2021, Mr Williams was charged that, on 14 November 2020 at Cable Beach:[11]

   (a)while in Ms C's place without her consent he committed the offence of aggravated common assault, contrary to s 401(2)(a) of the Criminal Code (count 1);

   (b)he wilfully and unlawfully damaged a bedroom window, contrary to s 444(1)(b) of the Criminal Code (count 2);

   (c)he wilfully and unlawfully damaged a vehicle windscreen, contrary to s 444(1)(b) of the Criminal Code (count 3).

   [11] Indictment (BAB 1).

2. Mr Williams appeared before the learned primary judge on 20 September 2021 during a circuit sitting of the District Court in Broome, at which time he pleaded guilty to all of the charges on the indictment.[12]

   [12] Ts, 20 September 2021 (BAB 7 ‑ 8).

3. The facts of the offending were that Mr Williams attended at Ms C's home in the afternoon of 14 November 2020. The door was locked and Ms C refused to let Mr Williams inside and told him that she would telephone the police if he did not leave. Mr Williams broke the window of the front bedroom of the house (count 2). He climbed through the broken window to where Ms C was standing and, when she fled, Mr Williams pursued her through the house and struck her to the head with his fist (count 1). When confronted by other occupants of the house, Mr Williams left the house. As he did so, he threw a rock through the windshield of Ms C's car, which was parked in the driveway (count 3).[13]

   [13] Ts, 20 September 2021 (BAB 8 ‑ 9).

4. Prior to the hearing on 20 September 2021, the State filed submissions in support of an application for Mr Williams to be declared a serial family violence offender. Those submissions submitted that count 2 and count 3 were 'family violence offences' for the purposes of the opening words in the chapeau of s 124E(1) of the Sentencing Act.[14]

   [14] State's Outline of Submissions – Serial Family Violence Declaration dated 15 September 2021 [17] (BAB 80).

5. The State's submissions also identified 11 previous convictions for 'prescribed offences' within the meaning of s 124E(1)(b) of the Sentencing Act, all of which had been committed in the previous 10 years (see s 124E(2)(g)). Those offences were, in summary:[15]

   [15] State's Outline of Submissions – Serial Family Violence Declaration dated 15 September 2021 [21] (BAB 81 - 83).

Court	Result date	Offence	Offence date
1.	Broome Magistrates Court	9 November 2020	Breached a family violence restraining order: Restraining Orders Act 1997, s 61(1)	9 November 2020
2.	Kununurra Magistrates Court	12 October 2020	Breached a family violence restraining order: Restraining Orders Act 1997, s 61(1)	12 October 2020
3.	Broome Magistrates Court	24 September 2019	Unlawfully assaulted with circumstances of aggravation: Criminal Code (WA), s 313(1)(a)	17 May 2019
4.	Kununurra Magistrates Court	22 January 2015	Breach of violence restraining order: Restraining Orders Act 1997, s 61(1)	22 January 2015
5.	Kununurra Magistrates Court	22 January 2015	Unlawfully assault and thereby did bodily harm with circumstances of aggravation: Criminal Code (WA), s 317(1)B	22 January 2015
6.	Kununurra Magistrates Court	22 December 2014	Breach of violence restraining order: Restraining Orders Act 1997, s 61(1)	15 August 2014
7.	Kununurra Magistrates Court	22 December 2014	Breach of violence restraining order: Restraining Orders Act 1997, s 61(1)	15 August 2014
8.	Broome Magistrates Court	21 July 2014	Breach of violence restraining order: Restraining Orders Act 1997, s 61(1)	19 July 2014
9.	Broome Magistrates Court	12 April 2013	Unlawfully assault and thereby did bodily harm with circumstances of aggravation: Criminal Code (WA), s 317(1)B	26 February 2013
10.	Broome Magistrates Court	12 April 2013	Common assault in circumstances of aggravation or racial aggravation: Criminal Code (WA), s 313(1)(a)	7 December 2012
11.	Broome Magistrates Court	19 November 2012	Common assault in circumstances of aggravation or racial aggravation: Criminal Code (WA), s 313(1)(a)	27 October 2012

1. The victim of each of the previous prescribed offences was Ms C.

2. Prior to taking the pleas of guilty and entering convictions on 20 September 2021, the learned primary judge observed that she had not been provided with any submissions on Mr Williams' behalf as to the State's application for Mr Williams to be declared a serial family violence offender. Given the serious consequences for Mr Williams, her Honour sought submissions as to the applicability of the relevant provisions of the Sentencing Act and sought a report from a community corrections officer. The learned primary judge adjourned the matter until later in the circuit on 24 September 2021.

3. At the resumed hearing, her Honour accepted, as a matter of statutory construction, that the convictions for the 'prescribed offences' referred to in s 124E(1)(b) of the Sentencing Act could include offences that were committed prior to the commencement date. As her Honour observed, that was 'clear from the fact that you can go back ten years'.[16]

   [16] Ts, 24 September 2021 (BAB 22 - 23, 29 ‑ 30).

4. Nevertheless, her Honour proceeded upon the basis that, as the definition of 'family violence offence' only came into operation on 1 January 2021, it was necessary that what her Honour described as the 'fresh offence' (that is the family violence offences referred to in the chapeau of s 124E(1)) be committed after the commencement date.[17] Her Honour appears to have done so on the basis that the provision would otherwise operate retrospectively.[18] For that reason, her Honour stated that she was not going to make the declaration sought by the State.

   [17] Ts, 24 September 2021 (BAB 23).

   [18] Ts, 24 September 2021 (BAB 25 ‑ 29).

5. Beyond what may be discerned from her Honour's exchanges with counsel, the learned primary judge did not give reasons for her construction of s 124E(1). That is not a criticism of the learned primary judge. Far from it. Her Honour's reasoning is adequately exposed in the exchanges with counsel. Moreover, it is clear that the question as to the proper construction of s 124E(1) was one that arose in the course of a busy regional circuit, in relation to which her Honour sought assistance from the parties. In that regard, and without being critical of counsel, the submissions that they were able to prepare as to the proper construction of s 124E(1) in the time available did not address the relevant authorities in relation to the principles of statutory construction, particularly as they relate to 'retrospectivity', discussed below.

6. We turn to the ground of appeal.

Ground of appeal

1. The sole ground of appeal is in the following terms:

   The primary judge erred in law by failing to exercise the discretion conferred upon her by s 124E of the Sentencing Act 1995 to declare the respondent to be a serial family violence offender in circumstances where:

   (a)The primary judge was a 'court convicting an offender of a family violence offence' within the meaning of s 124E(l) of the Sentencing Act;

   (b)The primary judge erroneously concluded, in effect, that s 124E(l) of the Sentencing Act did not apply to the 'family violence offences' for which the respondent had been convicted because those offences occurred prior to the commencement of that statutory provision, and that to hold otherwise would infringe the presumption against the retrospective operation of statutes; and

   (c)The primary judge ought to have concluded that

   i.the application of s 124E of the Sentencing Act would not have resulted in the infringement of the presumption against retrospective operation of statutes;

   ii.the prerequisites prior offending in s 124E(l) and (2) had been established; and

   iii.the discretionary power in s 124E should have been exercised to declare the respondent to be a serial family violence offender.

2. As noted at [13] above, in its submissions the State did not seek to have this Court exercise the discretion in s 124E in the event that we concluded that the discretion was enlivened. To that extent, ground (c)(iii) was not pursued.

3. The appeal, rather, turns on the narrow question as to whether, on its proper construction, the phrase '[a] court convicting an offender of a family violence offence' in s 124E(1) includes a 'family violence offence' (as defined) that was committed prior the commencement date of that section.

4. In our view, it does. We turn to explain why.

The proper construction of s 124E of the Sentencing Act

1. The principles of statutory construction are well settled. Statutory construction involves attribution of meaning to statutory text. The Court's task in that regard must begin and end with the statutory text as a whole, considered in its context, including its objectively discerned statutory purpose.[19]

   [19] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] - [23] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).

2. The common law has, of course, developed rules of statutory construction as an aid in discovering the meaning of the statutory text. The 'presumption' against the retrospective operation of statutes, as it is sometimes described, is one such rule. According to that rule, save where the legislature makes its intention clear, a statute ought not to be given retrospective operation where to do so would be to attach new legal consequences to facts or events which occurred before its commencement.[20] As this Court observed in Christian Brothers v Lawrence, the rule fits within, not outside of, the general approach to statutory construction; it is not controlling but is part of the process of construction to be undertaken by the Court.[21]

   [20] Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 (Christian Brothers v Lawrence) [95] (Buss P, Murphy & Vaughan JJA).

   [21] Christian Brothers v Lawrence [98] (Buss P, Murphy & Vaughan JJA).

3. In applying the rule of construction in a particular case, it is necessary to approach the term 'retrospective' with some care. Interference with existing rights does not make a statute retrospective in the relevant sense. Many statutes affect existing rights prospectively. Rather, there is a retrospective operation if, and to the extent that, legislation operates to alter rights or liabilities which have already come into existence by operation of prior law on past events.[22]

   [22] Christian Brothers v Lawrence [104] (Buss P, Murphy & Vaughan JJA).

4. A distinction must therefore be drawn between legislation having a prior effect on past events and legislation basing future action on past events as explained by Jordan CJ in Coleman v Shell Co of Australia:[23]

   [A]s regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities.

   [23] Coleman v Shell Co of Australia (1943) 45 SR (NSW) 27, 31 (Jordan CJ; Davidson & Halse Rogers JJ agreeing); cited with approval in Christian Brothers v Lawrence [107] (Buss P, Murphy & Vaughan JJA).

5. Having regard to these principles, it can be seen that, properly understood, to construe the phrase '[a] court convicting an offender of a family violence offence' in s 124E(1) of the Sentencing Act to include a 'family violence offence' that was committed prior the commencement date of the section would not be giving the section a retrospective operation.

6. In the first place, s 124E, in and of itself, affects no existing rights at all, even prospectively. It does not, for example, by operation of the statute declare an offender convicted of a 'family violence offence' to be a 'serial family violence offender'. Rather, it confers upon a court a discretion to make such a declaration in certain circumstances. Unless the court exercises that discretion, s 124E has no effect at all.

7. In that context, of course, the immediate 'trigger' for the existence of the discretion is the 'convicting' of the offender by the court. The reference to the court 'convicting' the offender speaks prospectively; that is, it only applies to a 'conviction' occurring after the commencement of the section.

8. Secondly, as we will return to later, while the statutory preconditions necessary to enliven the court's discretion may include events that have occurred prior to the commencement of s 124E (as indeed the learned primary judge concluded in relation to the convictions for the prescribed offences referred to in s 124E(1)(a) and (b), that does not give the section a retrospective operation. On the contrary, in terms of the distinction explained by Jordan CJ in Coleman v Shell Co of Australia, the section treats those past events 'as governing the future operation of the matter … as regards the creation of further particular rights or liabilities'.

9. Thirdly, even in circumstances in which a court makes a declaration that an offender is a serial family violence offender, the consequences for the offender are prospective only; that is, such a declaration only affects the offender's rights in the future and, indeed, in most cases only where other future events occur.

10. For example, the effect on a serial family violence offender's eligibility for bail (see [22] above) will only arise if the offender is charged with another family violence offence. Necessarily, that effect only operates in relation to future proceedings for further offending.

11. Similarly, the requirement that courts sentencing serial family violence offenders for family violence offences must have regard to whether to require electronic monitoring or to declare such offences serious offences (see [23] above), only applies to future sentencing proceedings.

12. The obligation on the Prisoners Review Board to give consideration to conditions for electronic monitoring in relation to a serial family violence offender who has been serving imprisonment for a family violence offence (see [24] above) could, of course, readily apply to a term of imprisonment for the family violence offence that enlivened the discretion to declare the offender a serial family violence offender. Again, however, the effect of a declaration on the offender's future consideration for parole, or other post‑sentence order, involves no element of retrospectivity. Indeed, in Baker v The Queen, the High Court concluded that legislation potentially affecting parole eligibility for existing sentences fell within the second category identified by Jordan CJ in Coleman v Shell Co of Australia.[24]

    [24] Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 [30] (McHugh, Gummow, Hayne & Heydon JJ), see also [7] (Gleeson CJ).

13. Finally, on this point, the most immediate effect of a declaration that an offender is a serial family violence offender is, by force of s 124G, the disqualification from holding and the cancellation of, any licence, permit, approval or authorisation under the Firearms Act or the Dangerous Goods Safety Act (see [19] above). Even that effect, which occurs by force of the legislation, is prospective only; it does not make any such licence, permit, approval or authorisation invalid at any time in the past. It may also be observed that this particular immediate effect of a declaration that an offender is a serial family violence offender is the only effect that is subject to the court's discretion to grant an exemption; emphasising the future and generally contingent consequences of the declaration.

14. For these reasons, in our view, the 'presumption' against the retrospective operation of statutes has no role to play in the task of statutory construction in the present case.

15. Turning then to the text of the provisions themselves, there are a number of textual and contextual matters that compel the conclusion that the court's discretion in s 124E(1) will be enlivened in the case of '[a] court convicting an offender of a family violence offence' even where the relevant 'family violence offence' (which we will call the 'index' family violence offence) was committed prior to the commencement date.

16. First, as noted above, the 'trigger' for the existence of the discretion is the 'convicting' of the offender of the index family violence offence by the court. As a textual matter, it is clear that it is the date of 'conviction' that the legislature has identified, and chosen, as the 'event' upon which the court's power depends. This approach may be contrasted with provisions, such as those defining 'repeat offenders' in other contexts, where relevant offences are defined by reference to whether they were committed before or after the commencement day.[25] There is no reference in the opening words of s 124E to when the index family violence offence was committed.

    [25] See e.g. Criminal Code, s 401A.

17. Secondly, the definition of 'family violence offence' ([18] above) itself does not include any temporal component for the commission of the offence vis‑à‑vis the commencement date. The only temporal component of the definition is that the offender and victim must be in a designated family relationship 'at the time of the commission of the offence'. While Mr Williams' written submissions on appeal laid some stress on that temporal component,[26] counsel appearing at the hearing of the appeal, Mr Bevilacqua, readily accepted (in our view correctly) that the reference in the definition to the 'time of the commission of the offence' was attached to the designated family relationship rather than the legislative action by the Parliament.[27]

    [26] Respondent's Submissions [10] ‑ [11] (WAB 20 ‑ 21).

    [27] Appeal ts 19.

18. The definition of 'family violence offence' is therefore naturally capable of applying to an offence committed prior to the commencement date. In any event, definitions in a statute are not, except in rare cases, intended to enact substantive law. Their function is to aid in the construction of the substantive enactment that contains the defined term. The meaning of the definition depends on the context and object of the substantive enactment.[28]

    [28] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103] (McHugh J); Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 [12] (McHugh J); Re Section 46L of the Criminal Appeals Act 2004 (WA); Ex parte Commissioner of Police [2020] WASCA 210; (2020) 56 WAR 209 [73] (Buss P & Mazza JA).

19. In that regard, the context of the use of the definition of 'family violence offence', including as it is embedded within the definition of 'prescribed offence' in s 124D, makes unambiguously clear that it is intended to include offences meeting that definition that were committed prior to the commencement date. In particular, it is not only the index family violence offence for which the court is 'convicting' the offender to which the definition of 'family violence offence' must apply, but also the number of 'prescribed offences' required by s 124E(1)(a) or (b), as the case may be.

20. Those subsections require that the offender has been convicted of either two or more 'prescribed offences' triable only on indictment or three or more 'prescribed offences' (including those triable summarily). There was some debate at the hearing of the appeal as to whether, for the purposes of s 124E(1)(b), the three prescribed offences may include the index offence (as appears to be clear from the words 'on that conviction' in relation to the two prescribed offences referred to in s 124E(1)(a)). It is not necessary to resolve that issue in the present case, as Mr Williams had, at the date of his conviction for the index offence, 11 prior convictions meeting the definition of a 'family violence offence' and, therefore, 'prescribed offence'.

21. Significantly, in the context of the requirement for at least two or three 'prescribed offences' (as the case may be) in s 124E(1)(a) or (b), s 124E as a whole manifests a clear intention that the court may take into account offences committed prior to the commencement of the section. That intention is manifest, in particular, by s 124E(2)(g) which enables the court to take into account offences committed within a period of 10 years (and a longer period in exceptional circumstances). The period of 10 years, in effect, provides the 'relation back' period within which the previous offences must have been committed in order to enliven the discretion. It would be contrary to, and would denude, the object and purpose of the provision if that 'relation back' period could only be given its full effect 10 years after the commencement date.

22. In that context, the objectively determined statutory purpose of s 124E is clear from the provisions in relation to 'serial family violence offenders'. Those provisions, reflected in the mandatory considerations appearing in s 124E(4) and the consequences of making a declaration under the section, have a protective purpose. That is, the provisions are directed towards implementing measures designed to address 'the risk that the offender may commit another family violence offence'[29] and to ameliorate that risk.

    [29] Sentencing Act, s 124E(4)(a).

23. The protective nature of the power to make a declaration that an offender is a serial family violence offender is also made clear from the fact that, by s 123(1) of the Sentencing Act, such a declaration is not part of the sentence imposed on the offender. While a declaration may have adverse consequences for the offender, its purpose is not to punish the offender but to protect other persons from potential family violence offences in future. Section 123(1) is relevant in a further respect. It means that s 10 of the Sentencing Act (which provides that if the statutory penalty for an offence changes between the time when the offender committed it and the time when the offender is sentenced for it, the lesser statutory penalty applies for the purposes of sentencing the offender) does not apply to a declaration under s 124E. It supports the construction of s 124E that enlivens the discretion upon 'conviction' for a family violence offence, whenever it was committed (subject to the 'relation back' period).

1. As the learned primary judge recognised, the protective purpose of s 124E and the 10‑year 'relation back' period, compel the conclusion that the section was intended to apply to 'prescribed offences' committed prior to its commencement. Where we differ from her Honour is that, for that very reason, so too the section must be understood to apply where a court is convicting an offender for an index family violence offence committed prior to its commencement. There is no textual basis upon which a temporal distinction can be drawn between the definition of 'family violence offence' and 'prescribed offence' given that the former is embedded within the latter. The operation of the definition in each case must be the same.

2. For these reasons, in our view, on their proper construction, the words '[a] court convicting an offender of a family violence offence' in s 124E(1) include a 'family violence offence' that was committed prior the commencement date.

3. There was no dispute in the present case that Mr Williams' two convictions for criminal damage (contrary to s 444 of the Criminal Code) committed on 14 November 2020 were otherwise 'family violence offences' for the purposes of the opening words of s 124E(1). Nor was there any dispute that Mr Williams had the necessary convictions for 'prescribed offences' for the purposes of s 124E(1)(b). Accordingly, in our view, the learned primary judge erred in not considering whether to exercise the discretion in s 124E.

Conclusion

1. Leave to appeal should be granted on the sole ground of appeal and the appeal allowed.

2. In accordance with the parties' agreed position, the matter should be remitted to the District Court, for that Court to consider the exercise of the discretion whether to make a declaration that Mr Williams is a serial family violence offender. While it is a matter for the District Court, there is no reason why that issue could not be determined by the learned primary judge.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

LH

Principal Associate to the Honourable Chief Justice Quinlan

11 AUGUST 2022