The State of Western Australia v Williams

The appeal concerns a discrete issue of statutory construction concerning s 124E of the Sentencing Act 1995 (WA). Section 124E of the Sentencing Act, which was inserted by s 29 of the Family Violence Legislation Reform Act 2020 (WA), provides that a court convicting an offender of a 'family violence offence' 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. The State appeals from the learned primary judge's refusal to exercise the discretion conferred by s 124E of the Sentencing Act, contending 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. The Court concluded that, properly understood, 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. The effect of s 124E, and of a declaration that an offender is a serial family violence offender, properly understood, is wholly prospective. The appeal should be allowed and the matter remitted to the District Court, for that Court to consider the exercise of the discretion whether to make a declaration that the respondent is a serial family violence offender.