TJD v The State of Western Australia
[2014] WASCA 10
•15 JANUARY 2014
TJD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 10
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 10 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:51/2013 | 6 NOVEMBER 2013 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 15/01/14 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | TJD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Dangerous sexual offender Proper construction of the Dangerous Sexual Offenders Act 2006 (WA) Continuing detention order made in contravention proceedings Whether leave required in appeals under s 34 of the Dangerous Sexual Offenders Act Whether matters in s 7(3) of the Dangerous Sexual Offenders Act are mandatory relevant considerations in deciding whether to impose a continuing detention order under s 23(1)(b) of the Dangerous Sexual Offenders Act |
Legislation: | Criminal Appeals Act 2004 (WA), s 23(1), s 27(1) Dangerous Sexual Offenders Act 2006 (WA), s 3(1), s 7, s 8(1), s 14, s 17, s 18, s 21, s 22, s 23, s 23A, s 25, s 29, s 30, s 32, s 33, s 34, s 35, s 36, s 37, s 40, s 40A, s 40B(4) Evidence Act 1906 (WA), s 106A |
Case References: | Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions (WA) v Brown [2012] WASCA 102 Director of Public Prosecutions (WA) v Brown [No 6] [2013] WASC 148 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 Director of Public Prosecutions (WA) v McGarry [No 2] [2009] WASC 287 Director of Public Prosecutions (WA) v TJD [2011] WASC 83 Director of Public Prosecutions (WA) v TJD [No 2] [2012] WASC 142 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 Director of Public Prosecutions (WA) v Williams [2012] WASCA 32 Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 House v The King [1936] HCA 40; (1936) 55 CLR 499 Italiano v The State of Western Australia [2009] WASCA 116 JSA v The State of Western Australia [2012] WASCA 25; (2012) 42 WAR 473 Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 The State of Western Australia v O'Rourke [2010] WASCA 141 Vagh v The State of Western Australia [2007] WASCA 17 Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TJD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 10 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : CORBOY J
Citation : DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- TJD [No 3] [2013] WASC 43
File No : MCS 2 of 2011
Catchwords:
Criminal law and procedure - Dangerous sexual offender - Proper construction of the Dangerous Sexual Offenders Act 2006 (WA) - Continuing detention order made in contravention proceedings - Whether leave required in appeals under s 34 of the Dangerous Sexual Offenders Act - Whether matters in s 7(3) of the Dangerous Sexual Offenders Act are mandatory relevant considerations in deciding whether to impose a continuing detention order under s 23(1)(b) of the Dangerous Sexual Offenders Act
Legislation:
Criminal Appeals Act 2004 (WA), s 23(1), s 27(1)
Dangerous Sexual Offenders Act 2006 (WA), s 3(1), s 7, s 8(1), s 14, s 17, s 18, s 21, s 22, s 23, s 23A, s 25, s 29, s 30, s 32, s 33, s 34, s 35, s 36, s 37, s 40, s 40A, s 40B(4)
Evidence Act 1906 (WA), s 106A
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr J C Whalley
Solicitors:
Appellant : Patti Chong Lawyer
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (WA) v Brown [2012] WASCA 102
Director of Public Prosecutions (WA) v Brown [No 6] [2013] WASC 148
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v McGarry [No 2] [2009] WASC 287
Director of Public Prosecutions (WA) v TJD [2011] WASC 83
Director of Public Prosecutions (WA) v TJD [No 2] [2012] WASC 142
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions (WA) v Williams [2012] WASCA 32
Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106
House v The King [1936] HCA 40; (1936) 55 CLR 499
Italiano v The State of Western Australia [2009] WASCA 116
JSA v The State of Western Australia [2012] WASCA 25; (2012) 42 WAR 473
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
The State of Western Australia v O'Rourke [2010] WASCA 141
Vagh v The State of Western Australia [2007] WASCA 17
Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217
1 McLURE P: The appellant appeals against the order made by Corboy J on 18 February 2013 under s 23(1)(b) of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) that the appellant be detained in custody for an indefinite term for control, care and treatment.
2 The primary issue in the appeal is whether the factors in s 7(3) of the DSO Act are mandatory relevant considerations in the exercise of the power in s 23(1)(b) of the DSO Act.
3 However, the first issue of statutory construction is whether the appellant requires leave to appeal.
Whether leave required
4 Part 4 of the DSO Act deals with appeals. Section 34 provides:
The DPP or a person in relation to whom the court makes a decision under this Act, other than this Part, may appeal to the Court of Appeal against the decision.
5 The effect, nature and powers of the Court of Appeal in an appeal under s 34 are dealt with in the DSO Act (s 35, s 36). There is no express provision in the DSO Act that the right of appeal under s 34 is subject to a grant of leave.
6 Proceedings under the DSO Act or an appeal under the DSO Act, are to be taken to be criminal proceedings for all purposes (s 40). The issue is whether s 27(1) of the Criminal Appeals Act 2004 (WA) (CA Act) applies to an appeal under s 34 of the DSO Act.
7 Part 3 of the CA Act deals with appeals to the Court of Appeal from the Supreme Court or the District Court. An offender convicted of an offence on indictment may appeal to the Court of Appeal against the conviction, the sentence imposed on the offender, any order made as a result of the conviction or the refusal to make an order that might be made as a result of the conviction: CA Act, s 23(1). However, s 27 of the CA Act relevantly provides:
(1) The leave of the Court of Appeal is required for each ground of appeal in an appeal under [Part 3].
(2) After an appeal is commenced, the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
(3) Unless the Court of Appeal gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
8 It is clear from the text, context and purpose of s 27 that it only applies to appeals under pt 3 of the CA Act. An appeal under the DSO Act is not such an appeal. Thus s 27 can only apply to an appeal under s 34 of the DSO Act if the DSO Act picks up and applies s 27 of the CA Act. Such a legislative intention is not discernible in the DSO Act. Having regard to the public interests in issue in proceedings under the DSO Act, including the serious incursions into fundamental rights and immunities authorised thereunder, I infer the legislature intended that appeals under s 34 of the DSO Act be unconditionally as of right. Accordingly, leave to appeal is not required.
The statutory framework - the DSO Act
9 The purpose of the DSO Act is to enable the post-sentence preventive detention or supervision of a person who has been convicted of, and is under sentence for, a serious sexual offence if they are found to pose a serious danger to the community. Such a person will be detained in custody for an indefinite term or be subject to a supervision order not for what they have done in the past, the penalty for which has been served, but for what they may do in the future.
10 The term 'serious danger to the community' is defined in s 3(1) to have the meaning given to that term in s 7. Section 7 of the DSO Act provides:
(1) Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -
(a) by acceptable and cogent evidence; and
(b) to a high degree of probability.
(3) In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b) any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d) whether or not there is any pattern of offending behaviour on the part of the person; and
(e) any efforts by the person to address the cause or causes of the person’s offending behaviour, including whether the person has participated in any rehabilitation program; and
(f) whether or not the person’s participation in any rehabilitation program has had a positive effect on the person; and
(g) the person’s antecedents and criminal record; and
(h) the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(i) the need to protect members of the community from that risk; and
(j) any other relevant matter.
12 Section 14 provides for a preliminary hearing. If at that hearing, the court is satisfied that there are reasonable grounds for believing that the court might find that the offender is a serious danger to the community, the court must fix a day for the hearing of the application for a 'Division 2 order', defined in s 3(1) as an order under s 17(1). If the court is so satisfied, it must order that the offender undergo examinations by two psychiatrists for the purpose of preparing reports that are to be used at the s 17(1) hearing (s 14(2)(a)).
13 Section 17 of the DSO Act provides:
(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -
(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
14 If the court makes a supervision order, there are conditions that must be imposed (s 18(1)) and may be imposed (s 18(2)).
15 Part 2 div 4 of the DSO Act deals with contraventions of a supervision order. A member of the police force or community corrections officer (CCO) who reasonably suspects that a person who is subject to a supervision order is likely to contravene, is contravening, or has contravened, a condition of the order may apply to a magistrate for the issue of a summons or warrant under s 21(2) (s 21(1)). If the magistrate is satisfied that there are reasonable grounds for the relevant suspicion, the magistrate has to issue a summons or warrant to appear or be brought before the Supreme Court (s 21(2)).
16 If a person appears before the Supreme Court under a summons or warrant issued under s 21, the DPP may apply to the court for an order under s 23 (s 22).
17 After an application is made under s 22 in relation to a person, the Supreme Court may order that the person undergo examination by one or more psychiatrists for the purpose of preparing a report required by s 37 (s 23A).
18 Section 23 provides:
(1) If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may -
(a) make an order amending the conditions of the supervision order and, if the court considers it appropriate in order to achieve compliance with the supervision order or necessary in order to ensure adequate protection of the community, make any other order; or
(b) if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, order that the person be detained in custody for an indefinite term for control, care, or treatment.
(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
19 A continuing detention order (defined to mean an order under s 17(1)(a) or an order under s 23(1)(b)) has effect in accordance with its terms from the time the order is made until rescinded by a further order of the Supreme Court under s 33 (s 25). See Director of Public Prosecutions (WA) v Brown [2012] WASCA 102 [57].
20 Part 3 of the DSO Act deals with annual reviews of a continuing detention order. The DPP must apply for a review as specified in s 29(2) and the offender may, with leave, apply for a review in certain circumstances (s 30). Unless the court otherwise orders, psychiatrists' reports must be prepared for such reviews (s 32).
21 Section 33 identifies the court's powers and duties on a review. It provides:
(1) When the court, on an application made under section 29 or 30, reviews a person’s detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2) The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(a) expressly decline to rescind the order; or
(b) rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3) In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
22 An order under s 33(2)(b) is (like an order under s 17(1)(b)) a 'supervision order' as defined in s 3(1). A person subject to a supervision order who, without reasonable excuse, contravenes a requirement of the order commits an offence (s 40A).
23 If proceedings on a charge of an offence under s 40A(1) against a person in relation to certain conduct, and proceedings commenced under pt 2 div 4 in respect of the person in relation to the same conduct, are in progress at the same time, the DPP must prosecute the charge in the Supreme Court and any findings of fact by the Supreme Court in the proceedings on the charge may be used in the proceedings under pt 2 div 4 (s 40B(4)).
Factual background
24 On 31 March 2011, Commissioner Sleight ordered that the appellant be detained in custody for an indefinite term for control, care and treatment under s 17(1)(a) of the DSO Act: Director of Public Prosecutions (WA) v TJD [2011] WASC 83. At the time the DPP applied for an order under s 17(1), the appellant was under sentence of imprisonment in relation to serious sexual offences as defined in the DSO Act. The power to make an order under s 17(1) was enlivened upon Commissioner Sleight's finding that the appellant was a 'serious danger to the community' as defined in s 7 of the DSO Act [49].
25 The first annual review under pt 3 of the DSO Act was conducted by McKechnie J on 23 April 2012. McKechnie J was satisfied that the appellant remained a serious danger to the community but concluded that the continuing detention order should be rescinded and that a supervision order should be imposed for a period of 10 years: Director of Public Prosecutions (WA) v TJD [No 2] [2012] WASC 142.
26 The supervision order made by McKechnie J on 23 April 2012 included conditions that the appellant was:
(a) to 'engage, including engage in one on one counselling, with any psychiatrist, psychologist, mentor, support service, support person and/or accommodation provider nominated by the CCO [Community Corrections Officer] as directed by the CCO' (condition 9);
(b) to 'undergo medical testing or treatment, including anti-libidinal treatment, as directed by the CCO in consultation with any doctor, psychiatrist or endocrinologist' (condition 11);
(c) not to 'possess, consume or use any illicit drugs or substances including, but not limited to, cannabis' (condition 28);
(d) to 'attend for, and submit to, urinalysis or other testing for illicit drugs or substances as directed by the CCO or by a police officer' (condition 29);
(e) not to have 'contact with any child under the age of 17 years, whether such contact is in person, in writing, by telephone or by electronic means, unless the contact is authorised either by a Court Order or in advance by the CCO, such contact being supervised at all times by an adult approved in advance by the CCO' (condition 31);
(f) to 'provide details of any contact with a child under the age of 17 years both to his CCO and to police upon the next occasion he reports to that person or agency' (condition 33);
(g) to 'maintain a daily diary of his movements and activities and present the diary to the CCO or a police officer upon request' (condition 40).
27 The appellant was charged with offences under s 40A(1) of the DSO Act relating to contraventions of conditions 31 and 33 of the supervision order in early July 2012. The appellant pleaded guilty to those charges and was sentenced on 14 August 2012 to a global fine of $1,500.
28 The DPP applied on 5 October 2012 for an order under s 23 of the DSO Act that the appellant be detained in custody for an indefinite term for control care or treatment; alternatively, that the supervision order be amended in such terms as the court thought fit (the pt 2 div 4 proceedings).
29 On 30 October 2012 the appellant was charged with five further offences under s 40A(1) of the DSO Act. The charges alleged that the appellant, being subject to a supervision order and without reasonable excuse, contravened a requirement of that order by:
(a) failing to undergo anti-libidinal medical treatment, as directed by a CCO, in consultation with a doctor (charge 1);
(b) failing to engage in one on one counselling with a psychologist, as directed by a CCO (charge 2);
(c) failing to attend for urinalysis testing for illicit drugs, as directed by a CCO (charge 3);
(d) using an illicit drug, namely Tetrahydrocannabinol (cannabis) (charge 4);
(e) failing to maintain a daily diary and present it to a CCO upon request (charge 5).
30 The period specified for each offence was 23 April to 5 October 2012. The appellant pleaded guilty to charges 1, 3 and 4 and not guilty to charges 2 and 5.
31 Concurrently with the pt 2 div 4 proceedings, the primary judge determined whether the prosecution had established beyond reasonable doubt the conduct the subject of charges 2 and 5. He found the appellant not guilty of charge 2 [59] and guilty of charge 5 [63].
32 The evidence in support of charge 2 included a treatment progress report dated 24 October 2012 prepared by David Summerton, a psychologist with the dangerous sexual offenders psychology team within the Department of Corrective Services. Mr Summerton was first involved in counselling the appellant in 1996 when the appellant participated in an intensive sex offender programme while in prison. He had also been involved in counselling the appellant since his release from prison on supervision. Mr Summerton gave evidence before the primary judge.
33 The primary judge noted in his reasons for decision that the appellant had admitted that he remained a serious danger to the community and the only question to be determined was whether an order should be made under s 23(1)(a) or (1)(b) [84].
34 The primary judge made the following findings. Within a relatively short period after the supervision order was made, the appellant had ceased taking his anti-libidinal medication and had lied about the matter when challenged [85]. The appellant gave an explanation to police that he was unable to afford the medication and had, in the hearing of the charges brought against him, initially intended to suggest that his testosterone levels had been elevated in September 2012 because of illness rather than non-compliance with the requirement to take anti-libidinal medication as directed. The primary judge said:
Those matters demonstrated a lack of insight by [the appellant] into his offending and the reasons for his offending that was, in my view, significant for assessing the risk of him committing a serious sexual offence if an order was not made under s 23(1)(b) [85].
35 The primary judge also accepted the report of Mr Summerton, which he said demonstrated that there had been a significant change in the appellant's participation in counselling, which also suggested that he lacked insight into the causes of his offending and the need for him to actively and continuously take steps to minimise the risk of reoffending [86]. The primary judge continued:
I accept that the counselling relationship between Mr Summerton and [the appellant] has broken down. There may be cases in which it is possible to conclude that a fresh counselling relationship might be established with an offender who is the subject of a supervision order without the risk of the offender committing a serious sexual offence being magnified. However, I do not think that this is so in this instance. I consider that Mr Summerton's report indicates that it is necessary for [the appellant] to establish a fresh counselling relationship and to demonstrate a commitment to and understanding of the need for counselling before consideration should be given to him being released back into the community. That is so regardless of why the counselling relationship between Mr Summerton and [the appellant] had deteriorated.
Mr Summerton expressed the view that there was little more that could be done by way of intervention to ameliorate the risk of [the appellant] reoffending while he remained in custody. With respect, that appears to overlook the breakdown in his counselling relationship with [the appellant] and the evidence that was apparently accepted by McKechnie J that [the appellant] had been able to meaningfully engage in counselling in a way that impacted on the risk of him reoffending. It would appear, therefore, that it may be possible for [the appellant] to establish a new counselling relationship while in custody that will reduce the risk of him reoffending if he is released back into the community.
I have concluded that the risk of [the appellant] committing a serious sexual offence if an order was [not] made under s 23(1)(b) is unacceptable and that an order should be made under that paragraph for the continuing detention of [the appellant] for care, custody and treatment having regard to the need to protect the community. In reaching that conclusion, I have also taken into account and accept the opinion expressed by Mr Summerton in his report concerning the 'elevated' risk of [the appellant] reoffending as a consequence of the matters to which he referred in his report. I do not consider that a proposal by [the appellant] to have his compliance with condition 11 of the present supervision order [monitored] by a pharmacist offers sufficient protection to the community in all the circumstances [87] - [89].
36 Mr Summerton's opinion referred to by the primary judge in [89] is based on the appellant's dishonest and deceitful self-reporting [30], his hostility towards a number of people in his life and his difficulty in controlling his emotions when under stress [73].
Grounds of appeal
37 The appellant's grounds of appeal are in the following terms:
1. The sentencing discretion miscarried when [the primary judge] determined to order [the appellant's] continued detention.
Particulars
1.1 [the primary judge] failed to adequately consider the cause and effect of the breakdown of the relationship between Mr Summerton and [the appellant];
1.2 The evidence was equivocal as to whether there were further interventions available to [the appellant] within a prison environment that would better prepare him for life in the community;
1.3 it was open to [the primary judge] to conclude, and he should have so found, that a fresh counselling relationship might be established with an offender who is the subject of a supervision order without the risk of the offender committing a serious sexual offence being magnified.
2. [The primary judge] erred when he failed to adequately consider all of the relevant factors in s 7(3) of the [DSO Act] in assessing whether the appellant was a serious danger to the community.
Particulars
2.1 [the primary judge] failed to consider s 7(3)(d) of the [DSO Act];
2.2 [the primary judge] failed to consider s 7(3)(g) of the [DSO Act].
3. [The primary judge] erred in failing to consider the likelihood of an offence being committed and the nature of the offence likely to be committed in determining whether a detention order was necessary in the interests of the community.
38 Ground of appeal 2 assumes that the factors in s 7(3) must be taken into account under s 23(1)(b) of the DSO Act. I start with that issue.
Section 23(1)(b) and s 7(3)
39 Section 7 defines the statutory expression 'serious danger to the community' which is used in s 14, s 17 and s 33 but is not used in s 23 of the DSO Act. An understanding of the scope and purpose of s 17, s 23 and s 33 is required. Section 14 relates to interlocutory matters and can be put to one side.
40 A positive finding that an offender is a serious danger to the community is a condition precedent that enlivens the power of the court to make either a continuing detention order or a supervision order under s 17(1). A positive finding that an offender remains a serious danger to the community is a condition precedent that enlivens the court's power to rescind an existing continuing detention order and impose in its stead a supervision order following a review under s 33(2).
41 The absence of a positive finding that the offender is a serious danger to the community in a review under s 33 mandates rescission of the continuing detention order (s 33(1)).
42 Under s 7(1), a positive finding of objective fact that a person is a serious danger to the community is itself conditioned on the court being satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
43 An issue relating to the proper construction of s 7(1) is whether a finding that a person is a serious danger to the community is mandated if the court is satisfied that there is an unacceptable risk that, absent a continuing detention order or a supervision order, the person would commit a serious sexual offence. The question is whether the word 'may' in the opening line of s 7(1) is used, not to enliven a discretion, but to confer a power which must be exercised upon the court being satisfied that there was an unacceptable risk of the relevant kind. As Windeyer J said in Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106:
This does not depend on the abstract meaning of the word 'may' but [on] whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events the 'may' becomes a 'must' (134 - 135).
44 Having regard to the range of offences falling within the definition of 'serious sexual offence' (which has the meaning given to that term in s 106A of the Evidence Act 1906 (WA)) and the very great variations in the seriousness of the circumstances of sexual offending, there is much to be said for the contention that the word 'may' does not mean 'must' so that the court's satisfaction that there is an unacceptable risk does not mandate a finding that a person is a serious danger to the community. However, that contention is inconsistent with unchallenged authority of this court: Director of Public Prosecutions (WA) v Williams (2007) 35 WAR 297 [66]; Director of Public Prosecutions (WA) v GTR (2008) 38 WAR 307 [21].
45 Either way, s 7(2) must be construed to mean that the DPP has the onus of satisfying the court by acceptable and cogent evidence and to a high degree of probability of the fact that a person is a serious danger to the community. However, the matters to which the court must have regard in s 7(3) inform both the subjective element (the court's satisfaction of unacceptable risk) and the necessary objective finding of fact that a person is a serious danger to the community applying the statutory standard of proof.
46 This court has also determined that satisfaction of the condition enlivening the power in s 17(1) (a positive finding that the offender is a danger to the community) does not enliven a discretion to refuse to make any order under s 17(1), the discretion being confined to the choice of order to be made, be it a continuing detention order or a supervision order: Director of Public Prosecutions (WA) v Williams (2007) 35 WAR 297; Director of Public Prosecutions (WA) v GTR. It is clear from the Act as a whole that a continuing detention order is a more draconian outcome than a supervision order: Director of Public Prosecutions (WA) v Williams [2012] WASCA 32 [11].
47 The scope and purpose of s 23 differs from the scope and purpose of s 17(1) and s 33(2) of the DSO Act. The power in s 23 is based on an existing, standing, positive finding that a person is a serious danger to the community which underpins the validity of the supervision order. There is no power, express or implied, to review the finding that the offender is a serious danger to the community in an application under s 22 of the DSO Act. As to the approach to construing the DSO Act, see Director of Public Prosecutions (WA) v Williams [2012] WASCA 32; The State of Western Australia v O'Rourke [2010] WASCA 141.
48 The conditions that enliven the powers in pars (a) and (b) of s 23(1) differ. The condition common to both pars (a) and (b) is the satisfaction of the court, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order. The power in s 23(1)(a) contemplates the continuation of the supervision order; that power does not extend to rescinding or setting aside the supervision order.
49 Section 23(1)(b) requires that a second condition be satisfied in order to enliven the power to impose a continuing detention order, which must be in lieu of and in substitution for the supervision order. The second condition is that the court be satisfied that there is an unacceptable risk that, if a continuing detention order were not made, the person would commit a serious sexual offence. This second condition differs in two respects from the meaning of 'serious danger to the community'. First, under s 7(1) there must be a positive, objective finding of fact by the court that the offender is a serious danger to the community. The second condition in s 23(1)(b) is a subjective test requiring only that the court be satisfied (no doubt on reasonable grounds) that there is a relevant unacceptable risk. Second, a positive finding that an offender is a serious danger to the community enlivens the power to make either a continuing detention order or a supervision order in s 17(1). A positive finding that a person remains a serious danger to the community empowers the court under s 33(2) to either retain the continuing detention order or step down to a supervision order. By contrast, the second condition in s 23(1)(b) enlivens the power and, by parity of the reasoning in DPP v Williams and DPP v GTR, the duty, to step up from a supervision order to a continuing detention order.
50 In summary, the second condition enlivening the power in s 23(1)(b) is materially different from the condition enlivening the powers in s 17(1) or s 33(2) in two respects. First, the power in s 23(1)(b) is based and builds on the existence of a pre-existing standing finding (frequently made by a different judge) that the offender is a serious danger to the community. The power in s 17 to make a continuing detention order or a supervision order is only enlivened if the judge determining the s 8 application has considered and made a positive finding of fact that the offender is a serious danger to the community. The power in s 33(2) is only enlivened if the judge undertaking the review has considered and made a positive finding that the offender remains a serious danger to the community.
51 Second, satisfaction of the second condition in s 23(1)(b) leads to only one possible outcome, the making of a continuing detention order. A finding that an offender is or remains a serious danger to the community enlivens a choice of options under s 17(1) and s 33(2).
52 I have also considered whether all the matters in s 7(3) could apply to the court's assessment of the risk for the purpose of s 23(1)(b). A paragraph that is in terms inapplicable to s 23(1)(b) is the matter in par (h) of s 7(3), which refers to the 'risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence'. That is appropriate when the finding that a person is a serious danger to the community enlivens the power to choose between a continuing detention order or a supervision order, as in s 17(1) and s 33(2). It is inconsistent with the structure of s 23(1)(b) which has an additional condition precedent enlivening the power that leads to only one possible outcome.
53 It is also relevant to consider whether the standard of proof of the second condition in s 23(1)(b) is the balance of probabilities or the standard provided for in s 7(2) of the Act. As to the latter, see JSA v The State of Western Australia (2012) 42 WAR 473 [56]. There is a conflict of authority in this court on that issue. In Director of Public Prosecutions (WA) v McGarry [No 2] [2009] WASC 287, Jenkins J stated:
The proper construction of s 23 also requires that in deciding whether there is such an unacceptable risk I must apply the standard of proof to the higher degree of probability which applies to an application for an order under the DSO Act s 17. That is, in order to discharge the onus to satisfy the court that there is an unacceptable risk that, if an indefinite detention order is not made, Mr McGarry would commit a serious sexual offence, the DPP must produce acceptable and cogent evidence which satisfies me of this matter to a high degree of probability [60].
54 However, in Director of Public Prosecutions (WA) v Brown [No 6] [2013] WASC 148, McKechnie J held that the satisfaction required in s 23(1)(b) is satisfaction on the balance of probabilities and that the standard of a high degree of probability required under s 7(2) had no application beyond s 7 [84] - [87].
55 The respondent's position is that the matters in s 7(3) are not mandatory relevant considerations in assessing the risk under s 23(1)(b) but that the standard of proof in s 7(2) applies to that task. That is an uncomfortable straddle.
56 The judge who imposed the supervision order the subject of a s 22 application, either initially or on annual review, must have found that the offender was a serious danger to the community and accepted that the relevant unacceptable risk could be sufficiently reduced by the lesser of the two options, a supervision order.
57 The question for the judge hearing an application under s 22 of the Act is not whether an offender is a serious danger to the community. That has been established. The question for the judge in this case was whether, being satisfied on the balance of probabilities that the appellant had contravened conditions of his supervision order, he was also satisfied that there was an unacceptable risk that if a continuing detention order was not made, the appellant would commit a serious sexual offence. If so, the only option was a continuing detention order.
58 As the standard of proof in s 7(2) applies only to the condition enlivening the power in s 17(1), not the choice of option (continuing detention order or a supervision order), there is no reason in principle why the s 7(2) standard would apply to s 23(1)(b) of the DSO Act. As the s 7(2) standard does not apply, the civil standard of proof on the balance of probabilities applying Briginshaw v Briginshaw (1938) 60 CLR 336, 362 must apply.
59 I turn now to the central issue for determination which is whether the s 7(3) matters are mandatory relevant considerations for the purpose of determining the second condition in s 23(1)(b). In my view the answer is no. For the reasons already given, s 7 applies only to those provisions of the DSO Act requiring the court to make a finding that an offender is or remains a serious danger to the community.
60 There being an existing standing finding that an offender is a serious danger to the community, which finding is not reviewable in a s 22 application, the focus of attention must necessarily be on events and circumstances arising after the supervision order was made. That includes any additional psychiatric or other expert evidence obtained for the purpose of the s 22 application. It is also the case that the judge hearing the s 22 application would need to have regard to the matters on which the court relied in making the relevant previous decision(s) under the DSO Act relating to the offender. However, that does not mandate de novo consideration of the source material addressing the s 7(3) matters. That information can be obtained by reading the decisions that resulted in the making of the original order under s 17 and any subsequent review decisions. Whether or not it is necessary in a particular case to have regard to any source material on which earlier decisions are made will depend upon the circumstances of the case. However, the matters in s 7(3) are not mandatory relevant considerations by force of the DSO Act itself.
Ground 2
61 It is clear from the reasons of the primary judge that in making his determination under s 23(1)(b) he had regard to all relevant considerations, including the reasons for decision of Commissioner Sleight and McKechnie J, which together addressed all of the matters in s 7(3) of the DSO Act. I would dismiss ground 2.
Ground 1
62 The task of the court under s 23(1)(b) of the DSO Act is evaluative, involving questions of judgment and degree on which minds may reasonably differ. The task is analogous to the exercise of a discretionary power to which the principles in House v The King (1936) 55 CLR 499, 504 - 505 apply. Accordingly, the appellant must establish that the primary judge made an express or implied material error of law or fact.
63 An allegation that the primary judge gave inadequate, or too much, weight to a relevant consideration falling short of a failure to exercise the discretion does not give rise to an appealable error: Mallet v Mallet (1984) 156 CLR 605, 614; Dinsdale v The Queen (2000) 202 CLR 321, 330; Vagh v The State of Western Australia [2007] WASCA 17 [76].
64 The appellant places much reliance on the primary judge's reference to the evidence-in-chief of Mr Summerton that he was not certain whether there were further interventions available to the appellant within a prison environment that would better prepare him for life in the community [75]. As the primary judge makes clear in his reasons at [88] (set out above), he did not accept Mr Summerton's view on that point. The primary judge regarded the significant change in the appellant's participation in counselling as reflecting a lack of insight into the causes of his offending and the need for him to actively and continuously take steps to minimise the risk of reoffending. It was that lack of insight, also demonstrated by his decision to cease taking his anti-libidinal medication, that weighed very heavily in the primary judge's satisfaction that there was an unacceptable risk that if a continuing detention order was not made, the offender would commit a serious sexual offence. In my respectful opinion, that was the only reasonable conclusion available on all the material before the primary judge. There is no merit in ground 1.
Ground 3
65 Ground 3 is without merit. It is clear from the primary judge's reasons that he expressly considered the risk of the appellant committing a serious sexual offence if a continuing detention order was not made. Section 23(1)(b) does not require the risk assessment to relate to a particular offence or type of offence within the statutory definition of 'serious sexual offence'.
Conclusion
66 I would dismiss the appeal.
67 BUSS JA: I agree with McLure P that the appeal should be dismissed. Subject to the following comments, I agree generally with her Honour's reasons.
The word 'may' in s 7(1) of the Dangerous Sexual Offenders Act 2006 (WA)
68 In Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, Wheeler JA (Le Miere AJA agreeing) held that if (as she understood to be the case) the words 'unacceptable risk' in s 7(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) are referring to a risk which is 'unacceptable having regard to the serious consequences of making such a finding', it was 'difficult to imagine what further matters the court would need to consider in determining whether the person was a serious danger to the community' [66]. Her Honour suggested that, in using the expression 'serious danger to the community', in addition to the expression 'unacceptable risk', in s 7(1) of the Act, Parliament was merely emphasising the very serious nature of the finding with which the court was concerned. Her Honour was of the view that, once the court had found an 'unacceptable risk', in the sense she described, the finding of 'serious danger to the community' within s 7(1) inevitably followed [66].
69 In Director of Public Prosecutions(WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [14]- [24], Steytler P and I considered whether there was any relevant distinction between a finding that a person is a 'serious danger to the community', on the one hand, and a finding that there is an 'unacceptable risk' that, if the person is not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence, on the other, within s 7(1) of the Act. We concluded that the view expressed on that issue by Wheeler JA in Williams was preferable and correct, and should be applied [25]. See also Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217 [12] - [13] (Steytler P & Buss JA).
70 The view expressed by Wheeler JA in Williams in relation to s 7(1) of the Act was also accepted as correct by Murray AJA in GTR [94] and in Woods [168]. Further, Wheeler JA's view on this point was accepted as correct by Pullin JA in Italiano v The State of Western Australia [2009] WASCA 116 [2].
71 There is little to be said for the contention that the word 'may' in s 7(1) of the Act does not mean 'must' so that the court's satisfaction that there is an 'unacceptable risk' does not mandate a finding that a person is a 'serious danger to the community'.
The word 'may' in s 17(1) of the Act
72 In GTR, Steytler P and I also referred to Williams in relation to the effect of the word 'may' in s 17(1) of the Act. Wheeler JA (Le Miere AJA agreeing) said in Williams that, read in its context, 'may' in s 17(1) is to be understood as 'must' [68]. That is, if the court has made a finding that a person is a 'serious danger to the community' within s 7(1), then s 17(1) requires the court to make either a continuing detention order or a supervision order. The court does not have a discretion under s 17(1) to make no order at all.
73 In GTR, after considering the relevant statutory framework and various authorities, Steytler P and I concluded that there was nothing in the reasoning of Wheeler JA in Williams that should lead us to conclude that her Honour's view as to the proper construction of s 17(1) of the Act was plainly wrong, or that it should, for some other reason, not be followed. Steytler P and I consequently applied it. See GTR [35] - [49]. See also our reasons in Woods [154] - [155].
74 In GTR [125] and in Woods [204], Murray AJA agreed with the view expressed by Wheeler JA in Williams in relation to the effect of the word 'may' in s 17(1) of the Act.
75 MAZZA JA: I agree with McLure P.
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