Turner v State of New South Wales

[2019] NSWCA 164

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Turner v State of New South Wales [2019] NSWCA 164
Hearing dates:	18 June 2019
Date of orders:	18 June 2019
Decision date:	05 July 2019
Before:	Bathurst CJ at [1]; Basten JA at [2]; Payne JA at [50]
Decision:	(1)   Grant the applicant leave to appeal from interim detention orders made in the Common Law Division on 21 May 2019 and 27 May 2019.  (2)   Dismiss the appeal.
Catchwords:	HIGH RISK OFFENDER – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – interim detention order – whether offender must be in lawful custody when interim detention order made – whether offender must be in lawful custody when an interim detention order is renewed   STATUTORY INTERPRETATION – implied limitation on powers of superior court – purposive interpretation not supportive of limitation – effect of earlier precedent inconsistent with implied limitation – subsequent amendments leaving unchanged provisions the subject of earlier judicial determination
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW), ss 5C, 13A, 13B, 15, 17, 18, 18A, 18C Criminal Code 1995 (Cth), s 105A.9; Divs 104, 105 Criminal Law (High Risk Offenders) Act 2015 (SA), s 18 Law Enforcement and Other Legislation Amendment Act 2007 (No 97) (NSW), Sch 3 [9], [17] Mental Health (Forensic Provisions) Act 1990 (NSW), s 55 Mental Health Act 2007 (NSW), s 19 Sentencing Act 1997 (Tas), Pt 3, Div 3 Serious Sex Offender (Detention and Supervision Order) Act 2009 (Vic), s 51 Terrorism (High Risk Offenders) Act 2017 (NSW), s 41 Serious Offenders Act 2018 (Vic), s 76 Crimes (Serious Sex Offenders) Act 2006 (NSW), ss 14, 14A, 16
Cases Cited:	Attorney General for New South Wales v Tillman [2007] NSWCA 119 Attorney-General (Qld) v Watego [2003] QCA 512; 142 A Crim R 537 Minogue v Victoria [2018] HCA 27; 92 ALJR 668 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248; [2018] HCA 4 State of New South Wales v Craig Anthony Turner (Preliminary) [2019] NSWSC 282 State of New South Wales v CT [2019] NSWSC 695 State of New South Wales v Haouchar [2018] NSWSC 979 State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
Texts Cited:	T Tulich, “Post-Sentence Preventive Detention and Extended Supervision of High Risk Offenders in New South Wales” (2015) 38(2) UNSWLJ 823
Category:	Principal judgment
Parties:	Craig Anthony Turner (Appellant) State of New South Wales (Respondent)
Representation:	Counsel: M Robinson SC / M Fernando (Appellant) J Emmett / R Pietriche (Respondent)   Solicitors: Legal Aid Commission of NSW (Appellant) Crown Solicitor for NSW (Respondent)
File Number(s):	2019/183662
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2019] NSWSC 695 (Hamill J) Date of Decision: 21 May 2019, 27 May 2019 Before: N Adams J; Hamill J File Number(s): 2019/37393

Judgment

1. BATHURST CJ: For the reasons given by Basten JA and Payne JA, I joined in the orders made at the completion of the hearing of these proceedings on 18 June 2019

2. BASTEN JA: There is pending in the Common Law Division an application by the State under the Crimes (High Risk Offenders) Act 2006 (NSW) (“High Risk Offenders Act”) for a continuing detention order (CDO) in relation to the appellant, Craig Anthony Turner. Those proceedings were commenced on 4 February 2019, whilst the appellant was in custody serving the balance of a sentence which expired on 31 March 2019.

3. On 21 March 2019, before the appellant’s sentence had expired, Bellew J made an interim detention order (IDO) for a period of 28 days. [1] That order commenced at the expiration of the sentence and expired on 28 April 2019.

   1. State of New South Wales v Craig Anthony Turner (Preliminary) [2019] NSWSC 282.

4. There was, for a period, confusion as to whether the IDO was in operation during April, or whether its effect was suspended because the defendant was detained in a psychiatric hospital under s 19 of the Mental Health Act 2007 (NSW). Following an examination by two psychiatrists, who formed the view that he was mentally ill, on 26 March 2019 he was transferred to Long Bay Prison Hospital. However, it is now accepted by the State that the transfer was made pursuant to s 55 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and he was not detained under the provisions of the Mental Health Act. Accordingly, following completion of his sentence, he was a voluntary patient and not in “lawful custody” for the purposes of s 18C(1A) of the High Risk Offenders Act whilst in Long Bay Prison Hospital, after 31 March 2019, so as to suspend the operation of the order.

5. It followed that the interim detention order made by Bellew J expired on 28 April 2019.

6. On 20 May 2019 the State filed a notice of motion seeking renewal of the expired interim order. On 21 May, N Adams J made the order sought for a period of six days, expiring on 27 May 2019. On 27 May, Hamill J made a further interim order for a period of 27 days, expiring on 23 June 2019. [2] The State sought a further interim order and a hearing of the application for final relief was fixed for 19 June 2019.

   2. State of New South Wales v CT [2019] NSWSC 695.

7. The appellant sought leave to appeal from the orders of N Adams J and Hamill J on the basis that no IDO could be made if he were not in “custody” at the date of either order. At the completion of the hearing on 18 June 2019, orders were made granting leave to appeal but dismissing the appeal. Reasons were reserved.

Issues in dispute

8. The primary issue before this Court was whether the appellant should be granted leave to appeal from the orders of N Adams J and Hamill J on the basis that no IDO could be made if he were not a “detained offender” for the purposes of s 5C(b) of the High Risk Offenders Act at the date of the order. It was also submitted that the order made by N Adams J was to “renew” the previous IDO, which had expired some three weeks earlier; each course was said to create an hiatus which was not consistent with the structure of the legislative scheme.

9. There may well be practical reasons why the continuation of existing custody would be sought by the State, without any period during which a person said to be an unacceptable risk to the public was at large. However, the present issue is whether an IDO can only be made whilst the person sought to be the subject of the order is in custody. As there appeared to be a view that that is the case, it was appropriate to grant leave to the appellant to pursue that ground of challenge to the current orders.

10. Two further questions arose in the course of the hearings below. First, with respect to the hearing before N Adams J, the State submitted that, whether or not it was necessary for a person to be in lawful custody at the date an IDO was first made, there was no such requirement with respect to the renewal of such an order. The second issue arose in relation to the subsequent hearing before Hamill J on 27 May 2019. Hamill J held that he had jurisdiction because the order made by N Adams J was valid until set aside; accordingly the appellant was, at the time of the further order by Hamill J, in lawful custody pursuant to the order made by N Adams J. [3]

    3. Ibid at [12]; see State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32].

11. Neither of these questions arise if it is not necessary for the person to be in lawful custody when an interim detention order is made or renewed.

12. The State raised a further issue by way of a foreshadowed application for leave to cross-appeal, seeking an order that the IDO granted on 21 May 2019 be back-dated to commence at the expiration of the earlier IDO, namely on 28 April 2019. That period would fall a day short of the period fixed by N Adams J, ending on 26 May 2019, not 27 May 2019. Accordingly, a further order was sought seeking a back-date of the order made by Hamill J on 27 May 2019 to the previous day. For reasons noted below, it will not be necessary to deal with the proposed cross-appeal. Nevertheless it may doubted whether the Court has the power to make orders back-dating a detention order if the effect is to validate a period of detention. Such an order could remove a cause of action for unlawful detention and would appear to be inconsistent with s 18 (set out below), which identifies the period of operation of an IDO.

Legislative scheme

13. In February 2019 when the summons was filed in this matter, provision for continuing detention orders was made in s 5C of the High Risk Offenders Act, which reads as follows: [4]

5C   Making of continuing detention orders—unacceptable risk

The Supreme Court may make an order for the continued detention of a person (a continuing detention order) if:

(a)   the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a detained offender or supervised offender (within the meaning of section 13B), and

(c) an application for the order is made in accordance with section 13B, and

(d)   the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.

4.    The Summons incorrectly referred to s 5D(1), which had been repealed.

14. For the power to make a CDO to be engaged, it was necessary for each limb of s 5C to be satisfied. The present case turned on satisfaction of s 5C(a); however, it is necessary to consider the scheme created by pars (a)-(c) as a whole, including the operation of s 13B.

15. The conferral of power for the State to apply for a CDO is found in s 13A. Provisions relating to the application appear in s 13B, relevantly for present purposes, in the following terms:

13B   Application for continuing detention order

(1)   An application for a continuing detention order may be made only in respect of:

(a)   a detained offender, or

(b)   a supervised offender.

(2)   A detained offender is an offender who, when the application for a continuing detention order is made, is in custody (referred to in this Part as the offender’s current custody):

(a)   while serving a sentence of imprisonment:

(i)   for a serious offence, or

(ii)   for an offence of a sexual nature, or

(iii)   for an offence under section 12, or

(iv)   for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment (whether under a law of this State or another Australian jurisdiction) referred to in subparagraph (i), (ii) or (iii), or

(b)   under an existing continuing detention order, emergency detention order or interim detention order.

(3)   An application for a continuing detention order in respect of a detained offender may not be made more than 9 months before:

(a)   the end of the offender’s total sentence, or

(b)   the expiry of the existing continuing detention order,

as appropriate.

(4)    A supervised offender is an offender who, when the application for a continuing detention order is made, is an offender in lawful custody or under supervision:

(a)   under an extended supervision order or an interim supervision order who:

(i)   has been found guilty of an offence under section 12 in respect of that order, or

(ii)    because of altered circumstances, poses an unacceptable risk of committing a serious offence if the continuing detention order is not made, or

(b)   whose obligations under an extended supervision order or an interim supervision order have been suspended, or

(c) under an interim detention order.

(5)   An application in respect of a supervised offender who is serving a sentence of imprisonment may not be made more than 9 months before the end of the person’s total sentence.

(6)    The Supreme Court must not make a continuing detention order on an application referred to in subsection (4)(a)(ii) unless it is satisfied that circumstances have altered since the making of the extended supervision order or interim supervision order and those altered circumstances mean that there is an unacceptable risk of the offender committing a serious offence if the continuing detention order is not made.

(7)    Without limiting the matters that the Supreme Court may take into account for the purposes of subsection (6), it may take into account the failure to comply, or an allegation that the supervised offender has failed to comply, with any requirement of an extended supervision order or interim supervision order.

16. It follows from the terms of s 13B(1) and (2) that the person to be the subject of the order must be in custody serving a sentence of imprisonment at the time the application is made for a CDO. That condition was satisfied in the present case. (The appellant was not a supervised offender, but the subs (4)-(7) are relevant to a construction issue addressed below.)

17. The Act sets out pre-trial procedures which are to be followed with respect to an application for a CDO. [5] Orders were made by Bellew J on 4 April 2019 appointing qualified psychiatrists and directing an examination of the offender.

    5. High Risk Offenders Act, s 15.

18. Section 17 of the High Risk Offenders Act sets out the orders which the Supreme Court may make and the matters which it must have regard to in determining whether or not to make a CDO. The term of a CDO is provided for in s 18:

18   Term of continuing detention order

(1)   A continuing detention order:

(a)   commences when it is made, or when the offender’s current custody expires, whichever is the later, and

(b)   expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order.

(1A) Despite subsection (1), a continuing detention order made on application under this Part in respect of a supervised offender (within the meaning of section 13B(4)) who is not in custody commences when it is made and expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order.

(2)   An offender’s custody under a continuing detention order is suspended while the offender is in lawful custody under any other Act or law, but that suspension does not affect the expiry date of the order.

(3)   Nothing in this section prevents the Supreme Court from making a second or subsequent continuing detention order against the same offender.

19. It is clear from s 18(1)(a) that a CDO may be made either before or after the offender’s “current custody” expires. As noted in s 13B(2), the term “current custody” refers to the custody which the person was serving when the application was made. Section 18(1A) was introduced in 2007 with a new s 14A permitting an application for a CDO where an extended supervision order had been breached. [6] Importantly, s 18(1) has never been amended.

    6. Law Enforcement and Other Legislation Amendment Act 2007 (NSW), Sch 3 [9], [17].

20. The Act makes provision for IDOs in s 18A:

18A   Interim detention order

The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court:

(a)   that the offender’s current custody (if any) will expire before the proceedings are determined, and

(b)   that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order.

21. There is further provision for the commencement and expiration of an IDO:

18C   Term of interim detention order

(1)   An interim detention order in respect of an offender commences on the day fixed in the order for its commencement (or, if no such day is fixed, as soon as it is made) and expires:

(a)   at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order, or

(b)   if the order is suspended for any period—the period specified in paragraph (a) plus each period during which the order is suspended, or

(c)   on the commencement of an extended supervision order made in respect of the offender.

(1A)   An offender’s custody under an interim detention order is suspended during any period the offender is in lawful custody, whether under this or any other Act or law.

(2)   An interim detention order may be renewed from time to time, but not so as to provide for the detention of the offender under such an order for periods totalling more than 3 months.

22. In the present matter, the first IDO was that made by Bellew J on 21 March 2019. Bellew J ordered that it commence on 31 March 2019, being the expiration of the offender’s current custody. [7] However, if no such date had been fixed, it would have commenced on the day it was made (21 March 2019), but would not have operated during the period of the sentence, by reason of s 18C(1A).

    7. [2019] NSWSC 282 at [91].

Order of renewal

23. The appellant did not submit that the power to make an IDO may not be exercised from time to time, as the circumstances arose. However, the appellant submitted that the making of a further order constituted a renewal within the terms of s 18C(2). Were it otherwise, there would be no limit on the number of IDOs which could be made, or the period for which they could extend, thus avoiding the cap of three months provided by s 18C(2).

24. That submission should be accepted; there is no ready alternative mechanism for giving effect to the cap.

25. Nevertheless, it was necessary for the appellant to establish that a renewal can only occur in circumstances where there will be no hiatus between the earlier IDO and the renewed IDO. There is no express condition to that effect. For reasons explained below, that restriction is also not to be implied from the statutory scheme.

26. Legislative policy would not support an implication that there can be no hiatus between IDOs. As explained in Attorney General for New South Wales v Tillman [8] the power to make an IDO is truly a discretionary power; there is no duty to make an order in circumstances where the two preconditions are satisfied. Furthermore, it is clearly a matter for the State as to whether it will, in particular circumstances, pursue an IDO or not. Applications under the High Risk Offenders Act frequently (as in this case) seek both a CDO and an extended supervision order. Until the offender has been examined by the appointed psychologists or psychiatrists, there may be doubt as to the level of risk which he or she poses to the community, and hence the appropriate order. Indeed, because the State must produce supporting documentation which, if proved, would justify the making of the appropriate interim order, there may well be a period during which it is not clear what sort of order, if any, should be sought. It is not necessarily in the interests of the offender that the State should be compelled to seek an IDO prior to release from custody, in circumstances where further inquiries may suggest an interim supervision order might have sufficed.

    8. [2007] NSWCA 119 at [30]-[42] (Mason P, Santow and Tobias JJA).

27. In any event, if an IDO may be made in circumstances where the person is no long subject to lawful custody, it would need clear language to demonstrate that a second or further IDO could not be made after an earlier IDO had terminated. In effect, that would require the imposition of a condition that an IDO must not only be applied for, but be made, during a period of custody. As will be explained below, that proposition is inconsistent with the scheme for final orders.

Person not in custody

28. It is convenient therefore to turn to the broader question, namely whether an IDO can only be made with respect to a person who is in lawful custody.

29. Although there are cases considering IDOs which refer to the need to avoid an “hiatus” in detention, there is nothing in the statutory scheme which requires that the person be in lawful custody when either an IDO or CDO is made. Section 18A(a) envisages that the person may be in “current custody” (that is, custody under a sentence being served when the application for a CDO was made) at the time the Court is considering making an IDO, but that will not necessarily be the case. Subject to relevant procedural steps being taken, the only precondition to the making of an IDO is that there are proceedings on foot seeking a CDO. There is no express condition requiring that the person be in current custody when the IDO is made, nor is there any basis for such a condition to be implied.

28. This conclusion is consistent with the decision of this Court in Tillman. The Court in Tillman was dealing with an earlier form of the High Risk Offenders Act, namely the Crimes (Serious Sex Offenders) Act 2006 (NSW). However, the relevant provisions were substantially in the same terms as in the current legislation. The application for a CDO was to be made whilst the person was serving a sentence of imprisonment or otherwise was in custody pursuant to an earlier CDO: s 14(1). The application was required to be made during the last six months of the offender’s current custody: s 14(2). The provision for IDOs was in similar terms to the current s 18C, but did not refer to the current custody “(if any)”: s 16(1)(a). Nevertheless, the Court held:

“[83]   The applications for final orders were not defective by reason of having been filed only seven days before the respondent was due to be released from custody upon the expiry of a lengthy sentence of imprisonment. Service was effected within the narrow time-frame imposed by ss 7(1) and 15(1).

[84]   The Act contemplates a preliminary hearing conducted by the Supreme Court within 28 days after the application is filed or within such further time as the Supreme Court may allow (ss 7(3), 15(3)). This occurred in the proceedings before Hoeben J on 16 April.

[85]   There is, however, no temporal mandate as to when the Court should hear and determine an application for an interim order, including a renewed application, other than that this will take place in the pending proceedings for ‘final’ relief.”

31. A contrary argument could be formulated, based on the first requirement for an IDO, namely that the court be satisfied that the offender’s current custody will expire before the proceedings are determined, which could not be satisfied if the current custody had already expired. Accordingly, one of the two preconditions to the power to make an IDO must be missing in such a case and the power is therefore not engaged. While that may have an attraction as a literal reading of the provision, it faces two countervailing considerations. First, unlike the precondition to making a CDO, there is no requirement that an application for an IDO be made whilst the offender is in current custody; on the other hand, it was common ground in this Court that there was no precondition to the making of a CDO after current custody had terminated and even if the offender were not then in detention. Without the temporal constraint on making an application for an IDO, there is less basis to imply a temporal constraint on the making of an IDO than for a CDO. In any event, a CDO is not limited to cases of prior detention, but extends to prior supervision.

32. Secondly, a purposive construction does not require unbroken detention. The purpose of the orders which may be made under the Act is to protect the community from unacceptable risks of further serious offending. It is not necessary for that purpose, absent any express provision, that the period of further detention must be continuous and unbroken. The legislative scheme interposes the need to obtain a court order before any period of continuing detention or supervision takes effect. If an unbroken period of detention were intended, a different scheme might have been enacted. [9]

    9. Cf Criminal Law (High Risk Offenders) Act 2015 (SA), s 18(1), which allows the Parole Board to order detention for breach of a supervision order, pending a hearing before the Supreme Court; Sentencing Act 1997 (Tas), Pt 3, Div 3 “Dangerous Criminals”.

33. The reasoning in Tillman set out above was a necessary part of the decision. The proceedings were commenced on 11 April 2007; the offender was due to be released on 18 April 2007. [10] On 17 April 2007 Hoeben J made an interim extended supervision order. That order was overturned by this Court on 3 May 2007, substituting an IDO. [11] Accordingly, the offender was no longer in current custody at the time of this Court’s order. It was not submitted that Tillman was clearly wrong or should not be followed.

    10.    Tillman at [48] and [51].

    11. Tillman at [1].

34. Since Tillman was determined in May 2007, the Act has been expanded, but the principle identified in the passage extracted above remains good. [12] There are two further matters of statutory interpretation which are consistent with the conclusion reached above, although they do not provide significant independent support for it.

    12. Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248; [2018] HCA 4 at [52].

35. First, when Tillman was decided the provision equivalent to s 18A included the same two factors which must appear to the Court under the present provision, except that par (a) did not contain the words in parenthesis, “if any”. The ordinary reading of the current provision envisages that, whilst the final orders must be sought during the period of current custody, current custody may already have expired before an IDO is made. That flows from the words “if any”. However, those words were inserted by way of an amendment consequential upon an expansion of the concept of “current custody”. In 2007, s 14(1) of the Act defined “current custody” as the serving of a sentence of imprisonment for a serious sex offence or offence of a sexual nature, or pursuant to an existing continuing detention order. Amending legislation, which commenced on 21 December 2007, inserted a new s 14A which permitted an application for a CDO to be made with respect to a person found guilty of the offence of breaching an extended supervision order. Section 14A(4) provided that application might be made for a CDO “whether or not the person is in custody.”[13] A further amendment, described in the accompany explanatory note as merely a “consequential” amendment, inserted the words “(if any)” in s 16(1)(a) after the word “custody”. The appropriate inference is that those words were inserted for the particular purpose of dealing with a person against whom a CDO was sought on the basis of a breach of an extended supervision order.

    13. Fn 6 above, Sch 3 [9].

36. That history may diminish the significance of the language of s 18A(a); it does not affect the wording of s 18(1)(a) which has never been amended. Section 18(1)(a) expressly envisages that a CDO may be made after the person’s “current custody” expires. As originally enacted the definition of “current custody” included custody pursuant to the sentence for the relevant offence and custody under a CDO:

14   Application for continuing detention order

(1)   The Attorney General may apply to the Supreme Court for a continuing detention order against a sex offender who, when the application is made, is in custody in a correctional centre:

(a)   while serving a sentence of imprisonment by way of full-time detention:

(i)   for a serious sex offence, or

(ii)   for an offence of a sexual nature, or

(b)    pursuant to an existing continuing detention order,

referred to in this Part as his or her current custody.

37. One further consideration, noted above, is that an application for a CDO pursuant to s 13B may be made only in respect of a detained offender or a supervised offender. A supervised offender may be in lawful custody, or may be under supervision, either having been found guilty of a breach offence or simply “because of altered circumstances, [he or she] poses an unacceptable risk of committing a serious offence if the continuing detention order is not made”: s 13B(4)(a)(ii). (Perhaps curiously, a supervised offender may simply be an offender who is subject to an IDO[14] who will also be a detained offender. [15] ) In any event, it is clear that a CDO may be made with respect to a person who is not in custody; it is no longer necessary that the application for a CDO be made in respect of someone in lawful custody; it suffices that the person be under supervision.

    14. Section 13B(4)(c).

    15. Section 13B(2)(b).

38. In short, these amendments do nothing to remove or qualify the conclusion in Tillman that there is no temporal mandate limiting the power of the court to hear and determine an application for an interim order, including a renewed order, except that proceedings for final relief be pending. If there can be lack of continuity between the custody required for the making of an application for final relief, and an IDO, there is no reason why there may not be lack of continuity between two IDOs.

39. It follows that, even if the appellant were not in custody when N Adams J made an IDO on 21 May 2019, that order was valid. Accordingly, the order made by Hamill J on 27 May 2019 was also valid. The appeal must be dismissed.

Inconsistent authority

40. The appellant relied upon the decision in State of New South Wales v Haouchar [16] as authority for a contrary conclusion to that reached above. The original application for a CDO in that case had been filed on 7 November 2014, in anticipation of the offender completing his then sentence for the offence of manslaughter. However, there were outstanding charges of murder and attempted murder, which did not come before the courts until 13 June 2018. The offender entered pleas to lesser offences and, given a period of some 3.5 years in custody after completing his earlier sentence, he was released on a bond on 15 June 2018. The application for an IDO did not come before the judge in the Common Law Division until 25 June 2018. The judge delivered reasons two days later, dismissing the application on the basis that he had no jurisdiction to make an interim order, either by way of continuing detention or extended supervision, once the defendant had been released from custody. There were several steps in the reasoning to that conclusion.

    16. [2018] NSWSC 979 (Button J).

41. First, the judge addressed the language of s 18A(a):

“[30] … I consider that the phrase ‘current custody (if any)’ in s 18A(a) is intended to ensure that an IDO can be made against a person who is not and was not subject to ‘current custody’, because he or she is not and was not a ‘detained offender’, but who was, at the time of commencement of the proceedings, a supervised offender, as defined by s 13B of the Act.”

42. With respect to supervision orders, the judge further concluded:

“[33] Furthermore, I believe that the contrast between the precise text of s 18A and s 10A of the Act … supports my interpretation that the purpose of the phrase ‘(if any)’ in s 18A(a) is to ensure that supervised offenders (as defined s 13B) can be the subject of an IDO.”

43. The judge further supported that conclusion by reference to the principle of statutory construction that statutes that curtail liberty should be construed strictly, referring to Minogue v Victoria. [17]

    17. [2018] HCA 27; 92 ALJR 668; in Haouchar at [36].

44. The judge then dealt with a submission that there was no “temporal fetter” upon the making of a CDO under s 17 and that it would, therefore, “be absurd to impose, by way of construction of s 18A, such a fetter with regard to the lesser curtailment of liberty by way of the making of an IDO”. [18] The judge rejected that reading of s 17 on the following basis:

“[40] It is perfectly true that there is no explicit fetter to be found in s 17 of the kind that I consider is to be found in s 18A of the Act. But in my opinion, there is an undoubted fetter to be found in all of those sections of the Act that precede s 17 within Part 3, commencing with s 13A and concluding with s 15.

[41] In my opinion, read in that context, s 17 of the Act evinces no intention on the part of Parliament to deprive persons of liberty by way of the imposition of a CDO, unless they are, at the time of its imposition, subject to a period of deprivation or diminution of liberty by way of one or more of the forms of either or both enumerated in s 13B of the Act.”

18. Haouchar at [39].

45. There was an element of inconsistency between the proposition that a CDO could be made if at the time of its imposition there was some diminution of liberty, and an earlier statement that the Court was not empowered “to deprive (by a CDO or IDO) or diminish (by an ESO or ISO) the liberty of citizens months or years after the focus of deprivation or diminution of liberty, which permitted an application to be made pursuant to the Act in the first place, has come to an end.”[19] The more modulated objection was necessary, given that an application for a CDO could be made with respect to a person under supervision only, and not in detention. In any event, the constraint on the making of a CDO at a time after the person’s current custody expires is expressly envisaged by s 18(1)(a), set out at [18] above. Similarly, the Act expressly envisages that a CDO may be made with respect to a supervised offender who is not in custody: s 18(1A). It was, therefore, necessary to address the apparent incoherence of permitting a CDO to be made with respect to a person not in custody, but finding a constraint on making an IDO in that circumstance.

    19. Haouchar at [32].

46. The other arguments relied upon have been addressed above and need not be reconsidered. The judge correctly identified the statutory purpose of the introduction of the words “if any” in s 18A(a); however, even absent that phrase, Tillman came to a different conclusion. Importantly, it is apparent that the judge’s attention was not drawn to the decision of this Court in Tillman and the reasoning inconsistent with the conclusion he reached. It follows that Haouchar was wrongly decided.

Other jurisdictions

47. There is equivalent legislation in several jurisdictions of Australia, including the Commonwealth,[20] Queensland,[21] Victoria,[22] Western Australia,[23] Northern Territory[24] and South Australia. [25] Only the cognate New South Wales Act, Terrorism (High Risk Offenders) Act 2017 (NSW), has a provision in similar terms to s 18A (s 41), although the Criminal Code (Cth) is reasonably similar (s 105A.9(2)). The temporal limitation in the Queensland legislation turns on the definition of “prisoner”[26] and the Victorian legislation expressly provides that an interim order may be made “even if … the offender has ceased to be an eligible offender because the custodial sentence has been served or has expired”: s 76(5). [27] To the extent that these regimes do not contain a requirement for continuity of supervision or detention, they provide some limited support in illustrating how the purpose of protecting the community from prospective offending may operate. [28]

    20. Criminal Code 1995 (Cth), Divs 104-105A.

    21. Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

    22. Serious Offenders Act 2018 (Vic).

    23. Dangerous Sexual Offenders Act 2006 (WA).

    24. Serious Sex Offenders Act 2013 (NT).

    25. Criminal Law (High Risk Offenders) Act 2015 (SA).

    26. Attorney-General (Qld) v Watego [2003] QCA 512; 142 A Crim R 537 at [14] (McPherson and Davies JJA and Mullins J).

    27. See also earlier legislation, Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic), s 51.

    28.    For further history, see T Tulich, “Post-Sentence Preventive Detention and Extended Supervision of High Risk Offenders in New South Wales” (2015) 38(2) UNSWLJ 823.

Conclusions

48. For these reasons, orders were made at the completion of the hearing on 18 June 2019 granting leave to appeal and dismissing the appeal. Costs were not sought.

49. No order was required with respect to the proposed cross-appeal on the basis that no document had been filed.

50. PAYNE JA: I have read the decision of Basten JA in draft. I agree with his Honour’s reasons which reflect my reasons for joining in the orders made by the Court on 18 June 2019.

51. In addition, I would emphasise, as his Honour explains by reference to Tillman, that the making of an interim detention order under s 18A of the Crimes (High Risk Offenders) Act involves the exercise of a true discretion. It may be, in a particular case that the absence of any lawful prior restraint upon an offender will be highly relevant to that discretionary determination.

52. For example, if an offender has not been subject to any lawful restraint for a lengthy period prior to the application for an interim detention order (or a renewal of an order) being made, that fact may be highly relevant in the discretionary determination whether to make an interim detention order. Such a period may also be relevant in deciding whether to make a continuing detention order under s 17 of the Crimes (High Risk Offenders) Act.

53. For the reasons given by Basten JA, however, assuming that the jurisdictional precondition in s 13B of the Crimes (High Risk Offenders) Act is satisfied, an interim detention order can be made or renewed in respect of a person who is not in lawful custody.

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Endnotes

Decision last updated: 05 July 2019