State of New South Wales v Hamze

1. [1]

   BELL CJ: I agree with Kirk JA.

2. [2]

   WARD P: I agree with Kirk JA.

3. [3]

   KIRK JA: The State of New South Wales applied to the Supreme Court seeking that an extended supervision order (ESO) be made with respect to Wesam Hamze, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The primary judge, Yehia J, rejected the application: State of New South Wales v Hamze (Final) [2025] NSWSC 6 (FJ). The State has appealed, exercising its right to do so under s 22 of the Act.

4. [4]

   An ESO provides for post-sentence supervision of a “supervised offender” by requiring them to comply with conditions specified in the order of the kind authorised by s 11 of the Act. To obtain such an order in this case it was necessary for the State to establish that the respondent had served a sentence of imprisonment for a “serious violence offence” as defined in s 5A(1) of the Act. The offence on which it relied – labelled the “index offence” – was discharging a firearm or other loaded arms with intent to cause grievous bodily harm (GBH) contrary to s 33A(1) of the Crimes Act 1900 (NSW). In her final judgment the primary judge held that that offence did not fall within the definition of serious violence offence in s 5A(1) and thus concluded that the Court’s jurisdiction to make an ESO was not enlivened. It was therefore not necessary for her Honour to determine whether an ESO should be made and, if so, on what terms.

5. [5]

   The State asserts that the primary judge erred in her construction of the Act and her conclusion. The question before this Court is whether the index offence is a serious violence offence within the meaning of s 5A of the Act. That question raises two types of issue, one relating to statutory construction and the other about applying the State’s construction if it is accepted to be correct:

   1. (1)

      The issue of statutory construction is as to whether the definition of serious violence offence can encompass an index offence which does not include in terms all the elements identified in s 5A(1)(a), and which was not charged as an attempt to commit such a crime, but which can be characterised as an attempt to commit such a crime (and where that can be done without reference to the specific facts of the case). The State made two arguments below in support of that contention, one based upon the words “of a kind” in s 5A(1)(b), and another directed to the interaction between the various subsections within s 5A. The primary judge rejected both arguments. Her Honour indicated at FJ [103] that the main argument raised “a more challenging question to resolve” than the one based on the words “of a kind”. On appeal the State put both arguments again in its written submissions. In its oral submissions, however, it conceded that the “of a kind” argument would not suffice for it to succeed, but still maintained the argument as a minor plank of its main argument. In that context the “of a kind” argument can be dealt with briefly below in the course of addressing the construction issue.

   2. (2)

      If the State is correct in its contention on construction then it still must establish that the index offence here under s 33A(1) of the Crimes Act was one that necessarily would satisfy the requirements of s 5A(1).

6. [6]

   As the primary judge indicated, the statutory construction issue is not one that is easy to resolve. I have reached a different conclusion to that of the primary judge on both issues. The appeal should therefore be upheld and the matter remitted.

7. [7]

   These reasons are structured as follows:

   1. (1)

      facts (at [8]-[11]);

   2. (2)

      the statutory context (at [12]-[25]);

   3. (3)

      relevant aspects of the legislative history (at [26]-[34]);

   4. (4)

      the statutory construction issue (at [35]-[65]); and

   5. (5)

      whether the index offence falls within s 5A(1) (at [66]-[77]).

Facts

1. [8]

   The respondent has a lengthy criminal history. The State applied for an ESO in relation to him in August 2024 when he was on parole for a drug supply offence. His sentence for that offence was to expire on 22 October 2024. The day before it did so the primary judge made an interim supervision order following a preliminary hearing at which the respondent was representing himself: State of New South Wales v Calhoun (a pseudonym) (Preliminary) [2024] NSWSC 1311 (PJ).

2. [9]

   The facts going to the index offence – referred to as “the Smithfield incident” – were identified by her Honour in that judgment as follows:

3. [10]

   In the Preliminary Judgment her Honour briefly addressed the issue of whether the index offence was a “serious violence offence” falling within s 5A of the Act, concluding that it was: PJ [34]-[45]. When the matter came on for final hearing the respondent was represented by a solicitor and counsel, who made further submissions on the issue. The primary judge, very appropriately, indicated that it was necessary to reconsider the issue in more detail, in circumstances where she had not been assisted by submissions from the respondent in the preliminary hearing but where there had been a “robust challenge” on the issue at the final hearing (see FJ [50]-[51]). In light of the further submissions made her Honour came to the contrary conclusion after a careful and detailed analysis (at FJ [52]-[113]).

4. [11]

   The State promptly appealed. Initially it sought that this Court itself make an interim supervision order against the respondent. However, after the hearing of the appeal was listed and heard with substantial expedition the State did not press that application.

The statutory context

1. [12]

   When first introduced the Act was directed to high risk sex offenders. As explained below, it was amended in 2013 so as also to apply more broadly to high risk violent offenders. The Act has been further amended since its operation was broadened in 2013. The objects of the Act now are as stated in s 3:

2. [13]

   Part 2 of the Act addresses the making of ESOs. Part 3 addresses continuing detention orders (CDOs). Section 5H, within Div 1 of Pt 2, provides that “the State may apply to the Supreme Court for an [ESO] against an offender”. There are then two overlapping gateway-type provisions addressing against whom an ESO may be made: s 5I, within Pt 2 Div 1, and s 5B, within Pt 1A.

3. [14]

   Section 5B of the Act provides:

4. [15]

   The first of the four criteria set out in s 5B relates to serving or having served a sentence of imprisonment for a serious offence (either in custody or under supervision in the community). As shall be seen, that requirement is partially echoed in s 5I. The second and the third refer to concepts falling within s 5I, illustrating the overlap between the two provisions. This Court has concluded that the reference to s 5I in s 5B(c) was a drafting error and it should be taken to refer to s 6: State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86 at [87]-[124]. The fourth is distinct to s 5I, being the unacceptable risk criterion. It may be noted that it, too, invokes the notion of a serious offence.

5. [16]

   Section 5I relevantly provides:

6. [17]

   Section 5I(1) provides that an ESO can only be sought in relation to a “supervised offender”, overlapping with what s 5B(b) requires. Section 5I(2) requires that the person in question be an “offender”, a label which is defined in s 4A in terms which require that the person be at least 18 years of age and has been sentenced to a term of imprisonment, where that is defined in terms substantially overlapping but not quite identical to what is required by s 5B(a). Section 5I(2) then requires that the offender is in custody or under supervision at the time the application is made for one of five types of offence, or alternatively is under an existing supervision or detention order. The first of the five types of offence identified is “a serious offence”, and that was the category relied upon by the State with respect to the respondent.

7. [18]

   Here, it was necessary for the State to establish that the respondent was serving or had served a sentence of imprisonment for a serious offence (s 5B(a)). At the final hearing before the primary judge – and again on appeal – the respondent did not dispute that he was a “supervised offender” for the purposes of s 5I, and her Honour so found (at FJ [47]). In the hearing of the appeal the State conceded, however, that if the index offence was not a serious violence offence then the respondent was also not a supervised offender. Nothing turns on that concession in this matter – it simply reinforces the necessity for the State to establish that the index offence is a serious violence offence.

8. [19]

   The term “serious offence” is defined in s 4(1) to mean a “serious sex offence” or a “serious violence offence”. The former notion is defined in s 5(1) in terms identifying specific offences under New South Wales and federal law, with some temporal and geographic extension to conduct that would be such an offence done at other times or in other places.

9. [20]

   The notion of “serious violence offence” is central to this litigation. It is defined in s 5A:

10. [21]

    The State accepted that the references to attempts and conspiracy in s 5A(1)(b) invoked the established criminal law doctrines. It is not necessary here to address what the notion of incitement covers, although it has been the subject of judicial exposition in other statutory contexts: see eg Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [66].

11. [22]

    In Lynn v State of New South Wales [2019] NSWCA 300 (Lynn No 2) Leeming JA, speaking for this Court, said at [22] that it “is clear from s 5A(2) that what matters are the elements of the offence which is said to constitute a serious violence offence”. The primary judge focused on the elements of the index offence, and not the underlying facts, in considering whether or not it fell within the notion of “serious violence offence” as defined in s 5A(1). Both parties accepted in this Court that that was the appropriate approach.

12. [23]

    The index offence was a conviction under s 33A of the Crimes Act, which relevantly provides as follows:

13. [24]

    In particular, the respondent had been charged and convicted of discharging a firearm or other loaded arms with intent to cause GBH; the doctrine of attempt referred to in par (b) was not relied upon.

14. [25]

    The State accepted that the elements of this offence do not fall within par (a) of the definition of serious violence offence in s 5A(1) of the Act. That is so because to establish the offence it is not necessary for the prosecution to prove that the conduct “cause[d] the death of another person or grievous bodily harm to another person”. For example, the offender may have intended to cause GBH to the victim by firing the weapon but the shot missed; or the shot may have hit the victim without causing bodily harm that was grievous. As it happens, in fact, for the index offence here the victim was shot in the thigh (see above at [9]). However, it was not necessary for the court which convicted him to determine whether or not that injury should be characterised as grievous. The State’s argument was that the s 33A offence fell within par (b) of the definition in s 5A(1) because it was at least an attempt to commit an offence of a kind identified in s 5A(1)(a).

Relevant aspects of the legislative context

1. [26]

   The statutory construction arguments are assisted by an understanding of the legislative evolution of the relevant provisions. It is convenient to address that topic first. The primary judge traced the evolution of the Act in her final judgment, drawing upon her earlier detailed analysis in State of New South Wales v Dennis (2024) 114 NSWLR 215; [2024] NSWSC 388 at [69]-[100]. What follows has been assisted by that analysis.

2. [27]

   The widening of the Act to include violent offenders was effected by the Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW) (2013 Amending Act). The change had been precipitated by two reviews of the Act: a statutory review of the Act by the Department of Justice and Attorney General completed in November 2010 (entitled “Review of the Crimes (Serious Sex Offenders) Act 2006”), and a report by the New South Wales Sentencing Council completed in May 2012 (entitled “High-Risk Violent Offenders: Sentencing and Post-Custody Management Options”). Those reviews followed an audit ordered by the State Government of the State’s “750 worst criminals” within the prison system which identified 14 inmates “as potentially posing a significant high risk to the community upon release” (see the statutory review at 80-81).

3. [28]

   The statutory review noted the difficulty of identifying what violence offences should be regarded as sufficiently serious to warrant special treatment for offenders, noting that the results of the audit “show no such common thread amongst the offenders found to be ‘high-risk’” (at 97). The review quoted Gummow J in Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; [2004] HCA 46 at [108], being a case in which the High Court upheld the validity of Queensland legislation for the post-sentence detention of serious sex offenders. His Honour had there noted that “there remains a connection between the operation of the Act and anterior conviction by the usual judicial processes”.

4. [29]

   The Sentencing Council’s report referred to and built upon the statutory review. The Council, having also quoted Gummow J’s statement, said that it “considers that there needs to be a nexus between offending behaviour and future risk, but does not regard the adoption of a list of qualifying offences alone as the way to achieve such a nexus” (at [2.55]). The Council recognised “a need to define the cohort so that the complex and costly task of making orders and managing these offenders is focussed on those in respect of whom it is justified”, whilst noting that “[d]efining the cohort is however a difficult and imprecise task” (at [5.19] and [5.20] respectively). It relevantly recommended that post-custody orders should only apply to “an offender who is convicted of an indictable offence that involves the use of, attempted use of, or shows a propensity towards, serious interpersonal violence” (at [5.22]).

5. [30]

   The bill for the 2013 Amending Act was introduced to the Legislative Assembly by Attorney General Greg Smith SC (Parliamentary Debates (Hansard), 20 February 2013 at 17680). His following explanation in the second reading speech is relevant to s 5A (ibid at 17681):

6. [31]

   Section 5A has been amended twice since its introduction in 2013. In 2016 subs (2A) was introduced by the Crimes (High Risk Offenders) Amendment Act 2016 (NSW). Attorney General Gabrielle Upton made the following observations of relevance in her second reading speech for the bill in the Legislative Assembly (Parliamentary Debates (Hansard), 4 May 2016 at 53-55):

7. [32]

   Section 5A was amended again in 2024 to add par (a1) to subs (1), with a correlative change to par (b) to include a reference to both pars (a) and (a1): High Risk Offenders Legislation Amendment Act 2024 (NSW).

8. [33]

   The following points of note emerge from this legislative history:

   1. (1)

      Attorney General Smith echoed the observation of the Sentencing Council, which itself echoed the view of the statutory review, that it is difficult to delineate who should be classified as a high risk violent offender potentially subject to an ESO.

   2. (2)

      The definition in s 5A identifies offences involving actual or intended violence, causing death or GBH, or an attempt (etc) to commit such offences. That is consistent with the observation made by Gummow J in Fardon about there being a connection between the operation of the Act and an anterior conviction.

   3. (3)

      Attorney General Smith said that the identification of violent offenders took a different approach to the identification of serious sexual offenders “by describing more broadly the activity that is subject to these provisions”. That should not be understood to mean, however, that a broad group was meant to be captured per se. Thus Attorney General Upton referred to the scheme applying to “a very small cohort of high-risk offenders”, and indicated the Act does not apply to every violent offender.

   4. (4)

      Attorney General Upton said that the 2016 amendment “addresses limitations where some very violent crimes, such as shootings and stabbings, are potentially not covered by the Act due to the technical elements of the offence the person was charged with”. That statement manifests an acceptance that the identification of what offences are encompassed by s 5A involves a focus on the elements of the offences.

9. [34]

   The primary judge gleaned from the legislative history that “considerable attention has been given to the objectives of the statutory regime” and to “the offences that should be included within its scope” (FJ [90]). So much can be accepted. However, it should also be recognised that the Parliament has sought to grapple with a difficult issue of delineation in seeking to identify what violent offenders should be potentially subject to the legislative scheme. That fact gives particular weight to the need to take a purposive approach to construction of s 5A.

The statutory construction issue

1. [35]

   The drafting of the Act is not a model example of the craft. For example, as noted above at [15], this Court has held that the reference in s 5B(c) to s 5I was a mistake and should be taken to refer to s 6. The requirement in s 5B(b) that the person be a supervised offender within the meaning of s 5I is repetitive of what is required by s 5I itself. And the drafting of s 5A(1)(a1) simply does not scan, even if the meaning is apparent. It reads as follows: “a serious violence offence is a serious indictable offence that is constituted by a person … an offence under the Crimes Act 1900, section 37(1) or (2)”.

2. [36]

   The Act has been amended a number of times and different drafters may have been involved. However, the Act as amended is to be read as a whole as a combined statement of the will of the legislature: Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 at [25]. Statutory construction requires consideration of the text, context and purpose of the provision and statute in question.

3. [37]

   The elements of the index offence in this matter, under s 33A(1) of the Crimes Act, are twofold:

   1. (1)

      engaging in the conduct of discharging or attempting to discharge a firearm (or other loaded arms); and

   2. (2)

      doing so with the intention of causing GBH to any person.

4. [38]

   The respondent was convicted of the offence itself. He was not convicted of the attempt version of the offence, nor of an attempt to commit the offence, nor was he charged or convicted of an offence under s 33(1)(b) of the Crimes Act of causing GBH to any person with intent to cause such harm. Nor was he charged or convicted of an attempt to commit an offence under s 33(1)(b). To prove an attempt to commit a crime it is necessary for the prosecution to prove two matters (as discussed below at [67]). The prosecution did not need to do so for the index offence at issue here.

5. [39]

   The State argued that the respondent’s conviction under s 33A(1) “necessarily” meant that he was also guilty of an attempt to commit an offence under s 33(1)(b). The elements of that offence are (1) causing grievous bodily harm to any person, (2) with intent to cause grievous bodily harm to that or any other person. The maximum penalty for that offence is the same as the penalty for s 33A, namely imprisonment for 25 years. The State said that the conduct involved in the index offence “equates to” attempting to engage in conduct causing GBH with the intention of causing GBH, thus satisfying the requirements of s 5A(1)(b) of the Act. On one variant of the argument, the State said that if conviction for one offence necessarily meant that the person was also guilty of another offence, and if that other offence satisfied the requirements for being a serious violence offence, then that sufficed to establish that the person had committed a serious violence offence for the purposes of the statutory scheme.

6. [40]

   The State made clear that it was not suggesting taking account of the particular facts and circumstances of the index offence. Rather, its focus was on the elements of the offence. It asserted that reference to the elements of an offence under s 33A(1) sufficed of itself to establish that the respondent would also necessarily have been guilty of the offence of attempting to commit an offence under s 33(1)(b) and, in any event, satisfied the requirements of s 5A(1).

7. [41]

   The respondent’s position was that s 5A involved referring only to elements of the index offence in question. Either those elements satisfied the requirements of being a serious violence offence or they did not. It was not a matter of assessing if those elements could also be characterised as necessarily implying that the person was also guilty of some other offence which would be a serious violence offence, nor of considering whether they necessarily meant that the person had attempted to commit an offence which satisfied the requirements of s 5A(1)(a).

8. [42]

   In its written submissions the State said that its argument was “on all fours” with this Court’s decision in Lynn No 2. That assertion was not maintained in oral submissions. It is not correct. The Court there held that where the person had pleaded guilty to manslaughter on the basis of “excessive self-defence”, in the sense addressed in s 421 of the Crimes Act, then the plea “necessarily comprehends all of the elements of the offence of murder” (quotation from [27]). That was so because it “is settled law that [such a] plea amounted to an acceptance of all of the elements of murder” (at [29]). In other words, if such a matter went to trial it would be necessary for the prosecution to establish the elements of murder (thus satisfying the requirements of s 5A(1)) even if the prosecution only sought that the person be found guilty of manslaughter by reason of s 421 of the Crimes Act. Thus Lynn No 2 involved looking to the actual elements of the offence charged, which elements satisfied the requirements of s 5A(1). The primary judge was correct to conclude that Lynn No 2 did not assist to resolve the issue in this case (at FJ [109]-[110]).

9. [43]

   The State sought to rely on the words in the chapeau to s 5A(1) insofar as it says that a serious violence offence “is a serious indictable offence that is constituted by a person …” (emphasis added). It said that the drafter could have used the word “of” instead of “constituted by”, and that the use of those two words suggested a focus on the substance of the offence rather than just its formal elements. This point, too, does not assist the State. As the respondent noted, to talk of how an offence is constituted could equally be thought to direct attention to the elements of the offence in question.

10. [44]

    A textual, contextual and purposive point of greater significance is the way in which s 5A(1) is drafted. The parallel term of “serious sex offence” is defined in s 5(1) of the Act by identifying specific offences under the Crimes Act and under federal criminal law (with, as noted, some temporal and geographic extension to conduct that would be such an offence done at other times or in other places). That is a clear and precise way of identifying what offences are encompassed by the notion. The drafter employed the same precise technique when defining the notion of “offence of a sexual nature” in s 5(2). That concept has work to do in the definition of “supervised offender” in s 5I(2).

11. [45]

    The technique employed in s 5A(1) with respect to identifying serious violence offences, as originally drafted, is different. It focused in par (a) on engaging in particular conduct with a particular mens rea, and then encompassing variants of those offences involving attempt, conspiracy or incitement in par (b). The reason for taking a different approach with respect to serious violence offences was explained by Attorney General Smith in his second reading speech, namely that “violence arises from a wide range of human behaviours” and the “bill has taken a different approach by describing more broadly the activity that is subject to these provisions” (see above at [30]). As already noted, the Attorney observed that the Sentencing Council had pointed out that “defining who is a high-risk violent offender is a difficult task”.

12. [46]

    It would have been possible, if tedious, for the drafter to trawl through the provisions of the Crimes Act to identify particular offences with elements of causing death or GBH, doing so with the intention of or recklessness as to causing death, GBH or actual bodily harm. The drafter had undertaken just such a task with respect to serious sex offences. It can be accepted that the scheme requires having regard to the elements of offences (consistently with s 5A(2)). The deliberate choice to adopt a different technique for serious violence offences, taken because of the difficulty of delineating high-risk violent offenders, indicates that the drafter intended to encompass the potential for there to be something more involved in the assessment than simply examining how the elements of relevant offences are expressed (which is not to deny that in most cases the elements will be expressed in such a way as to make the task of identification a simple one).

13. [47]

    The question then is what that something more is. An answer is supplied by s 5A(2), which provides that an offence “that includes the elements referred to in subsection (1)(a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements”. The second part of the provision – relating to the inclusion of other elements – is self-explanatory. The first part of this provision indicates that offences can be encompassed even if the elements are not expressed in terms of conduct causing death or GBH, or with the requisite mens rea as expressed in par (1)(a). That understanding of the “something more” can, as the State put it, be taken to require the process of identification to look to the legal substance of offences and not just the form in which they are expressed.

14. [48]

    The respondent sought to diminish the significance of s 5A(2), and the distinctive approach taken in s 5A(1), by referring to par (a1) and subs (2A). The former identifies two specific offences, in a manner consonant with the delineation of serious sex offences. The latter is also somewhat more specific than par (1)(a), addressing three particular types of offence. Both provisions were introduced by subsequent amendment and were meant to address perceived issues with offences that the Government of the day wished to ensure were covered. That these later amendments were specific in their focus does not alter the more general way in which par (1)(a) is expressed. Nor does it alter the direction given in subs (2) as to how par (1)(a) is to be applied. It is not uncommon for Parliament to insert specific provisions to make clear its intention on how general provisions are to be understood or applied in relation to particular issues.

15. [49]

    Thus s 5A(1)(a) may encompass offences where the elements of the offence can be characterised as meeting the requirements there identified, even though not put in those terms. Consistently with the words of s 5A(2), the focus is on the elements of the offence and not on the particular facts of the matter. That being so, the question is whether the elements of the claimed index offence are necessarily such as to satisfy the requirements of s 5A(1)(a). If there is merely potential overlap between the elements of the claimed index offence and the par (1)(a) requirements, but there are plausible instances under which the claimed index offence would not satisfy the par (1)(a) requirements, then it could not be said that the elements of the offence are inherently such as to fall within par (1)(a).

16. [50]

    There is a complication in this matter. The State’s application involves reliance on the doctrine of attempt, and it invokes s 5A(1)(b) of the Act, having accepted that the s 33A(1) offence does not fall within s 5A(1)(a). As the respondent pointed out, s 5A(2) refers only to par (1)(a). The respondent submitted that the omission of a reference to par (1)(b) “must have been a deliberate one”. He argued that “it follows that the legislature did not intend to include inchoate offences (such as attempt) in the operation of s 5A(2)”.

17. [51]

    On the surface there is some force in this submission. But I am not persuaded by it. To begin with it is appropriate to set aside one way in which the State put its case. As noted, it argued that an offence under s 33A(1) “necessarily comprehends all the elements of an attempt to commit an offence against s 33(1)(b) … and that, because s 33(1)(b) is an offence falling within s 5A(1)(a) of the [Act], an offence against s 33A falls within s 5A(1)(b)”. The State is correct to submit that an offence under s 33(1)(b) is an offence satisfying the requirements of s 5A(1)(a).

18. [52]

    Yet the reference to the other, analogue offence in s 33(1)(b) is a distraction. There can be no doubt that what must be addressed is the nature of the offence for which the person is serving or has served a sentence of imprisonment (s 5B(a)). Whether or not that offence could have been brought as another charge might throw light on the question of the nature of the elements of the index offence. But even on the extended operation of s 5A(1)(a) permitted by s 5A(2), the question is the substantive nature of the elements of the index offence itself – specifically, do those elements of that offence in substance satisfy the dual requirements set out in that paragraph, regardless of how they are expressed? In the words of s 5A(2), the index offence must “include[] the elements referred to in subsection (1)(a)”. Whether the conduct could have been charged in another way is not to the point.

19. [53]

    Thus the respondent was correct to argue that either the elements of the index offence satisfy the requirements of being a serious violence offence or they do not. But that is not a complete answer to the State’s case because, as explained, s 5A(2) means that it may be necessary to look beyond how the elements of the index offence are expressed and to examine the substance of the offence.

20. [54]

    As for par (1)(b), as a matter of text it works together with par (1)(a). It builds upon that category of offences encompassed by par (1)(a) to also include the variants of attempting (etc) to commit those offences. The requirements of s 5A(1) can be broken down in the following way (setting aside par (a1) for current purposes). The issue is whether the index offence necessarily:

    1. (1)

       includes in substance the following elements, even if not expressed in terms in this way:

    2. (2)

       was conduct constituting attempting to commit, or conspiring with or inciting another person to commit, an offence which satisfies those two requirements.

21. [55]

    This understanding is consistent with the State’s submissions that the words “of a kind” in s 5A(1)(b) refer to a type of offence. It reflects the point that given subs (2) requires a substantive approach to be taken to par (1)(a) offences, it was reasonable to use the somewhat general words “of a kind” to encompass that genus. That being said, the understanding just outlined does not ultimately need to depend upon a generic approach being taken to the words “of a kind” in s 5A(1)(b). It is sufficient to understand par (1)(b) as simply applying to the very offences captured by par (1)(a). The point is that the very offences captured by par (1)(a) are as affected by subs (2).

22. [56]

    The primary judge’s main reason for rejecting the State’s position was that she did not accept that the elements of s 33A(1) by themselves established an attempt to commit an offence of the kind identified in s 5A(1)(a) without consideration of the circumstances of the offending (at FJ [111]). That point is addressed below (at [66]-[77]). Insofar as her Honour’s conclusion involved statutory construction she also said this:

23. [57]

    In my view the legislative history and the drafting of s 5A, in contrast to s 5, supports the construction advocated by the State rather than undermining it (see above at [33] and [44]-[49]). The State’s argument is consistent with focusing on the elements of the offence. It can be said that the respondent’s argument has the virtue of simplicity and clarity. However, importantly, that argument fails to recognise the significance of s 5A(2).

24. [58]

    That leaves for consideration the primary judge’s invocation of the doctrine often given the label of the “principle of legality”. Basten JA has referred to the principle in more informative and less question-begging terms as the “clear statement principle”: Tannous v State of New South Wales (2020) 103 NSWLR 183; [2020] NSWCA 261 at [37]. The classical statement of the principle is found in Potter v Minahan (1908) 7 CLR 277 at 304; [1908] HCA 63.

25. [59]

    The potential application of the principle to s 5B of the Act was rejected by Simpson AJA, with the agreement of Bell CJ and Beech-Jones JA, in Kaiser:

26. [60]

    The respondent did not challenge what was said there. However, he sought to distinguish that case from this one on the basis that here what is at issue is the scope of the definitional provision in s 5A, whereas the Court in Kaiser was considering s 5B, in particular par (b). Section 5B has rightly been described as a “gateway” provision: Tannous at [14]. The effect of the definition in s 5A, along with that in s 5, is to fill out part of the architecture of that gateway. Here, as explained above (at [18]), the significance of the definition of serious violence offence is that it was necessary for the State to establish that the respondent was an offender who is serving or has served a sentence of imprisonment for a serious offence (including a serious violence offence) in order to satisfy s 5B(a). Further, as noted above (at [18]), an issue also arises with satisfaction of ss 5B(b) and 5I in relation to the respondent being a supervised offender. Although the focus of argument in this case has been on s 5A, the issue matters because of s 5B. The decision in Kaiser is not distinguishable as suggested by the respondent.

27. [61]

    Moreover, somewhat similar arguments have been rejected by this Court in two previous cases. In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn No 1) the issue was the construction of s 5E(2) of the Act, as it then stood, requiring that the Supreme Court be satisfied “to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision”. That requirement is now found, in slightly different terms, in s 5B(d) of the Act. Mr Lynn argued that it was implicit in the provision that the Court was required to take into account that the prior custodial sentence had been served in full and that “the person potentially subject to the order would otherwise be entitled to their personal liberty” (quotation from [10]). All members of the Court rejected the argument. The significance of the infringement of liberty was to be taken into account at a later stage of the analysis. The “interests of the offender in liberty and privacy are to be taken into account in the exercise of the court’s discretionary power under s 9 of the Act to either make an extended supervision order, or dismiss the application for such an order” (Gleeson JA at [149]; see similarly Basten JA at [128]-[130] and [143]).

28. [62]

    Tannous also concerned the “unacceptable risk” requirement, by then found in s 5B(d). Mr Tannous argued that it was implicit in the requirement that the duration of an ESO “could not extend beyond the period during which the court was satisfied to a high degree of probability that the applicant would continue to pose an unacceptable risk of committing another serious offence” (quotation from [6]). Arguments based on the common law’s protection of liberty were again invoked. The claim was rejected. Basten JA, speaking for the Court, said the following (citation omitted):

29. [63]

    Both Tannous and Lynn No 1 involved rejecting arguments about limitations that it was said should be read into aspects of the gateway requirements. The issue here is a more simple reading-down argument. Nevertheless, Basten JA’s articulation of principle just quoted is consistent with and supportive of the view expressed in Kaiser rejecting application of the clear statement principle to support a reading down of s 5B.

30. [64]

    In this context the primary judge’s reliance on that principle to read down the definition of serious violence offence was in error.

31. [65]

    In any event, “[t]he principle of legality’s role may be thought of as an occasionally useful, context-dependent adjunct to the ultimate and central judicial task and responsibility of giving effect to legislative intention”: Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [86]. Here, if it did apply, that principle would not outweigh the significance of what emerges from the legislative history, the deliberate adoption of a different approach to defining serious violence offence as opposed to serious sex offence, and the terms of s 5A(2). Section 5A(1)(a) and (b) of the Act should be understood in the manner outlined above at [54].

Does the index offence fall within s 5A(1)?

1. [66]

   Applying that approach here, and taking account of the way in which the State has put its case, the issue is whether or not the respondent’s conviction of an offence under s 33A(1) of the Crimes Act necessarily meant that he had attempted to commit an offence which has in substance elements satisfying the requirements of s 5A(1)(a).

2. [67]

   The parties accepted that the doctrine of attempt involves the offender (1) intending to do the acts with the relevant state of mind which together would comprise the intended crime and, with that intention, (2) doing some act towards the commission of the crime which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime: R v Mai (1992) 26 NSWLR 371 at 382 and 384.

3. [68]

   Drawing these threads together, in this case (involving an allegation of intending to cause GBH and not death) the question is whether the respondent’s conviction of an offence under s 33A(1) necessarily establishes that he:

   1. (1)

      intended to engage in conduct causing GBH to another person (as per the requirements of s 5A(1)(a)); and

   2. (2)

      with that intention did some act towards the commission of the crime which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime.

4. [69]

   As noted, the elements of the offence under s 33A(1) are relevantly (1) discharging any firearm or other loaded arms, (2) with intent to cause GBH to any person. Conviction of that offence necessarily establishes that the respondent did an act with intent to cause GBH to another (although, as noted earlier, it does not establish that GBH resulted). Thus the first requirement just identified is satisfied.

5. [70]

   The key question is whether discharging a firearm or other loaded arms with that intent necessarily means that the respondent did some act towards the commission of the crime of causing GBH with intent (satisfying the requirements of s 5A(1)(a)) which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime. The respondent submitted that although in some cases “the act of discharging a firearm by the accused could constitute an act sufficiently proximate to the substantive offence” to satisfy this requirement, that would not be so in all cases.

6. [71]

   The Court asked senior counsel for the respondent if he could identify some plausible case in which a person convicted under s 33A(1) would not satisfy the requirement. Senior counsel candidly accepted that “[i]t’s difficult to think of one”. The only example he proffered was as follows (it was actually expressed in terms of murder, but it is simpler and more relevant to express it in terms of GBH).

7. [72]

   As senior counsel for the State submitted in reply, such conduct would not constitute an offence under s 33A(1). That offence relevantly involves the person discharging the firearm or loaded arms “with intent to cause [GBH]” (emphasis added). That is to say, the action of firing must be done with the intent to achieve that end by that action; the firing is done in order thereby to cause GBH. Discharging the firearm in the example given caused harm to the door and was done with intent to break the lock. No doubt it can be said that the discharge might be a step towards being in a position to be able to inflict the GBH. But such an extended notion of causation would not suffice to make out the offence. Rather, it is the sort of conduct potentially encompassed by the doctrine of attempt, if that was as far as the conduct reached in bringing about GBH. If it was a step to facilitate another person causing GBH then it could constitute being an accessory before the fact in that it is an act doing something to bring about, or rendering more likely, the ultimate commission of the offence: see eg R v Russell [1933] VLR 59 at 67; Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [71].

8. [73]

   I note in passing that when her Honour articulated the elements of the s 33A offence in the preliminary judgment she described the conduct element as “engaging in conduct (discharging or attempting to discharge a firearm) in an attempt to cause grievous bodily harm” (at PJ [36], emphasis added). That was not an accurate rendering of the elements stated in the text of s 33A but it is an accurate statement of what the offence, at the least, involves in substance.

9. [74]

   If a person discharges a firearm or other loaded arms with the intent to cause GBH then they have necessarily at the least undertaken an act that is not merely preparatory towards the commission of the crime of engaging in conduct that causes GBH with intent to do so (such as to satisfy the requirements of s 5A(1)(a)), and which cannot reasonably be regarded as having any other purpose. In fact, the person may have actually caused GBH by that action, which would be more than an attempt. But then it would satisfy the requirements of s 5A(1)(a) more directly without reference to the doctrine of attempt. Either way, the conduct necessarily satisfies the requirements of the provision.

10. [75]

    The core reasoning of the primary judge on the issue was as follows (at FJ [111]):

11. [76]

    The State’s arguments do not depend upon addressing the particular conduct of the offender in question. They are addressed to the very nature of the elements of the offence of which the respondent was convicted under s 33A.

12. [77]

    The State has made out its argument that the index offence in this matter does necessarily satisfy the requirements of s 5A(1). It is a serious violence offence.

Orders

1. [78]

   In light of the above the primary judge erred in concluding that the Supreme Court did not have jurisdiction to determine the State’s application for an ESO against the respondent. Her Honour (understandably) did not address the issues of whether an ESO should be made and, if so, on what terms. It is therefore necessary that the matter is remitted to the Common Law Division. The State sought an order that the remittal be conducted “on an expedited basis”. It is unnecessary to make such an order as there is no reason to doubt that the Supreme Court will proceed with appropriate expedition on application made to it. The State did not seek its costs, consistently with s 23 of the Act.

2. [79]

   The orders of the Court should be as follows:

   1. (1)

      Appeal allowed.

   2. (2)

      Order 1 made by Yehia J on 20 January 2025 dismissing the amended summons filed on 29 August 2024 is set aside.

   3. (3)

      Remit the proceedings to the Common Law Division, to be redetermined according to law.