Tannous v State of New South Wales

1. [1]

   BASTEN JA: On 23 March 2020 Rothman J imposed an extended supervision order on the applicant, Steven James Tannous, for a period of three years. The applicant did not resist such an order before the primary judge, nor does he challenge the existence of an order in this Court. Rather, he seeks leave to appeal (leave being required because the appeal was lodged out of time) on the basis that the order should have been for a two year period, rather than for three years.

2. [2]

   The order was made under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The right of appeal conferred by s 22 of the Act may be exercised as of right within 28 days after the order is made: s 22(3). Otherwise leave is required. The State noted that the appeal was lodged some three weeks out of time: more relevantly, the content of the primary ground was not identified until written submissions were filed four months after the order was made. Nevertheless, the State accepts that there is an issue as to the operation of the Act in a particular respect which is sought to be raised on the appeal, and does not oppose a grant of leave. Although there were good grounds to refuse leave with respect to ground 1, identified below, in the absence of opposition the applicant should have leave to appeal.

3. [3]

   The applicant has a sorry history of sexual offences involving elements of physical violence. He is now 41 years old, his first serious offending having occurred in 1999, when he was 20 years of age. He committed serious sexual offences (sexual intercourse with a child between 10 and 14 years) in July 2012. He received an overall sentence of 7 years 6 months, with a non-parole period of 4 years 6 months, which expired on 27 January 2017. He was released on parole on 8 March 2018. The State’s application for supervision orders was made on 7 November 2019, whilst he was subject to supervision on parole. Interim supervision orders were in place between 19 December 2019 and the final order made by Rothman J on 23 March 2020.

Issues

1. [4]

   Submissions focused on the terms of s 5B of the Act which reads as follows:

2. [5]

   The primary judge noted that there was no resistance on the part of the applicant to the making of an order on the basis that each of the conditions set out in pars (a)-(d) of s 5B was satisfied. Nor was it in doubt that the power, once engaged, permitted the making of an order which might extend for a period not exceeding 5 years, as permitted under s 10(1A)(a) of the Act.

3. [6]

   Ground 1 alleged that the primary judge erred in failing to find that the state of satisfaction required by s 5B(d), as to “unacceptable risk”, imposed a limitation on the period for which the order could extend. Thus, the applicant submitted that the duration of the order 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.

4. [7]

   Ground 2 turned on the effect of the evidence given by the court-appointed psychiatrist, Dr Andrew Ellis, and the court-appointed psychologist, Mr Patrick Sheehan as to the appropriate duration of an extended supervision order. In written reports, Dr Ellis had favoured a three year period, Mr Sheehan a two year period. The applicant asserted that Dr Ellis had qualified his view in oral evidence, accepting two years as sufficient. Ground 2 alleged that the primary judge had overlooked this concession in adopting a period of three years, ostensibly on the basis of Dr Ellis’ opinion.

5. [8]

   Ground 3 asserted that it was not “open” to the judge to make an order with a three year duration. It was conceded that this conclusion depended on acceptance of ground 1, the allegation being that the judge could not be satisfied to a high degree of probability that the offender would pose an unacceptable risk after two further years of supervision. Because ground 1 should not be accepted it will not be necessary to address this ground.

6. [9]

   As ground 2 should also be dismissed, the appeal must be dismissed.

Ground 1 – operation of s 5B

1. [10]

   Ground 1 was expressed in very general terms in the notice of appeal:

2. [11]

   It was common ground that the primary judge did not make a finding as to when the risk would no longer be “unacceptable”. He did not have to, because the construction of the statute now proposed was not proposed below.

3. [12]

   There might have been a large question as to whether the applicant should have been permitted to raise this issue. It had not been presented in these terms to the primary judge; the evidence of the experts did not in terms address such a proposition and there must be an issue as to the form of relief which should now be given if the proposed construction be correct. It raises an issue as to the scope of the appeal provided by s 22 of the Act and as to whether the principle in Coulton v Holcombe, [2] that, “had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding,” should prevent it being agitated on appeal.

4. [13]

   The justification for the court considering the issue appears to have been that a limitation on power imposed by s 5B(d) of the Act was “jurisdictional”. Whether that is so or not, there being no opposition from the State, which has addressed the legal issue, it is a matter which the Court should determine. [3]

Scheme of the Act

1. [14]

   Legislation dealing with violent offenders, serious sexual offenders and terrorist offenders has been enacted and amended over more than a decade. Provisions in the form of s 5B are commonplace in such legislation. They have consistently been understood as identifying the conditions of engagement of statutory powers to make continuing detention orders or extended supervision orders. They may be colloquially referred to as “gateway” provisions. [4] This is so despite the fact that s 5B commences with the words, “[t]he Supreme Court may make an order … if”. Although this can be the language of conferral of a power, read in context these words are merely descriptive. The purpose of the provision is to condition the engagement of the power so identified. [5] Section 9(1) confers power to make particular orders in determining an application for an extended supervision order, the exercise being regulated by the following provisions in s 9 and s 10.

2. [15]

   Nor is this conclusion undermined by the fact that s 5B(d) requires an assessment of risk on the basis that the offender is “not kept under supervision under the order.” The effect of this language is to remove any requirement to consider, at the point of engagement of the power, whether the unacceptable risk would be diminished by the making of an order. As explained in Naaman (No 2):

3. [16]

   Naaman (No 2) was concerned with s 20(d) of the Terrorism (High Risk Offenders) Act 2017 (NSW). The description of the effect of s 20(d) (which is functionally identical to s 5B(d)), contains no suggestion that par (d) controls the duration or conditions of an order. It is true that such a question did not arise in that case, the appeal being one brought by the State against the refusal of a judge to make such an order. Nevertheless, recognition that a provision such as s 5B constitutes a set of conditions of engagement of the power entails a degree of implausibility in a submission that the section is intended to regulate the terms or conditions imposed if an order is to be made.

4. [17]

   Nor does the language of par (d) provide support for the submission. The condition is expressed in the present tense in two respects. The first is uncontroversial: it requires that the court “is satisfied”, that is, at the time it determines the application, as to the existence of the condition. Secondly, the matter as to which the court is to be satisfied, is that “the offender poses an unacceptable risk…”. Because the purpose of the provision is to identify a condition of exercise of the power, albeit forward-looking, it is not sensible to read the present tense (“poses”) as meaning “poses now and will continue to pose during the duration of any order”. That would be to import into the condition of making an order an obligation to set the limits of the duration of the order (if made). Both purpose and syntax are inconsistent with such a conclusion.

5. [18]

   As the State contended, s 9(2) provides that “[i]n determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.” Section 9(3) identifies 12 “matters” which the court must have regard to; the list is not exclusive and the court must also have regard to any other matters which it considers relevant. Those matters fall into two broad categories: first, there are reports and sources of information which may be provided in evidence, including, for example, the criminal history of the offender. The other category identifies evaluative judgments which must be made. For example the court must consider “options” which may be available either in custody or in the community, that might reduce the likelihood of reoffending and an assessment of the likelihood that the offender will comply with the obligations of an order: pars (e1) and (e2). Further, the term of an order is addressed in s 10, in terms which impose the limit of five years noted above, but also recognise that a period may be specified in the order: s 10(1A)(a). Other aspects of s 10 are mechanical; they give no indication as to matters to be considered by the court in specifying the period for which the order is to operate.

6. [19]

   This broad structure suggests that s 5B is purely a “gateway” provision and says nothing about the conditions or period of any order which may be made in the court’s discretion. The discretionary power is conferred by s 9(1) and the matters to be taken into account are specified in s 9(2) and (3). They are not specified in s 5B.

7. [20]

   This construction of s 5B(d) cannot be said to leave a gap in the legislative scheme by permitting an order to continue in force beyond the appropriate period. The relevant protection is provided by mandating regular reviews, with a power, at an appropriate time, for the court to reconsider the ongoing operation of the order. Thus, s 13 provides:

Applicant’s case

1. [21]

   In support of his submission that a condition as to duration was to be implied into s 5B(d), the applicant relied upon three matters, namely (i) the application of the objects set out in s 3(1) of the Act; (ii) reading down in accordance with the principle of legality (clear statement principle), and (iii) authority supporting the proposed construction. These matters will be addressed in turn.

2. [22]

   Section 3 of the Act provides as follows:

3. [23]

   The submission relied upon s 3(1), on which it is convenient to focus. The language is now anomalous: it refers to “high risk sex offenders” and “high risk violent offenders”. Each of these used to be, but no longer is, a defined term, used in operative provisions of the Act. However, the definitions were removed, and s 5B and s 5C inserted, in March 2017. [6]

4. [24]

   The applicant’s submission sought to rely upon the anomaly, in order to link the objects clause with s 5B. He submitted that the only reference to “risk” in any relevant provisions of the Act is now to be found in s 5B(d). [7] Reading s 3(1) and s 5B(d) together, the primary object of the Act is to provide for extended supervision of a person who satisfies the condition in s 5B(d). Once the person falls outside that provision, the Act no longer had as a primary object providing for his or her extended supervision. Therefore, it was submitted, s 5B(d) must require the court to limit the operation of any order to the period during which the person will continue to satisfy that condition.

5. [25]

   It is convenient, and perhaps appropriate to ignore the fact that the objects clause no longer uses language referable to a defined term. However, it was not only the objects clause which was left unamended; various ancillary provisions dealing with administrative matters were also untouched, [8] as were some headings, including the heading to Pt 1A in which s 5B appears, which still reads, “Supervision and detention of high risk offenders”.

6. [26]

   Nevertheless, the use made of s 3(1) is misconceived. An objects clause cannot be used to impose on an operative provision constraints which do not appear in the provision itself. Section 5B is the provision being construed; it is to be construed in context, which will include the heading to the Part, [9] and s 3(1). It is also necessary to prefer a construction that would promote the purpose or object underlying the Act, to one which would not. [10]

7. [27]

   Several points flow from these principles. First, while s 3(1) forms an element of the context in which s 5B(d) is to be construed, it is only part of that context. It is true that it identifies a “primary purpose” of the legislation, but the whole purpose can be ascertained only by reference to the whole of the legislation.

8. [28]

   Secondly, if it is necessary to refer to s 5B(d) to give meaning to the objects clause, it is circular then to rely upon the objects clause as a means of limiting the operation of s 5B(d).

9. [29]

   Thirdly, as with the use of preambles, which have largely been replaced by statements of objects or purposes, [11] any attempt to encapsulate in a sentence the operation of the whole statute must be viewed with caution.

10. [30]

    Fourthly, in accordance with s 33 of the Interpretation Act, identification of a statutory purpose provides guidance as to the construction of substantive provisions of the Act; it does not form a basis to substitute the purpose for the language of a substantive provision.

11. [31]

    Finally, if the purpose is to be found in s 3(1), it is to be found in the whole of s 3(1). That purpose is not simply to provide for the extended supervision of high risk offenders, but extended supervision is imposed “to ensure the safety and protection of the community.” Read as a whole, s 3(1) identifies the focus of the Act, but not by way of a limiting consideration.

12. [32]

    None of these principles is controversial. Thus, in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd, [12] this Court considered in some detail the use which could be made of the objects identified in s 5 of the Environmental Planning and Assessment Act 1979 (NSW) in relation to the validity of a state environmental planning policy promulgated under s 37 and s 39 of the Act. The objects, requiring public involvement in environmental planning, were said to be inconsistent with the approach adopted by the Minister in recommending the particular planning policy under scrutiny. As noted by Handley JA, “[t]he objects in s 5 of the Act are not incorporated in s 39 and do not condition the power it confers.” [13] Sheller JA stated: [14]

13. [33]

    Cole JA stated that: [15]

14. [34]

    Although it may be said that Rosemount involved an Act which contained a number of objects which were apt to conflict in particular situations, the last proposition extracted from the reasoning of Cole JA was expressly relied upon by Beazley P in Lynn in relation to the current legislation (albeit in an earlier form) stating:

15. [35]

    In S v Australian Crime Commission, [18] Mansfield J addressed an argument as to the validity of a provision which introduced the need for a “federal aspect” in order to limit the circumstances in which a Commonwealth authority could investigate a State offence. In rejecting a submission based on the lack of a constitutional foundation for the provision, Mansfield J stated:

16. [36]

    None of the terminology, syntax or particular purpose of s 5B(d) is unclear or ambiguous. The broad language of s 3(1) neither assists nor hinders in identifying the operation of s 5B(d). It cannot be invoked to impose some implied limitation in the manner contended for by the applicant.

17. [37]

    The applicant’s submission with respect to the clear statement principle (the principle of legality) was founded upon the individual right to liberty. The applicant submitted in writing: [20]

18. [38]

    As the applicant correctly noted, this Court accepted in State of New South Wales v Donovan, [21] that “an offender’s right to personal liberty after completing the term of imprisonment for which he or she has been sentenced was accurately described as ‘the most elementary and important of all common law rights’, which ‘cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes’: Williams v The Queen (1986) 161 CLR 278 at 292, a passage cited by the primary judge.”

19. [39]

    The discussion of the clear statement principle (principle of legality) arose in considering the operation of s 5G(1) of the Act as then in force (it has since been amended) which conferred power to make a continuing detention order if the court were satisfied that “adequate supervision will not be provided by an extended supervision order.”

20. [40]

    Contrary to the applicant’s submissions, the assessment of “unacceptable risk” did not involve the Court having regard to the applicant’s interests. They were not to be disregarded, but they were properly taken into account, not in relation to the conditions of engagement, but rather in considering the discretion to make an order once the power was engaged, and on what conditions.

21. [41]

    Neither the right nor its importance is contestable. However, the right is not absolute and may lawfully be infringed without statutory authority; there are general law powers of arrest and powers of imprisonment for common law offences. The submission is, rather, that in the case of a statute, any infringement of the right of liberty of the individual must be expressed in clear language, so as to not to extend beyond that which is expressly stated or clearly implied. It therefore operates to ensure that s 5B(d) does not impermissibly infringe the right to liberty.

22. [42]

    The applicant’s written submissions contended that the Act -

23. [43]

    That statement was not inconsistent with what this Court had said in Lynn by Beazley P:

24. [44]

    Similarly, Gleeson JA stated:

25. [45]

    However, in oral argument, senior counsel for the applicant sought to distinguish Lynn on the following basis: [23]

26. [46]

    There is no doubt that the court, in determining the duration of an extended supervision order should take into account the extent to which it infringes upon the liberty of the offender. So much was expressly recognised in Lynn. [24] Importantly, there is a difference between (i) treating a common law right as a factor to be taken into account in decision-making (under s 9), and (ii) treating it as a basis for reading down the statute (s 5B(d)). Lynn assumed that determining the duration of a possible order was not part of the exercise required under the then equivalent provision, namely s 5E (since repealed). The submission that factors affecting the interests of the offender are to be considered as part of a “gateway” provision is inconsistent with the purpose of such a provision. At the very least it is a bootstraps operation by which the liberty of the individual is invoked only if questions of duration are in issue.

27. [47]

    As a principle of statutory construction, the clear statement rule provides no basis for reading s 5B(d) as incorporating discretionary requirements reflecting the interests of the offender which are otherwise within the considerations relevant to the exercise of power under s 9.

28. [48]

    The applicant submitted that support for his reading of s 5B(d) might be found in authorities both in this State and in Victoria. The applicant’s written submissions relied upon a passage in Bugmy v State of New South Wales [25] to the following effect:

29. [49]

    When Bugmy was decided, the equivalent provision to s 5B, identifying who is a “high risk violent offender” was s 5E(2). (It was that provision which was addressed in Lynn.) Section 5E(2) contained a test of satisfaction to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence. Section 5G (referred to in the quoted passage) provided for the making of an order with respect to a person found to be a high risk violent offender, where adequate supervision would not be provided by an extended supervision order. Section 5G was not in its terms equivalent to s 5B in the present Act. The passage from Bugmy therefore provides no assistance in construing s 5B.

30. [50]

    Further, had it been material, the statement in Bugmy could have carried little weight. The proposition put forward by the applicant was accepted without analysis in its terms, because even on that basis the application failed. It was not necessary to consider whether the submission was justified.

31. [51]

    Passing reference was made to the recent decision of Garling J in State of New South Wales v WXN1. [26] No issue arose in that case as to whether an extended supervision order should be made; the only issues for consideration were the conditions of the order and the duration. Even a term of three years was not disputed. [27] With respect to the imposition of a particular term, Garling J stated:

32. [52]

    For reasons already stated, that was an unexceptionable reliance upon s 3(1), in the exercise of the Court’s discretion.

33. [53]

    Finally, the applicant placed reliance upon what appears to have been the only consideration of similar legislation in the Victorian Court of Appeal, namely ARM v Secretary to the Department of Justice. [28] The passage relied upon by the applicant was in the following terms:

34. [54]

    To understand the relevance of this statement it is necessary to have regard to the provisions of the Serious Sex Offenders Monitoring Act 2005 (Vic), as then in force, which were as follows:

35. [55]

    Three factors indicate that ARM is of no assistance in construing s 5B(d). First, this particular Victorian Act did not separate a gateway provision setting out conditions of engagement of the power to make an order from the provision empowering the court to make an order or refuse the application. Thus, s 11 did not reflect the structure found in s 5B and s 9 of the New South Wales legislation.

36. [56]

    Secondly, the inference that the Court relied upon was not drawn from s 11, but from s 14(1), which finds its nearest equivalent in s 10 of the Act. Had reliance been placed on s 11(1), it should be noted that the Court construed “likely” as meaning “more likely than not”, a construction not available under s 5D of the New South Wales Act.

37. [57]

    Thirdly, the constraint on the proper exercise of the power to limit the duration of the order was merely “implicit” in s 14 and was not a matter of dispute. In fact, as in Bugmy, nothing would have turned on this consideration beyond providing a structure for the judgment. The Court held that, on the evidence, the eight year supervision order imposed by the primary judge did not exceed the implicit limitation contained in s 14.

38. [58]

    In short, there was nothing in the existing case law which supported the construction of s 5B(d) contended for by the applicant.

39. [59]

    It may be accepted that the language of s 5B(d) requires a forward-looking assessment in order to determine whether, when the order is to be made, there is an unacceptable risk of further offending. It may also be accepted that ARM provides some support for the proposition that, at least in Victoria under earlier legislation, the courts did not experience great difficulty in formulating opinions at the time an offender was due for release from prison as to the period during which he was likely to commit further offences. Nevertheless, to form an opinion as to when that risk will diminish so that the offender would no longer satisfy the terms of s 5B(d) is not an exercise expressly provided for, nor implicit in, the terms of s 5B(d). Rather, both the language of the provision and the structure of the legislation demonstrate clearly that there is no such limitation in determining the conditions which engage the power to impose the order. Such considerations, though not required to be specifically determined at the level of “a high degree of probability”, but rather at the level of “likelihood of the offender committing a further serious offence” are found in s 9(3). That provision specifies a number of mandatory considerations to be taken into account in determining whether to make an extended supervision order and, at least by implication, the term of the order and, pursuant to s 11, the conditions with which the offender must comply.

40. [60]

    Ground 1 should be rejected.

Ground 2 – evidential error

1. [61]

   The applicant submitted that, in determining to impose an extended supervision order for a period of three years, the judge had relied upon the evidence of the court appointed psychiatrist, Dr Andrew Ellis, as set out in his written report, but failed to take account of a qualification by way of concession in his oral evidence. The concession was material because the primary judge had “framed the competing positions between the parties in relation to duration as a contest between the opinions of Dr Ellis and Mr Sheehan”, [29] Mr Sheehan being the psychologist appointed by the Court. Dr Ellis had favoured a three year period; Mr Sheehan a two year period.

2. [62]

   The reasoning of the trial judge with respect to the issue of duration was concisely stated in the following paragraphs: [30]

3. [63]

   A better reading of this passage is that the parties had identified the competing positions in the terms noted; the judge had regard to the evidence of both experts in forming his own view that three years was the appropriate period. He did not reject Mr Sheehan’s opinion, but merely noted that it was cautiously expressed. Neither did he simply prefer and adopt what Dr Ellis had said in his report.

4. [64]

   It is convenient to set out in a little more detail how each expert formulated his conclusions and recommendations. Mr Sheehan noted that:

5. [65]

   Dr Ellis noted that the applicant’s “risk profile is chronic, however, currently contained by the present regime.” He continued:

6. [66]

   Oral evidence was given jointly by the two experts. Counsel for the State first raised a number of questions with Mr Sheehan as to why he considered two years might be sufficient to achieve more enduring community adjustment. He then turned to Dr Ellis and asked if he agreed “that a period of two years may be sufficient given … the time lapse between his previous offending”; Dr Ellis responded:

7. [67]

   Counsel for the applicant did not take the question of duration any further in his questioning of the experts; his written submissions, concededly prepared before the evidence was taken, were directed to the written reports of Dr Ellis and Mr Sheehan. However, no reliance was placed upon any suggested qualification of Dr Ellis’ position in oral submissions.

8. [68]

   Taken in context, it is not at all clear that Dr Ellis was qualifying his earlier position that three years was a reasonable and appropriate period for an extended supervision order in this case. Unless reliance was placed upon the oral evidence as carrying some stronger inference for the applicant, there was no error in the primary judge not referring to it or placing weight upon it.

9. [69]

   Ground 2 should be rejected.

Ground 3 – three year ESO not open

1. [70]

   Ground 3 stated that a three year extended supervision order was not available as a matter of law in the present case. It depended upon acceptance of the construction of s 5B(d) relied upon in ground 1, together with an analysis of the relevant evidence. If ground 1 were to be rejected, the applicant conceded that ground 3 would fail. Ground 1 has been rejected, as has the analysis of the evidence suggested by ground 2. Accordingly there is no further matter to be considered in relation to ground 3.

Conclusion

1. [71]

   It follows that the appeal must be dismissed. No costs order can be made against an applicant and therefore no order for costs should be made in this case. The Court should make the following orders:

   1. (1)

      Grant the applicant leave to appeal from the extended supervision order made in the Common Law Division on 23 March 2020.

   2. (2)

      Dismiss the appeal.

2. [72]

   McCALLUM JA: I agree with Basten JA.

3. [73]

   SIMPSON AJA: I agree with Basten JA.