State of NSW v NW

1. [1]

   HIS HONOUR: The defendant is a 26 year old man who committed a number of sex offences against five children who were known to him and his family over a period of two and a half years when he was aged between 15 and 17 years. He was convicted in June 2010 and sentenced to an overall term of imprisonment of 9 years and 9 months. These are State sex offences. The defendant’s parole for those matters expired on 13 November 2018.

2. [2]

   Whilst subject to parole, the defendant was charged on 7 August 2016 with a Commonwealth offence of using a carriage service to access child pornography, contrary to s 474.19(1) of the Commonwealth Criminal Code. That is an “offence of a sexual nature” as defined in s 5(2)(h4) of the Crimes (High Risk offenders) Act 2006. The defendant was sentenced for this offence by her Honour Judge Yehia DCJ on 11 August 2017 when her Honour made the following orders:

3. [3]

   Despite the apparent tension between some portions of her Honour’s orders, it is accepted that the defendant was required to serve 15 months of his sentence and that he was released on a recognizance release order thereafter. The recognizance release order imposed by her Honour is due to expire on 8 November 2019.

4. [4]

   The defendant has also been convicted of two breaches of s 17(1) of the Child Protection (Offenders Registration) Act 2000 committed on 3 June 2016, for which concurrent 12 month good behaviour bonds pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 were imposed. Those bonds have now expired.

5. [5]

   By summons filed on 31 October 2018, the plaintiff seeks a series of orders pursuant to the Crimes (High Risk Offenders) Act. For present purposes, only an order pursuant to s 7(4) of that Act is pressed. The relief claimed is in these terms:

6. [6]

   1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006:

7. [7]

   The defendant concedes that the evidence supports a finding, subject to my view, that there is a high degree of probability that he poses an unacceptable risk of committing another serious offence if not kept under supervision in accordance with s 5B of the Act. This concession might in practical terms appear to retreat in significance in the current circumstances having regard to the fact that the plaintiff does not presently seek an interim supervision order pending assessment of the defendant pursuant to s 7(4) of the Act. However, the terms of s 7(4) of the Act mandate that, in a preliminary hearing, the Court must itself be satisfied that the matters alleged in the documentation supporting the application would, if proved, justify the making of an extended supervision order. This is dealt with later in these reasons.

8. [8]

   In the meantime, as a preliminary matter, and in response to the application for any relief, the defendant contends that the summons was filed beyond the period of nine months for which s 6(1) of the Act provides. That section is in the following relevant terms:

9. [9]

   It is not in doubt that at the time when the summons was filed, the defendant was a supervised offender: although he had by then been released on the recognizance release order, his head sentence had not yet expired. It is also not in doubt that the summons was filed within the period of nine months before the expiration of the head sentence on 8 May 2019. However, as will be apparent, the recognizance release order expires six months later than the defendant's head sentence. The question that arises in these circumstances is whether the period of nine months referred to in s 6(1) of the Crimes (High Risk Offenders) Act is measured by reference to the expiration of the head sentence or the expiration of the recognizance release order. The answer to that question depends upon whether the defendant remains a supervised offender only during the currency of his head sentence or whether he remains a supervised offender after the expiration of his head sentence and up until the expiration of the recognizance release order.

Relevant statutory provisions

1. [10]

   Section 5I of the Crimes (High Risk Offenders) Act provides as follows:

2. [11]

   Section 20 of the Commonwealth Crimes Act 1914 provides as follows:

3. [12]

   Clearly in this case, her Honour sentenced the defendant to imprisonment for 2 years and 3 months but directed by order that he be released, upon giving security of the specified kind, after he had served a period of 15 months of that sentence in accordance with s 20(1)(b) of the Act.

Consideration

1. [13]

   The defendant submitted that he is the subject of a recognizance release order and was subject to it when the summons was filed. Adopting the analysis of Walton J in State of New South Wales v TT (Preliminary) [2017] NSWSC 1797, the defendant was serving a sentence of imprisonment for an offence of a sexual nature as a result of being on a recognizance imposed under s 20(1)(a) of the Crimes Act 1914. In addition, it was a condition of his recognizance that he be supervised by Community Corrections. As such he also falls within the term “serving a sentence of imprisonment” in s 5I(3) because of the extended meaning of the word “parole”. As a result, the defendant’s “current custody or supervision” was pursuant to the recognizance release order imposed by her Honour.

2. [14]

   Accepting that analysis, the defendant contended that the summons was filed prematurely. More particularly, the period of the recognizance release order to which the defendant is subject does not end until 18 months after it commenced on 8 May 2018, which is 8 November 2019. In order to comply with s 6(1), the plaintiff was required to file its summons on or after 8 February 2019 but failed to do so.

3. [15]

   The plaintiff emphasised that s 6(1) of the Crimes (High Risk Offenders) Act required the application to be filed within the last nine months of an offender’s “current custody or supervision” as that phrase is defined in s 5I(2) of the Act. An offender in s 6(1) must necessarily be a “supervised offender” in s 5I and a supervised offender includes an offender who, when the application was filed, was in custody or supervision while serving a sentence of imprisonment for an offence of a sexual nature: s 5I(2)(a)(ii). Therefore, according to this submission, the application must be filed within the last nine months of the defendant’s custody or supervision while serving a sentence of imprisonment. This argument proceeds upon the basis that it is the head sentence that determines whether the defendant was under supervision while serving a sentence of imprisonment. Any period of supervision, so called, outside or beyond the expiration of the head sentence is not supervision while serving a sentence of imprisonment.

4. [16]

   In support of these contentions, the plaintiff examined the way in which recognizance release orders ought properly to be characterised. It conceded that such an order “is part of the term of imprisonment”. For example, the following extract from the judgment of Gibbs ACJ in R v Carngham (1978) 140 CLR 487; [1978] HCA 48 at 492-493 was relied upon in support of that proposition:

5. [17]

   Walton J followed and applied this decision in TT as follows:

6. [18]

   The issue was also considered by the Supreme Court of the ACT in Fowler v Matias (2006) 204 FLR 115; [2006] ACTSC 106 in these terms:

7. [19]

   It is clear that a recognizance release order may contain or impose conditions upon a defendant that extend beyond the term of the head sentence. For example, in R v Smith [2004] QCA 417, McMurdo P in the Queensland Court of Appeal said this:

8. [20]

   This approach was confirmed by Grove J in the Court of Criminal Appeal in Johnsson v The Queen [2007] NSWCCA 192 as follows:

9. [21]

   The matter was also discussed in Fowler v Matias as follows:

10. [22]

    In the present case, the term of the recognizance release order exceeded the term of the head sentence by six months. It is therefore the characterisation of the defendant’s status during that period that is in question.

11. [23]

    The plaintiff argued in the light of these authorities and statutory provisions that the defendant will not still be serving a sentence of imprisonment, and accordingly will not be a supervised offender, when his head sentence expires. I agree.

12. [24]

    Her Honour specifically and in terms sentenced the defendant to a term of imprisonment of 2 years and 3 months. She did not sentence him to imprisonment for 2 years and 9 months. It seems clear that the defendant will on any view be a supervised offender in the period of three months prior to the expiration of his head sentence. Accordingly, when that sentence expires he will be at liberty in the community subject only to the then subsisting and enduring conditions of the recognizance release order but not vulnerable to the prospect of being returned to custody in order to serve out the balance of his sentence. Whether the defendant would also potentially be liable to imprisonment for breach of any of the enduring conditions is not to the point of his status after the expiration of his sentence. He will not, in my opinion, then be or remain a person who is still serving a sentence of imprisonment. The fact that the defendant may be under “supervision” in the sense that he is subject to continuing conditions imposed as part of his recognizance release order does not mean that he is also therefore still serving a sentence of imprisonment. The authorities that explain that a recognizance release order equates to a sentence of imprisonment during the currency of the term of a sentence do not support the obverse proposition that any period by which a recognizance release order exceeds the term of the sentence of imprisonment is also a sentence of imprisonment.

13. [25]

    Moreover, such an interpretation would in my view offend the natural and ordinary meaning of the expression “a sentence of imprisonment”. In Botany Municipal Council v Jackson (1985) 2 NSWLR 1 at 6-7, Kirby P offered the following caution:

14. [26]

    In R v Warfield (1995) 34 NSWLR 200 at 205-206, Hunt CJ at CL described the ordinary meaning of “sentence” as “an order which ‘definitely disposes of the consequences of the conviction’ or ‘a definitive decision by the judge on the punishment or absence of it which is to be the consequences of the conviction’.” His Honour referred to Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44; see also R v Novakovic (2007) 17 VR 21 at 29.

15. [27]

    In Winsor v Boaden (1953) 90 CLR 345; [1953] HCA 46 at 347 (also cited by Kirby P in Jackson), Dixon CJ said this at 347:

16. [28]

    The plaintiff contended that this approach appeared to bring the concept of “sentence of imprisonment” within the ordinary meaning of “imprison” being “to put into or confine in a prison” or “detain in custody” and “to shut up as if in a prison” or “hold in restraint”: Macquarie Dictionary. In Kennedy v Spratt [1972] AC 83, Lord Diplock said at 98 that “the natural meaning of the words ‘shall be sentenced to imprisonment’ is that he shall be punished for that offence by being sent to prison”.

17. [29]

    By analogy, the terms of s 16F(2)(a) of the Crimes Act 1914 implicitly reinforce this approach. That provision is as follows:

18. [30]

    It is instructive to observe that paragraph (a) refers to a period of service in the community equal to the balance of the sentence, not a period that is equal to the length of the term of the recognizance release order. The paragraph makes it clear that an explanation must be given that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any) specified in the order and a period of service in the community equal to the balance of the sentence. I consider that the expression “the balance of the sentence” is an unambiguous reference to the period expiring at the conclusion of the head sentence. It is not in terms or by implication a reference to a period that includes or extends to some other longer additional period during which a defendant may be subject to conditions imposed as part of a recognizance release order and which continue to apply beyond the term of the sentence. The continued operation of the imposed conditions into this period after the expiration of the head sentence does not mean that a defendant subject to those conditions during that period is also serving a sentence of imprisonment.

19. [31]

    Finally in this context, it seems to me that reliance by the defendant upon the decision of Walton J in TT is misplaced. His Honour’s decision correctly deals with the question of whether a person on a recognizance release order being served before the expiration of the head sentence is nonetheless a supervised offender, that is, in current custody or under supervision while serving a sentence of imprisonment. His conclusion that the person was a supervised offender in those circumstances is unexceptionable. His Honour’s decision does not deal with the different question of whether a person on a continuing or enduring recognizance release order remains a supervised offender after the head sentence expires.

20. [32]

    In my opinion, the defendant will neither be relevantly in custody nor under supervision after the expiration of his head sentence on 8 May 2019. It follows that the summons was filed within the last nine months of the defendant’s current custody or supervision.

Section 7(4) of the Crimes (High Risk Offenders) Act

1. [33]

   Section 7(4) of the Act provides as follows:

2. [34]

   Although the requirement for appointing psychiatrists or psychologists to conduct separate examinations of an offender is expressed in mandatory terms, the requirement to do so is conditional upon the conduct of a preliminary hearing. In the present case, although the plaintiff formally read a series of affidavits and tendered certain exhibits that I understand will be the documentation supporting the application for an extended supervision order, in no real sense did I conduct, nor was I asked to conduct, a preliminary hearing of the type which the sub-section appears to contemplate. Indeed, the defendant’s written submissions, which were not the subject of elaboration or argument before me, propose a postponement of the preliminary hearing until a time closer to the expiration of the defendant’s recognizance release order and the cessation of the operation of the conditions which it imposes.

3. [35]

   As I have earlier indicated, the defendant did not oppose the appointment of specialists as anticipated by s 7(4) and consented to the order sought in paragraph 1 of the summons. It seems to me in those circumstances that I should make that order without proceeding to consider or determine whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. Indeed, having regard to the way in which the matter proceeded before me, I do not consider that I have conducted the preliminary hearing to which the subsection refers and it would be inappropriate to make any such determination or assessment at this stage.

Orders

1. [36]

   Accordingly, upon receipt of the names of the practitioners concerned, I will make an order pursuant to s 7(4) of the Act for the appointment of psychiatrists or psychologists (as the case may be) to examine the defendant and an order that they furnish reports to the Court, as well as an order that the defendant attend to be examined by them.