State of New South Wales v Vincent (Preliminary) (No 2)

1. [1]

   HIS HONOUR: The plaintiff, the State of New South Wales, commenced proceedings by summons filed on 8 April 2020 against the defendant, Aaron Vincent, seeking interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The summons sought orders that the defendant be subject to an interim detention order (“IDO”) for a period of 28 days, renewed every 28 days for a maximum period of 3 months or until the proceedings are finally determined. By way of final relief, the summons sought a continuing detention order (“CDO”) for a period of 2 years, followed by an extended supervision order (“ESO”) for a period of 5 years after the expiration of the CDO. Orders are also sought that two qualified psychiatrists and/or psychologists be appointed to separately examine the defendant and furnish reports to the Court, that the defendant be ordered to attend the examinations, and finally, that access only be granted to the Court’s file to a non-party with leave of a judge of this Court and with prior notice to the parties and an opportunity for them to be heard.

2. [2]

   An ESO has previously been made in respect of the defendant, on 30 June 2017: State of NSW v Vincent [2017] NSWSC 858. The defendant was in custody at the time, and has continually been in custody since. Consequently, the operation of that ESO has been suspended since its imposition.

3. [3]

   The defendant is serving three partly concurrent sentences imposed on 29 June 2018 for three counts of using a carriage service to menace, harass or offend, contrary to s 474.17(1) of the Criminal Code (Cth) (“use carriage service”), being two sentences of 1 year and 11 months and one sentence of 1 year and 10 months. The overall sentence imposed was 3 years’ imprisonment, commencing on 28 April 2018 and concluding on 27 April 2021. The sentencing judge ordered that he be released on entering into a recognizance release order for 2 years, commencing on 27 April 2020, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). The order provided for supervision by the New South Wales Probation Service. Accordingly, the recognizance would extend for 12 months beyond the expiration of the period of imprisonment. The defendant has outstanding charges which are presently at the committal stage, before Wellington Local Court. He has not applied for bail in respect of those charges.

4. [4]

   The application subject of these proceedings was heard by me on 20 April 2020. In written submissions prior to the hearing and in oral submissions at the hearing itself, the orders sought for the IDO, for the appointment of forensic experts to prepare reports for the final hearing, and for access to the court file to be restricted, were not opposed by the defendant. Accordingly, it remained for me to determine whether I was independently satisfied of certain matters if I was to make orders in the terms sought. However, at the hearing, counsel for the defendant identified an issue in respect of a threshold matter, which is that an application for a CDO can only be made in respect of either a “detained offender” or a “supervised offender”, as those terms are defined in the Act, and it was not clear that the defendant was either. Once alerted to the issue, counsel for the plaintiff sought leave to address it in further written submissions. I granted leave to both parties to do so.

5. [5]

   Although those written submissions were received in my Chambers, they were overlooked, and in the judgment which I delivered on 7 May 2020, they were not considered. They have since been drawn to my attention. Pursuant to r 36.16(3B) of the Uniform Civil Procedure Rules 2005 (NSW), I set aside my earlier judgment and the accompanying orders for that reason. See also Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 per Mason CJ at 302-303.

6. [6]

   In view of the determinative significance of the threshold requirements of the Act to this application, at the outset I will consider whether the application conforms with those requirements.

Relevant provisions of the Act

1. [7]

   Section 18A of the Act relevantly provides as follows:

2. [8]

   I am satisfied that, at the time of the hearing, s 18A(a) was made out; the defendant was in custody at least until the next mention date of his current matters. Section 18A(b) entails a consideration of the legislative requirements for a CDO or ESO, and the material that is tendered by the plaintiff in support of the CDO. In respect of the making of a CDO, s 5C of the Act provides:

3. [9]

   A “serious offence” is defined to include “a serious sex offence” (s 4), which, in turn, is defined to include an offence under Div 10 of Pt 3 of the Crimes Act 1900 (NSW), which, in the case of an offence against an adult or a child, is punishable by imprisonment for 7 years or more (s 5(1)(a)(i)). The defendant was convicted of such an offence, pursuant to s 66C(3) of the Crimes Act, on 25 February 2015.

4. [10]

   As to whether the defendant is a detained offender or a supervised offender, as required by s 5C(b), s 13B provides:

5. [11]

   Section 12 provides:

The parties’ submissions on the threshold issues

1. [12]

   The plaintiff submitted in written and oral submissions prior to the hearing that the defendant meets the definition of both “detained offender” and “supervised offender” under s 13B. It submitted that the defendant qualified as a “detained offender” pursuant to s 13B(2)(a)(iv) of the Act, because he is serving a sentence of imprisonment for an offence which is being served consecutively with a sentence of imprisonment for an offence against s 12 of the Act. However, in subsequent written submissions, the plaintiff accepted that the defendant is not a “detained offender”, but contended that he is a “supervised offender” pursuant to s 13B(4)(b), because at the time the application was filed, he was in “lawful custody” as defined in s 4(2) of the Act (being on remand for the charges which are before the Local Court at Wellington), and because his obligations under the ESO imposed by Harrison J on 30 June 2017 had been suspended. The defendant accepts that he qualifies as a “supervised offender” pursuant to s 13B(4)(b), for the same reasons advanced by the plaintiff. I concur with that conclusion.

2. [13]

   The plaintiff further submits that s 13B(5) is satisfied by the summons having been filed before the defendant was to be released pursuant to the recognizance release order on 27 April 2020, since the term “total sentence” in ss 13B(3) and (5) “pick up” the expression “sentence of imprisonment” in ss 13B(2) and (5), so as to refer only to the custodial part of a sentence.

3. [14]

   The defendant disputes that s 13B(5) is satisfied, submitting that the expression “total sentence” in ss 13B(3) and (5) has its ordinary meaning, which is ”well-known to the courts”, and does not mean only the part of a sentence of imprisonment that is comprised by the period in custody. Therefore, the defendant’s “total sentence” does not expire until the expiration of the recognizance release order, on 27 April 2021, meaning that the application for a CDO does not come within s 13B(5), since it was made more than nine months before the total sentence expires, and must fail.

4. [15]

   In support of this interpretation, the defendant relies upon decisions of this Court that consider the meaning of the expression “sentence of imprisonment” in the counterpart provision of the Act for applications for an ESO, s 5I, which provides as follows:

5. [16]

   In State of New South Wales v TT (Preliminary) [2017] NSWSC 1797, Walton J considered a summons seeking orders that the defendant be subject to an ESO and, pending the final hearing of that application, an interim supervision order (“ISO”). Walton J was required to consider the application for the ISO, and certain other related proposed orders. The application was opposed. At the time that the summons was filed, on 14 November 2017, the defendant was serving a sentence following convictions for three counts of use carriage service. On each count, he had been sentenced to 18 months’ imprisonment with the commencement date of the sentence for the first count being 4 February 2016 and the other two sentences staggered three months apart, so that the effective sentence was 2 years’ imprisonment, expiring on 3 February 2018.

6. [17]

   The sentencing judge had ordered that, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the defendant was to be released on a recognizance after serving 1 year and 2 months of the sentence, which was on 3 April 2017. Accordingly, the defendant had been residing in the community for about seven months at the time that the summons was filed. Walton J considered, therefore, whether the application complied with s 5I(2)(a), since the defendant was not in custody at the time the summons was filed.

7. [18]

   Section 20(1)(b) of the Crimes Act 1914 provides as follows:

8. [19]

   Walton J concluded that, although the defendant was not incarcerated at the relevant time, he was nevertheless still “serving a sentence of imprisonment”. His Honour found support for this conclusion in R v Carngham (1978) 140 CLR 487; [1978] HCA 48, in which Gibbs ACJ found that, for the purposes of s 5D of the Criminal Appeal Act 1912 (NSW), a sentence for a Commonwealth offence that incorporates a conditional release component is nevertheless a sentence of imprisonment. Section 5D of the Criminal Appeal Act provided, at that time:

9. [20]

   The definition of “sentence” in s 2 included:

10. [21]

    Gibbs ACJ (Stephen and Aickin JJ agreeing) stated, at 492-3:

11. [22]

    Walton J found, at [38], that although the High Court was considering the word “sentence” in a different legislative context, it was understood to mean a sentence of imprisonment. His Honour also noted, at [39], that in Weetra v Beshara (1987) 46 SASR 484, the Full Court of the Supreme Court of South Australia held that a sentence of 6 months’ imprisonment, in which the sentencing court had ordered the offender’s immediate release pursuant to s 20(1)(b) of the Crimes Act 1914, nevertheless was a “sentence of imprisonment”.

12. [23]

    As to the meaning of s 5I(3) of the Act, Walton J said, at [43]:

13. [24]

    In State of New South Wales v NW [2019] NSWSC 415, which concerned a preliminary hearing of an application for an ESO pursuant to the Act, Harrison J considered whether the application was brought within the relevant time pursuant to s 6(1) of the Act, which is in the following terms:

14. [25]

    At the time of filing of the summons, the defendant was serving the recognizance release order part of a sentence of imprisonment imposed for a Commonwealth offence. The term of the recognizance release order exceeded the balance of the sentence of imprisonment. The sentencing judge had expressed the sentence to be “a term of imprisonment of 2 years and 3 months”. Her Honour directed that the defendant “be released at the expiration of 15 months of [the] sentence on 8 May 2018 upon … entering a recognizance release order for a period of 18 months in the sum of $500”. Accordingly, the sentence of imprisonment would expire six months before the expiration of the recognizance release order, which Harrison J, at [19], accepted to be a permissible sentencing option.

15. [26]

    The application was filed within nine months of the expiration of what Harrison J termed “the head sentence” of 2 years 3 months, but not within nine months of the expiration of the recognizance release order. Accordingly, there was a question as to whether the period of nine months referred to in s 6(1) of the Act was to be measured by reference to the expiration of the head sentence or of the recognizance release order.

16. [27]

    The defendant in that case submitted that, adopting the analysis of Walton J in State of New South Wales v TT, at the relevant time he was serving a sentence of imprisonment for the Commonwealth offence and therefore the application was premature pursuant to s 6(1) of the Act. The plaintiff submitted that at the time of the application, in conformity with s 5I(2)(a)(ii) of the Act, the defendant was “in custody or supervision … while serving a sentence of imprisonment”, for “an offence of a sexual nature” and that the “sentence of imprisonment” ceased six months before the expiration of the recognizance release order.

17. [28]

    Harrison J noted that the plaintiff’s argument:

18. [29]

    The plaintiff submitted that once the head sentence expired, the defendant was no longer serving a “sentence of imprisonment” and therefore was not a “supervised offender” as defined at s 5I of the Act. Harrison J accepted this analysis.

19. [30]

    In the instant case, the defendant submits that it is clear from both State of New South Wales v TT and State of New South Wales v NW that any recognizance release order made in respect of a sentence of imprisonment pursuant to s 20(1)(b) of the Crimes Act 1914 is a part of that sentence of imprisonment up to the date of the expiration of “the head sentence”, to adopt Harrison J’s terminology. Therefore, it follows that the application does not comply with s 13B(5) of the Act, because the “total sentence”, that is, the 3 years from the commencement date of the sentence of imprisonment, does not expire until a period of about 12 months after the summons was filed.

20. [31]

    The plaintiff acknowledges that its proposed meaning of “sentence of imprisonment” is different from what it was found to be in State of New South Wales v TT and State of New South Wales v NW, but seeks to distinguish those cases by pointing to textual differences between s 13B and s 5I that, it submits, warrant a different interpretation of the phrase. Section 13B(2), which concerns a “detained offender”, is predicated on the offender being in one of the four forms of custody enumerated at s 13B(2)(a) at the time of the application, the last of which (subs (2)(a)(iv)) involves a sentence which is being served “concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment … referred to in subparagraph (i), (ii) or (iii)”. The term “total sentence”, therefore, in subs (3)(a), is necessary because of the combined sentences referred to in subs (2)(a)(iv).

21. [32]

    Another textual difference advanced by the plaintiff is that, in s 5I, there is not a similar focus on the offender being in custody at the time of the application. Rather, s 5I(2) has a more expansive definition of “supervised offender” than that which appears in s 13B(4) of the Act. As well, s 5I(3), which has no equivalent provision in s 13B, provides textual support for the determinations in State of New South Wales v TT and State of New South Wales v NW that the expression “sentence of imprisonment” includes the part of a sentence that is served in the community.

22. [33]

    The plaintiff submits that in s 16F of the Crimes Act 1914, the differences in the explanations to be given to offenders by a sentencing court when they receive a non-parole period are consistent with a legislative intention that a recognizance release order is not equated with a period of imprisonment. Section 16F(1)(a) requires an explanation:

23. [34]

    Section 16F(2)(a) requires an explanation:

24. [35]

    The plaintiff submits that, adopting a purposive approach to the Act, the interpretation of “total sentence” that is propounded by the defendant would thwart the apparent legislative intention, since an offender who was about to be released on a recognizance release order for a period of nine months or more could not be the subject of an application for a CDO. Once so released, they could not be the subject of an application for a CDO unless they qualified as a “supervised offender” and then not until within nine months of the expiration of the total sentence, pursuant to s 13B(5). The plaintiff submits that this interpretation would constitute “a significant gap in the operation of the Act”.

Consideration

1. [36]

   The term “total sentence” appears twice in the Act, in ss 13B(3) and (5). It was introduced into an earlier form of the Act, being the Crimes (Serious Sex Offenders) Act 2006 (NSW), by the Crimes (Serious Sex Offenders) Amendment Act 2010 (NSW). However, it is appropriate to consider the meaning of the term in the context of the purpose of that legislation since it was originally enacted in 2006.

2. [37]

   In the second reading speech for the Crimes (Serious Sex Offenders) Bill 2006, the Minister for Police, the Hon Carl Scully, explained the need for the legislation as follows:

3. [38]

   It is apparent that the legislative intention when the Act was first passed was that a CDO would be available as an option only if, by the time that the head sentence had expired, the offender had not qualified for parole and therefore would be released back into the community, and without supervision. The relevant provision of the Crimes (Serious Sex Offenders) Act 2006 (NSW) at the time was as follows:

4. [39]

   In the original Act, the definitions of “serious sex offence” and an “offence of a sexual nature” did not include Commonwealth offences; it only applied to state offences.

5. [40]

   In 2009, the New South Wales Sentencing Council published a report examining the operation of the Crimes (Serious Sex Offenders) Act 2006, and made recommendations for its amendment: New South Wales, Sentencing Council, Penalties Relating to Sexual Assault Offences in New South Wales (Volume 3, May 2009) (“the Report”). One of the concerns the Report identified was that it was unclear when the six month period in s 14(2), and in s 6(2), which was the counterpart provision for ESOs, commenced. The Report recommended that the Act be amended to make clear that it referred to a period of six months from the expiration of the “total sentence”. It hypothesised that the rationale for not permitting an intervention before that time, was that other legislative schemes ensured that the community was not endangered by an offender who had been conditionally released before the expiration of the total sentence. The Report stated:

6. [41]

   The New South Wales government accepted the Report’s recommendation, as was evidenced in an amendment to s 14 which was introduced by the Crimes (Serious Sex Offenders) Amendment Act 2010 (NSW):

7. [42]

   In the second reading speech for that amending Act, the Attorney General of New South Wales, the Hon John Hatzistergos, acknowledged the government’s acceptance of the Sentencing Council’s recommendation and explained:

8. [43]

   In 2013, the Crimes (Serious Sex Offenders) Act 2006 was amended and renamed as the Crimes (High Risk Offenders) Act 2006, which is the current name of the Act. The amendments expanded the legislative scheme to allow for the continued detention and extended supervision of high risk violent offenders. Section 14(2A) was essentially retained in the same form, at s 13B(3) in relation to high risk sex offenders, and at s 13C(3) in relation to high risk violent offenders.

9. [44]

   In 2017, the scheme was again expanded by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW), to introduce relevant Commonwealth offences into the definitions of “serious sex offence” and an “offence of a sexual nature”. In addition, ss 5I and 13B were introduced in their current form, thus merging the temporal provision concerning the filing of the application of a CDO for both types of high risk offenders into s 13B(3) of the Act.

10. [45]

    The first proposition in the plaintiff’s argument that the term “total sentence” refers only to the custodial element of a sentence, is that it “picks up” the expression “sentence of imprisonment” in ss 13B(2) and (5), in particular, that the term is a convenient means of referring to the custodial element of the ultimate sentence fashioned through the meshing of concurrent or consecutive, or partly concurrent and partly consecutive, sentences when one or more of them is a sentence of the type identified in ss 13B(2)(a)(i)-(iii).

11. [46]

    The interpretation of “sentence of imprisonment” which is advanced by the plaintiff, meaning only the custodial part of the sentence, would entail two quite different meanings being attributed to the same expression in different parts of the Act, since its meaning in the context of s 5I refers to the whole sentence and therefore includes any part of that sentence that is served in the community, as highlighted by State of New South Wales v TT and State of New South Wales v NW.

12. [47]

    In D151 and Others v New South Wales Crime Commission (2017) 94 NSWLR 738; [2017] NSWCA 143 at [72], Simpson JA (Beazley ACJ agreeing), said:

13. [48]

    The words in question should be construed consistently with the language and terms of the statute, and by reference to the language of the instrument viewed as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (McHugh, Gummow, Kirby and Hayne JJ).

14. [49]

    The question then, is whether the textual and purposive interpretations advanced by the plaintiff as to the meaning of “sentence of imprisonment” in s 13B of the Act provide a sufficient reason to depart from the meaning of the same expression as it has been found previously, and accepted by the plaintiff to be, in s 5I of the Act. This must be viewed against the backdrop of the Act viewed as a whole.

15. [50]

    I note that the plaintiff’s argument, that the term “total sentence” means only the part of the sentence served in custody, is at odds with the everyday meaning of the word “total”, which is defined in the Macquarie Dictionary to mean “constituting or comprising the whole; entire; whole” and in the Australian Oxford Dictionary to mean “complete, comprising the whole”. The term “total sentence” appears in the Terrorism (High Risk Offenders) Act 2017 (NSW) at ss 37(2) and (3), in a similar context to its use in the Act. It does not appear in current New South Wales legislation relating to appeals or sentencing (other than the Drug Court Act 1998 (NSW) at s 5A(1)(b)(ii)), or in Commonwealth sentencing legislation. However, as a matter of judicial notice, I take into account that the use of the term “total sentence” in New South Wales sentencing procedure is commonplace; it is understood and applied in criminal courts as meaning the whole of a sentence, being the sum of the non-parole period and the balance of the term.

16. [51]

    The extrinsic material of the second reading speeches and the Report containing the recommendation of the New South Wales Sentencing Council, as acknowledged in the Attorney General’s second reading speech, confirms the ordinary meaning of the term “total sentence” and the purpose of the legislation: ss 33 and 34 of the Interpretation Act 1987 (NSW). As is apparent from the historical overview, the term “total sentence” was introduced in 2010 to clarify that the time within which the application must be filed is to be measured back from the date that the whole sentence expires, thus underscoring the proposition that an application for a CDO cannot be filed more than nine months from the date of expiration of the whole sentence of imprisonment, including any component served as conditional liberty in the community.

17. [52]

    The plaintiff’s purposive approach to the interpretation of the words “total sentence”, and “sentence of imprisonment” overlooks the similarities between conditional liberty pursuant to a recognizance release order for a Commonwealth offence, and parole for a state or Commonwealth offence. When an offender is released to parole, the community is protected by the supervision of parole and the state’s authority to exercise powers to remedy breaches of conditions of parole, including the power to return the offender to custody to serve the balance of parole. Release subject to a recognizance release order for a Commonwealth offence protects the community in a similar fashion. If an offender breaches a recognizance release order, the options before the court dealing with the breach include returning the offender to prison to serve “that part of each sentence of imprisonment fixed under paragraph 20(1)(b) that the person had not served at the time of his or her release”: s 20A(5)(c)(i) of the Crimes Act 1914.

18. [53]

    As noted earlier, the legislative scheme is intended to supplement, rather than override, existing safeguards and mechanisms, in order to avoid the situation of an offender who had failed to qualify for parole by the time that the head sentence was to expire being released at all or without supervision, if they pose an immediate and significant threat to the safety of the community. Under the legislative scheme, a CDO or ESO could then be considered.

Conclusion

1. [54]

   For these reasons, I am of the opinion that the term “total sentence”, as it appears in ss 13B(3) and (5) of the Act, means the whole of the sentence of imprisonment, including any part of that sentence which is served in the community, such as a period of parole pursuant to s 44(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), or release subject to a recognizance release order made pursuant to s 20(1)(b) of the Crimes Act 1914.

2. [55]

   Accordingly, I am of the opinion that the defendant is a “supervised offender” as defined in s 13B(4)(b) of the Act, but that the application was not brought within nine months before the end of the defendant’s total sentence, and therefore the application does not comply with s 13B(5) of the Act.

3. [56]

   It is accepted by the plaintiff that the Court should not make orders at a preliminary hearing unless satisfied that the matters in the State’s supporting documentation would, if proved, establish the threshold requirements. Clearly my interpretation of the disputed term has the effect of the plaintiff failing to establish a threshold requirement. The application is premature, since it could not be lodged until 27 July 2020, being nine months prior to the expiration of the total sentence of 3 years’ imprisonment that commenced on 28 April 2018 and will expire on 27 April 2021.

4. [57]

   At the hearing of this matter, at which point the application for an IDO was not opposed and it was not contemplated by either party that the matter would not proceed to a final hearing, material tendered by the plaintiff was relied upon by the defendant to found a submission that the defendant was willing to partake in therapy whilst in custody that would reduce his risk of recidivism, thereby benefiting him and the community. The evidence was also to the effect that he did not come within the guidelines to be admitted into those programs. Having read the relevant reports, it appears to me that there is merit in that submission, and accordingly, mindful that relevant decisions concerning the use of such resources properly rests with the NSW Department of Corrective Services, I nonetheless respectfully recommend that the relevant authorities give consideration to facilitating the defendant’s admission to such programs, as soon as is reasonably possible.

5. [58]

   Finally, although the application is to be dismissed, I am of the view that access to the file should be restricted, for the same reasons that would apply if the application had progressed to a final hearing.

Orders

1. [59]

   I make orders as follows:

   1. (1)

      Set aside the orders made in respect of this matter on 7 May 2020.

   2. (2)

      Dismiss the summons filed by the plaintiff on 8 April 2020.

   3. (3)

      The plaintiff to pay the defendant’s costs.

   4. (4)

      Recommend that Corrective Services NSW facilitate and expedite the defendant’s commencement of therapeutic programs (such as RUSH and/or CUBIT) whilst he is in custody.

   5. (5)

      Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.