TSL v The Secretary to the Department of Justice
[2006] VSCA 19914 VR 109
166 A Crim R 69
(Judgment by: Coldrey AJA)
TSL
v The Secretary to the Department of Justice
Judges:
Callaway AP
Buchanan JA
Coldrey AJA
Subject References:
CRIMINAL LAW
Extended supervision order
Appellant sentenced in 2001 to four years and three months' imprisonment, with non-parole period of two years and three months, for ten relevant offences
Three previous convictions, from one court appearance, for relevant offences
meaning of "satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence"
Appeal provisions
Whether finding that appellant was likely to commit a relevant offence was flawed
Relationship between s 8, dealing with assessment reports, and s 11
Nature of decision under s 11(1)
Matters to consider in making a finding whether an offender is likely to commit a relevant offence
Choice between revoking extended supervision order and confirming decision of court below, there being no power to send case back for reconsideration
Extended supervision order revoked
Legislative References:
Serious Sex Offenders Monitoring Act 2005 - ss 1, 3, 4, 5, 8, 11, 12, 15, 16, 23, 24, 26, 36, 37, 38, 39, 40, 42
Corrections Act 1986 - s 69
Interpretation of Legislation Act 1984 - s 45
Sentencing Act 1991 - Part 2A, ss 6E, 18B
Charter of Human Rights and Responsibilities - s 7(2)
Other References:
(VIC) Serious Sex Offenders Monitoring Act 2005 ss 1, 3, 4, 5, 8, 11, 12, 15, 16, 23, 24, 26, 36, 37, 38, 39, 40, 42
(VIC) Corrections Act 1986 s 69
(VIC) Interpretation of Legislation Act 1984 s 45
(VIC) Sentencing Act 1991 Pt 2A, ss 6E, 18B
(CTH) Charter of Human Rights and Responsibilities s 7(2)
Judgment date: 4 September 2009
Judgment by:
Coldrey AJA
[47] I agree with the disposition of this matter proposed by Callaway AP for the reasons advanced by his Honour.
Counsel for the appellant: Mr P Higham
Counsel for the respondent: Mr D Grace QC
Solicitors for the appellant: Paul Vale Criminal Law
Solicitors for the respondent: Minter Ellison
Item 1 in the schedule.
Item 8 in the schedule.
The appellant admitted three previous convictions for indecent assault, from one court appearance in 1996. They satisfied the requirements of Item 1(a)(ii) of Sch 1 to the Sentencing Act 1991. See Pt 2A and, in particular, s 6E, of that Act. The sentencing remarks, as well as the order, clearly evince an intention to provide for partial concurrency.
Section 23.
Section 24.
See [1] above.
If there were any doubt about that, s 45 of the Interpretation of Legislation Act 1984 provides that, where the word "may" is used in conferring a power, it means that the power may be exercised, or not, at discretion. See also R v Moffatt [1998] 2 VR 229 at 234 per Winneke, P and 246-247 per Hayne JA.
Section 12(1) accordingly provides that an extended supervision order must state that the court making it is satisfied that the offender is likely to commit a relevant offence if released in the community in the circumstances referred to in s 11(1).
That is the function of those words, in a different context, in s 13(3) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Mr Grace, who referred us to Fardon v Attorney-General (Qld ) (2004) 78 ALJR 1519 at 1563 [225] in support of his submissions, rightly cautioned that the Queensland legislation was not the same. The same phrase in a different collocation of words is apt to have a different meaning.
I should add that this sentence illustrates the danger of using shorthand. It obscures the objection that the first reading in fact involves "a probability of a likelihood".
Boughey v R (1986) 161 CLR 10 at 20.
See, for example, "will commit", in connection with the word "risk", in s 8(2)(a).
At 21.
See [20] below.
Compare s 7(2) of the Charter of Human Rights and Responsibilities. The Charter of Human Rights and Responsibilities Act 2006 is not yet in force, but the nature of our society is a legitimate factor to take into account in construing the legislation.
Appendices 6 and 10 to the Static-99 Coding Rules (revised ed 2003), explained at 57 under the heading "Scoring the Static-99 & Computing the Risk Estimates", suggest that it would be unworkable if "likely" connoted a probability of more than 50%.
Compare McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [60] per Hayne J and see the cases referred to by Kirby J in Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 at fn 64.
In s 18B(1) of the Sentencing Act the words "high degree of probability" connote a standard of proof between the balance of probabilities and the criminal standard, but both the collocation of the words and the nature of the enquiry are different. Section 18B directs the attention of a sentencing judge to the question whether the offender is, at present, a serious danger to the community: see R v Carr [1996] 1 VR 585 at 592. Section 11(1), like s 8 and the Monitoring Act as a whole, directs attention to the question whether the offender is likely to commit a relevant offence in the future. Both the context and the function of the words are different.
Hansard, Legislative Assembly, 22nd February 2005, at 9 and 10; Hansard, Legislative Council, 24th February 2005, at 14 and 15.
Similarly, the outline of submissions filed on behalf of the Secretary in this Court said, "The appellant concedes that he was at risk of re-offending ... The issue is the degree of risk or, in the terms of s 11(1), whether there is a 'high degree of probability'."
Section 3.
There are limited exceptions in favour of the Secretary and the Chief Commissioner of Police.
Both her Honour's reasons and Ms Owen's report misdescribed two of the offences, probably those the subject of counts 4 and 7, as "indecent assault with a child under 16 years". The misdescription is not material in this case.
Order 2 does not apply either. Section 26 of the Monitoring Act provides that proceedings on an application under Part 2 are criminal in nature, except as otherwise provided by the Act. An appeal under Part 3 is therefore an appeal from a criminal proceeding, but it is not an appeal under Part VI of the Crimes Act. That is why the Court wears black robes, not red.
Form 6-2A, although even that would require considerable modification.
Section 38(2) requires the appellant to cause a copy of the notice of appeal to be served on the respondent as soon as practicable after giving notice of appeal to the Court of Appeal. That was not done in this case, but it should be done in future.
Section 40 makes failure to comply punishable by up to five years' imprisonment.
In other words, there would have been a paragraph saying that, if the Court of Appeal thinks that an order should have been made or renewed, it may either confirm the relevant decision or quash the decision and remit the matter to the court below with directions.
The Adult Parole Board is not bound by the rules of natural justice. The exclusion of the rules of natural justice is in s 69(2) of the Corrections Act 1986 and applies to the functions conferred on the Board by the Monitoring Act.
See [7] above.
(1936) 55 CLR 499 .
See Williams, Civil Procedure -- Victoria , at [64.01.120].
Section 15(2)(b).
Hansard, 22nd February 2005, at 9.
Section 4.
Section 10(6)(a).
Compare Fardon v Attorney-General (Qld ) at 1563 [226] per Callinan and Heydon JJ.
High-risk Offenders : Continued Detention and Supervision Orders, Community Issues Paper , Sentencing Advisory Council, August 2006. I am indebted to the Secretary who, through her counsel, provided us with a copy of Professor McSherry's paper.
At 1542 [124].
The seriousness of the offences that made the appellant an eligible offender may be gauged, in part, by the sentence that was imposed in 2001. In 1996 he was sentenced to a combination of a suspended sentence and a community-based order. He complied with the terms of the community-based order and did not breach the suspended sentence. See also [32] and [36] above.
Parliament might give consideration to amending s 39 so that the Court of Appeal may make such order as it thinks fit, including but not limited to the orders mentioned in s 39(1)(a), (b), (c) and (d). There would also need to be power to continue an extended supervision order, with or without modification, on an interim basis. Although the point has not arisen in this appeal, it would be useful for the Court of Appeal to have power to extend the period of 28 days mentioned in s 38(1) either before or after that period has expired.
The Court prohibited the publication of the content of any report or other document put before it on the appeal and any information that might enable the appellant to be identified.
As Callaway AP has pointed out, the "other relevant matters" referred to in paragraph 8(1)(g) are those matters relevant to the assessment to be made by the medical expert.
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