This case involved an application for a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003. There was a dispute as to whether a 2015 offence of deprivation of liberty was capable of being an offence of a sexual nature for the purposes of the Act. Notably, Davis J considered that it was the conduct constituting the offence not the offence as legally defined that had to be “of a sexual nature”. In other words, if the act constituting the deprivation of liberty was an “act of a sexual nature” then the offence of deprivation of liberty may be, as a matter of law, “an offence of a sexual nature involving violence”. On the facts in this case, as the respondent had been acquitted of allegations that he raped the complainant, his Honour concluded that the offence of deprivation of liberty was not “an offence of a sexual nature”.
16 August 2019
This case involved an application for a supervision order pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”). . In a previous hearing, Martin J had found that there were reasonable grounds for believing that the respondent was a serious danger to the community in the absence of an order under the Act. In this judgment, Davis J was required to determine whether final orders should be made, following the completion of several psychiatric reports. –.
Notably, the Act only applies to a prisoner, which is relevantly defined as including someone who is serving a period of imprisonment for a “serious sexual offence” (per s 5). The noteworthy aspect of this decision was the consideration given to when an offence may be “of a sexual nature” – and in particular, whether the offence of deprivation of liberty may meet that description. .
The respondents’ offending and the noteworthy issue
The respondent was serving a period of imprisonment for a series of offences in 2008, and an offence in 2015. The 2008 offences involved burglary, rape, deprivation of liberty and stealing. There was no doubt that the offence of rape was an offence of a sexual nature involving violence, so as to enliven the discretion to make a supervision order. , .
The 2015 offence was a deprivation of liberty, which involved the respondent having sex with the complainant and then physically restraining her. The respondent had also been charged with, but was acquitted, of rape. –. However, the Attorney-General submitted that there was “a sexual motivation to the deprivation of liberty of the complainant, and intercourse occurred on the occasion of the offence”, such that it was also an offence of a “sexual nature” involving violence. .
Although the issue did not affect the result of the application, his Honour gave consideration to the question of whether the deprivation of liberty offence – which was not necessarily, according to its statutory definition, of a sexual nature – could constitute an offence of a “sexual nature” under the Act, if there was “some sexual aspect to the manner in which the offence was committed”. –.
Whether a deprivation of liberty can be an offence of a sexual nature for the purposes of the Act
The respondent submitted that “offence of a sexual nature” encompassed only those offences of a sexual nature as legally defined (e.g. rape or sexual assault, but not deprivation of liberty). In support of that argument, he called in aid the principle of legality. –. That principle, as expressed by Connor J in Potter v Minahan (1908) 7 CLR 227, provides that legislation should only be interpreted so as to infringe upon fundamental principles or rights, where the legislature has expressed its intention to do so with “irresistible clearness”. . However, Davis J noted that subsequent cases had shown that the presumption created by the principle of legality can also be discharged “not only by the express words of the statute but also by implication provided that the implication is sufficiently clear” (citing Lee v New South Wales Crime Commissioner (2013) 251 CLR 196). .
Davis J noted that neither the parties, nor he, had been able to find any cases where this issue had been decided. . As a matter of first principle, though, his Honour noted that the task of construction required finding the “meaning of the words used by Parliament having regard to both context and purpose”. . In that regard, his Honour noted that a “common theme” throughout the Act was protection of the community. . In light of that purpose, it would be “surprising” if conduct such as “stupefying for the purpose of sexual assault”, or “unlawful killing in the course of a sexual act”, were not offences of a sexual nature. –. His Honour considered that the term “of a sexual nature” was “quite broad and surely is intended to pick up criminal offences where the act constituting the offence is in fact ‘of a sexual nature’”. . Further, his Honour concluded that the word “offence” (used in the expression “offence of a sexual nature”, and not defined by the Act) referred to the “act or omission” which gives rise to criminal liability – accordingly, it was the conduct, not the offence as legally defined, that had to be of “a sexual nature”. .
In summary, the offence of deprivation of liberty (or other offences) may be of a “sexual nature” if the nature of the act that constitutes the offence is of a sexual nature. .
Determination of the application
His Honour was ultimately not persuaded that the 2015 offences were “of a sexual nature” as a matter of fact. That was because the respondent was acquitted of the charge of rape, and there was “insufficient evidence” upon which to make findings. –. However, the ability to make a supervision order was enlivened by reason of the 2008 offences in any event. After reviewing the expert reports of three psychiatrists, his Honour determined it was appropriate to make the supervision orders sought (the terms of which were agreed between the parties). , , .