THE STATE OF WESTERN AUSTRALIA -v- A G P [2019] WADC 122 (21 August 2019)

Last Updated: 13 June 2023

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION : PERTH

CITATION : THE STATE OF WESTERN AUSTRALIA -v- A G P [2019] WADC 122

CORAM : GETHING DCJ

HEARD : 5 JULY & 14 AUGUST 2019

PUBLISHED : 21 AUGUST 2019

FILE NO/S : IND 530 of 2019

BETWEEN : THE STATE OF WESTERN AUSTRALIA

AND

A G P

Whether a declaration should be made that the offences committed by the offender were serious violent offences for the purposes of Sentencing Act 1995 (WA) s 97A

Legislation:

Sentencing Act 1995 (WA), s 97A

Result:

Declaration not made

Representation:

Counsel:

The State of Western Australia	:	Mr R C Clarke
Accused	:	Ms J T Fisher & Ms M S Perling

Solicitors:

The State of Western Australia	:	Director of Public Prosecutions
Accused	:	Justine Fisher Barrister & Solicitor

Case(s) referred to in decision(s):

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1

Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378

Director General of Department of Transport v McKenzie [2016] WASCA 147

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

HAR v The State of Western Australia [No 2] [2015] WASCA 249

Love v KWS Capital Pty Ltd [2013] WASC 466

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

Northern Territory v Sangare [2019] HCA 25

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

PJB v The State of Western Australia [2018] WASCA 150

Sharp v Wakefield [1891] UKLawRpAC 8; [1891] AC 173

The State of Western Australia v BKJ [2018] WASCA 136

The State of Western Australia v Collard [2015] WASCA 86

Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57

GETHING DCJ:

1. On 5 July 2019, the offender pleaded guilty to two counts of sexual penetration of a child under the age of 16 who he knew to be a lineal relative, and two counts of indecent dealing of a child under the age of 16 who he knew to be a lineal relative, contrary to Criminal Code (CC) s 329. The offender was sentenced to a total effective sentence of 5 years' immediate imprisonment.
2. At sentencing, counsel for the State sought a declaration that the offences committed by the offender were 'serious violent offences' (SVO Declaration) pursuant to Sentencing Act 1995 (WA) (SA) s 97A for the purposes of pt 5A of the Sentence Administration Act 2003 (WA) (SAA). Part 5A of the SAA creates a regime which allows for the post-sentence supervision of prisoners who are serving fixed terms for a 'serious violent offence'. That term is defined to mean offences specified in SAA sch 4 or an offence declared to be a serious violent offence pursuant to SA s 97A(3).
3. The offence committed by the offender pursuant to CC s 329 is not specified in SAA sch 4. The making of the SVO Declaration was opposed by the offender. At the sentencing hearing, I advised counsel for the State that, if the State wished to press the application for the making of an SVO Declaration, it would need to be adjourned for submissions and argument.
4. The State advised that it wished to press the application and on 16 July 2019 filed detailed submissions in support. The State submits that the offences committed by the offender meet the criteria for a 'serious violent offence' under SA s 97A(3), and that the court should exercise its discretion to make a SVO Declaration. Counsel for the offender filed submissions in opposition dated 6 August 2019. The application was heard by me on 14 August 2019.
5. At the hearing on 14 August 2019 I advised the parties that I decline to make an SVO Declaration. I said that I would publish written reasons, which are as follows.

Background

6. Counts 1, 2 and 3 occurred on an unknown date in 2014 at Bayonet Head. The victim is the offender's biological daughter. The victim and the offender were home alone together and lying on the offender's bed. The victim was naked under the blankets. The offender went under the blankets and performed cunnilingus on the victim for approximately 30 minutes. These facts comprise count 1.
7. The offender then pulled his shorts down and exposed his erect penis to the victim and started to masturbate, showing the victim. These facts comprise count 2.
8. The offender then asked the victim to masturbate his penis. The victim complied and began to masturbate his penis for several minutes, before being interrupted by a vehicle pulling into the driveway. These facts comprise count 3.
9. Count 4 occurred on another unknown date in 2014 at Bayonet Head, between the same victim and the offender. This offence occurred approximately two months after counts 1, 2 and 3. The offender and the victim were home alone and the victim requested the offender lick her vagina again and removed her clothing before going into the bed in the main bedroom. The offender went under the blankets and performed cunnilingus for approximately 45 minutes.
10. In October 2016, the victim disclosed these offences to an adult and the matter was reported to police.
11. The offender was charged and pleaded guilty before me on 5 July 2019.
12. As part of the sentencing process, I made a lifetime restraining order against the offender in favour of the victim pursuant to Restraining Orders Act 1997 (WA) s 63A.
13. The offender's conviction also had the effect of making him a reportable offender pursuant to Community Protection (Offender Reporting) Act 2004 (WA).

Issues arising for determination

14. The power to declare an offence to be a 'serious violent offence' in SA s 97A is in the following terms:

97A. Declaration of serious violent offence for purposes of Sentence Administration Act 2003 Part 5A

(1) In this section -

family relationship has the meaning given in the Restraining Orders Act 1997 section 4(1);

offence does not include an offence specified in the Sentence Administration Act 2003 Schedule 4;

victim has the meaning given in section 13.

(2) This section applies if a court is sentencing an offender to imprisonment for an indictable offence.

(3) The court may, for the purposes of the Sentence Administration Act 2003 Part 5A, declare the offence to be a serious violent offence if the offence -

(a) involved the use of, or counselling or procuring the use of, or conspiring or attempting to use, serious violence against another person; or

(b) resulted in serious harm to, or the death of, another person.

(4) The court must regard the existence of any of the following circumstances as an aggravating factor when deciding whether to make a declaration -

(a) the offender has a history of violent offending;

(b) the offender was in a family relationship with a victim of the offence when the offence was committed;

(c) a victim of the offence was under 12 years of age when the offence was committed.

(5) A declaration may be made by the court on its own initiative or on an application by the prosecutor.

15. The section applies to the offender as he has been sentenced to imprisonment for an indictable offence.[1]
16. Section s 97A of the SA has not yet been the subject of interpretation by any court.
17. Going back to general principles, the process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose.[2] As the plurality of the High Court observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[3]

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text ... The language which has actually been employed in the text of legislation is the surest guide to legislative intention ... The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision..., in particular the mischief ... it is seeking to remedy.

18. Further, 'the purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions'.[4]
19. In interpreting legislation, the court is required to prefer a construction that would promote the purpose or object underlying the legislation (whether that purpose is expressly stated in the written law or not) over a construction that would not.[5]
20. Seven points about the application of SA s 97A are apparent from consideration of the ordinary and grammatical meaning of the words of that section having regard to their context and legislative purpose.
21. The first is that there are two distinct ways in which an offence may be a serious violent offence. The first way is if the offence is of a type which is deemed to be one of serious violence by its inclusion in SAA sch 4. The second way is if the circumstances in which the offence was committed allow the court to characterise it as set out in SA s 97A(3), relevantly in the present case, whether the offence involved the use of 'serious violence' to the victim or resulted in 'serious harm' to the victim.
22. The second is that the terms 'serious', 'violent' and 'harm' are not defined. They are to be defined according to their ordinary meaning. According to the Macquarie Dictionary,[6] 'violence' is defined to mean a 'rough force in action' or a 'rough or injurious action or treatment'. It includes 'any unjust or unwarranted exertion of force or power, as against rights, laws, etc; injury; wrong; outrage'. 'Harm' means 'injury; damage; hurt' and also includes 'moral injury; evil; wrong'. 'Serious' is an adjective, defined as 'of grave or solemn disposition or character; thoughtful', 'weighty or important' and 'giving cause for apprehension'.
23. The third is that once the court has characterised an offence as being a serious violent offence, a discretion is enlivened as to whether to make a declaration. This is implied by the use of the word 'may' in SA s 97(3).[7] It is also inherent in the way in which SA s 97(4) is expressed. Any factors which the court is entitled or bound to consider or take into account in exercising this discretion, and any factors which the court is not entitled to consider or take into account, are to be ascertained by implication from the subject matter, scope and purpose of SA s 97A as a whole.[8] The discretion must be exercised judicially, that is, in accordance with established principles and factors directly connected with the sentencing of the offender, and not arbitrarily, capriciously or so as to frustrate the legislative intent.[9]
24. The fourth is that the factors set out in SA s 97(4) are ones which the court is required to consider in exercising the discretion.
25. The fifth is that there are no other factors which the court is expressly bound to either consider or disregard.
26. The sixth is that the facts of the offending which led the court to characterise the particular offence as being one involving serious violence or serious harm will also be relevant to the exercise of the discretion to make the declaration.
27. The seventh is the purpose of a declaration pursuant to s 97A SA is to enliven the regime in SAA pt 5A for the Prisoner Review Board (PRB) to consider whether a post sentence supervision order should be made for the offender. This end purpose is a relevant consideration. The self-evident objective of the regime in SA s 97A and SAA pt 5A is to allow the PRB to make an order that a person who has served a term of imprisonment in respect of an offence of serious violence be subject to additional monitoring and supervision on their release from prison in circumstances where the PRB considers that an order of this type would be appropriate.[10] So for, example, the progress of an offender towards rehabilitation and their risk of re-offending would be a relevant consideration, something that the court would have already considered for sentencing purposes.[11] However, it is not the role of the court to predict or pre-empt the ultimate decision of the PRB.
28. The State in its submissions referred the court to the Parliamentary materials for the legislation which enacted SA s 97A.[12] There is nothing in the Parliamentary materials which adds to what is apparent from a consideration of the ordinary and grammatical meaning of the words of SA s 97A having regard to their context and legislative purpose. There is, however, one comment by the then Attorney-General that, it seems to me, to neatly summarise the purpose or object underlying the post sentence supervision order regime:[13]

Certainly, punishment is one of the objectives of sentencing under the Sentencing Act but that is not the objective of continuing supervision. The offender will have already been punished, by way of a term of imprisonment, as one of the considerations when imposing a term of imprisonment. But the other objectives in the Sentencing Legislation Amendment Bill 2016 that are also set out in the Sentencing Act 1995 involve deterrence, the facilitation of rehabilitation and the protection of the community. It is the protection of the community and facilitating rehabilitation that are the keys to the objectives of this legislation; that is, keeping some control over someone who may have a propensity for drifting off the rails and getting up to mischief, on the basis of the offence that they have been imprisoned for, and at the same time who has not availed him or herself of, or responded to, the rehabilitation programs that are available in custody.

29. So interpreted, three issues arise for determination:
    • Did the offending involve serious violence to the victim?
    • Did the offending result in serious harm to the victim?
    • If so, should the court exercise its discretion to make the SVO Declaration?

Did the offending involve serious violence to the victim?

30. The State asserts that the offences committed by the offender involved the use of 'serious violence' for the purposes of SA s 97A(3)(a). It did so for five reasons:

(a) the offences committed by the offender pursuant to CC s 329, involving sexual penetration by cunnilingus and indecent dealing, are analogous to an offence against CC s 320, being sexual offences against a child under 13, which offence is in SAA sch 4;

(b) counts 1, 2 and 3 ultimately contributed to the occurrence of count 4, demonstrating the extent to which counts 1 - 3 corrupted and redefined what was normal in a relationship between father and daughter for the victim;

(c) the psychological impact on the victim contributed to the serious harm to the victim;

(d) the victim was aged between 7 and 8 at the time the offending occurred; and

(e) the offender was the victim's biological father, and used that relationship of trust to commit the offence.

31. Counsel for the offender submits that the offence did not involve either serious violence or serious harm. The submission is made that the use of the words 'violence' and 'harm' when used in combination with the word 'serious' presuppose the use of physical force or injury.
32. Two issues can be addressed at the outset. The first is that there is nothing in the express words or context of SA s 97A which limits the notion of 'serious violence' in s 97A to offences involving the use of physical violence. Nor can such a limitation be ascertained from the definition of the term 'violence' in its ordinary usage (above [22]) or from the subject matter, scope and purpose of SA s 97A as a whole. Rather, each case will turn on its facts.
33. The second is that the effect of the offence pursuant to CC s 329 not being in SAA sch 4 is that something more than the mere commission of the offence is required in order for the offence to be characterised as one involving 'serious violence'; were this not the case, the offence would have been included in sch 4. In relation to CC s 329, this conclusion accords with common experience. A kiss on the lips or pat on the buttocks may constitute indecent dealing, but would not necessarily involve the use of 'serious violence'. This is not to downplay the gravity of this type of offending. As the Court of Appeal recently reiterated, '[a]ny sexual penetration of a child is serious'.[14] However, for sentencing purposes, including in my view order pursuant to SA s 97A, a more granulated analysis needs to be conducted. Again, as observed by the Court of Appeal:[15]

It is relevant in a case such as this, where the respondent has sexually penetrated the victim in different ways, to acknowledge that there is no 'hierarchy' of sexual penetration in the sense that some forms of sexual penetration are always to be regarded as less serious than others ... That said, generally speaking, penile penetration of the vagina or the anus has been regarded as more serious than digital penetration, cunnilingus and fellatio. Without, in any way, attempting to describe all of those circumstances which can aggravate a sentence for an offence of sexual penetration where an act of sexual penetration is committed in circumstances of particular degradation or humiliation or causes injury (whether physical or psychological), such considerations should generally result in a more severe sentence. In the case of children, the offences of sexual penetration committed against very young children will also generally result in a more severe sentence.

34. In the present offending, in sentencing I relevantly found that:

(a) the more serious offending was constituted by the offender engaging in cunnilingus with the victim on two occasions, for prolonged periods of time, which I characterised as being a particularly intimate form of sexual penetration;[16]

(b) the other offending was constituted by the offender masturbating in front of her and by using her hand to rub his penis;[17]

(c) the victim was aged between 7 and 8 at the time of the offending;

(d) the offending on each occasion was prolonged, not fleeting, and involved some persistence;[18] and

(e) the offending involved a degree of corruption of the victim's mind, redefining what was normal in a relationship between father and daughter.[19]

35. The offending did not, however, involve penile penetration. The State did not assert that the offender used, or threatened to use, any physical force, and certainly no 'rough action in force' (see [22] above). Nor did the State assert that the victim suffered any physical injury in the commission of the offences. Nor was there any element of emotional threat or manipulation (for example, a threat of disclosure of embarrassing or humiliating information). Rather, the offending occurred as a result of a gross breach of the trust the victim had in her father.
36. Notwithstanding the inherent gravity and 'seriousness' of the offending, I am not satisfied that the offence involved the use of 'serious violence' to the victim for the purposes of SA s 97A(3)(a).

Did the offending result in serious harm to the victim?

37. The State submits that the offending resulted in serious harm to the victim for the purposes of SA s 97A(3)(b) in essence relying on the five reasons I have already identified.
38. The submissions on behalf of the offender are that the offending did not result in serious harm to the victim.
39. There is nothing in the express words or context of SA s 97A which limits the notion of 'serious harm' in s 97A(3)(a) to physical harm. Nor can such a limitation be ascertained by implication from the subject matter, scope and purpose of SA s 97A as a whole. To the contrary, the regime in the SA relating to victims specifically recognises that the harm suffered by a victim can go well beyond physical harm. The term 'victim' in SA s 97A is defined by reference to SA s 13 to mean relevantly 'a person who, or body that, has suffered injury, loss or damage as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender'. A victim, so defined, may file a victim impact statement, which is defined to mean (relevantly) a 'statement containing particulars of ... any personal harm suffered by the victim as a direct result of the offence'.[20] 'Personal harm' is defined in turn to mean 'bodily harm or psychological or psychiatric harm'.[21]
40. As with the notion of 'serious violence', the effect of the offence pursuant to CC s 329 not being in SAA sch 4 is that something more than the mere commission of the offence is required in order for the offence to be characterised as one resulting in 'serious harm'.
41. As to the nature of the harm sustained by the victim, in sentencing the offender, I found that the offending occurred when the victim was vulnerable, a young girl aged between 7 and 8, in her home, under the offender's care, with her mother not at home.[22] It involved a gross breach of trust.[23] I did not have the benefit of a victim impact statement. I observed in sentencing that is was 'plain that [the] offending will have had a devastating psychological impact on [the victim], something which will take her a determined effort to recover from and move forwards in her life'.[24] Given that observation, I am satisfied that the offence resulted in the victim sustaining 'serious harm' for the purposes of SA s 97A(3)(b).

Should the court exercise its discretion to make the SVO Declaration?

42. There are three factors in favour of making a SVO Declaration. The first is that offender was in a family relationship with the victim.[25] He was her biological father.
43. The second is that the victim was under the age of 12 when the offences were committed, being 7 or 8 years old.[26]
44. The third is that, as set out above [41], the victim suffered serious harm as a result of the offending in the nature of psychological impact.
45. There are then six factors against the making of a SVO Declaration. The first is that the offending did not involve the use of any violence, let alone serious violence.
46. The second is that the offender does not have a history of violent offending.[27] He has no prior conviction for an offence involving either violence or sexual impropriety. Rather, his adult criminal record comprises convictions for possessing a prohibited drug (2003), stealing (2001), stealing a motor vehicle (2001), possessing a prohibited drug (2000) and possessing unlicensed ammunition (2000). For each conviction he was fined. There were no documented interstate convictions.
47. The third is that in sentencing the offender I found that he had a considerable level of genuine remorse for his offending.[28] This in turn tends to decrease his risk of re-offending, in particular as regards the victim.
48. The fourth is that there was no other material suggesting a heightened risk of re-offending, in particular re-offending involving sexual misconduct or violence. The offender does not have any current mental or physical health issues. Aside from the circumstances of the offending, there was no other material suggesting that the offender had any deviant sexual interests. To the extent that he has outstanding treatment needs, they are in the areas of substance abuse (in particular alcohol and cannabis), problem solving/cognitive skills, improving self-esteem and self-confidence, and developing relationships. Participation in a sex offender treatment program was recommended by the author of the psychological report provided to the court for the purposes of sentencing. There was no material to the effect that the offender has currently, or has had in the past, any issues managing his anger or any propensity for violence.
49. The fifth is that offender is already subject to a lifetime restraining order in favour of the victim pursuant to Restraining Orders Act 1997 (WA) s 63A. There is nothing in the materials before the court suggesting the need for an additional regime by which 'requirements relating to the protection of any victim of an offence committed by the supervised offender from coming into contact with the offender' can be imposed.[29]
50. The sixth is that the offender's conviction also had the effect of making him a reportable offender pursuant to Community Protection (Offender Reporting) Act 2004 (WA) (CPORA). As a reportable offender, the offender is subject to detailed reporting obligations. His initial report, which must be made within seven days after his release from custody,[30] must address the following:[31]
    26. Initial report by reportable offender of personal details

(1) The details the reportable offender must report are -

(a) his or her name, together with any other name by which he or she is, or has previously been, known; and

(b) in respect of each name other than his or her current name, the period during which he or she was known by that other name; and

(c) his or her date of birth; and

(daa) details of any passport that he or she holds, including its number and expiry date and the name of the country that issued it; and

(d) the address of each of the premises at which he or she generally resides or, if he or she does not generally reside at any particular premises, the name of each of the localities in which he or she can generally be found; and

(da) any telephone number that he or she has or that he or she regularly uses; and

(db) any email address that he or she has or that he or she regularly uses; and

(dc) the name of any Internet service provider whose Internet carriage service -

(i) he or she is supplied with; or

(ii) he or she regularly uses;

and

(dd) any name (other than a name reported under paragraph (a)) that he or she uses, or by which he or she is known, when using the internet for the purposes of communication; and

(de) any -

(i) website; or

(ii) communication service provided by means of the internet,

in connection with which he or she uses a name referred to in paragraph (a) or (dd) or an email address referred to in paragraph (db); and

(df) any user name, code, password or other information that he or she uses to gain access to -

(i) the internet generally or a particular website, other than a website operated by an authorised deposit taking institution, as defined in the Banking Act 1959 (Commonwealth), or a website approved by the Commissioner under subsection (1b); or

(ii) an email address referred to in paragraph (db) or a communication service referred to in paragraph (de);

and

(e) the names and ages of any children who generally reside in the same household as that in which he or she generally resides, or with whom he or she has regular unsupervised contact; and

(fa) the address of each of the premises at which -

(i) he or she is regularly present; and

(ii) any children generally reside;

and

(f) if he or she is employed -

(i) the nature of his or her employment; and

(ii) the name of his or her employer (if any); and

(iii) the address of each of the premises at which he or she is generally employed or, if he or she is not generally employed at any particular premises, the name of each of the localities in which he or she is generally employed;

and

(g) details of his or her affiliation with any club or organisation that has members who are children or that conducts activities in which children participate; and

(h) the make, model, colour and registration number of any motor vehicle owned by, or generally driven by, him or her; and

(i) details of any tattoos or permanent distinguishing marks that he or she has (including details of any tattoo or mark that has been removed); and

(j) whether he or she has ever been found guilty in any foreign jurisdiction of a reportable offence or of an offence that required him or her to report to a corresponding registrar or been subject to a corresponding offender reporting order or a corresponding protection order recognised under section 108 and, if so, where that finding occurred or that order was made; and

(k) if he or she has been in government custody since he or she was sentenced or released from government custody (as the case may be) in respect of a reportable offence or corresponding reportable offence - details of when and where that government custody occurred; and

(l) if, at the time of making a report under this Division, he or she leaves, or intends to leave, Western Australia to travel elsewhere in Australia on an average of at least once a month (irrespective of the length of any such absence) -

(i) in general terms, the reason for travelling; and

(ii) in general terms, the frequency and destinations of the travel.

51. This is complemented by ongoing reporting obligations.[32] There is nothing in the materials before the court suggesting any present or potential future need for any additional reporting, monitoring or supervision.
52. On balance, there is nothing specific in the circumstances of the offending or the other sentencing materials before the court suggesting that there is any need for the offender to be the subject of further supervision at the conclusion of his term of imprisonment in addition to the limitations imposed on him by the lifetime VRO and the oversight he will receive as a reportable offender. To use the words of the former Attorney-General, the offender does not 'have a propensity for drifting off the rails and getting up to mischief' so as to make it appropriate to make a SVO Declaration in respect of the present offending.
53. I am not satisfied that it is appropriate to exercise the discretion in favour of making the SVO Declaration.
54. Accordingly, I dismissed the State's application for a SVO Declaration.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

JM
Associate

22 AUGUST 2019

---

[1] SA s 97A(2).
[2] Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 [26] (French CJ, Hayne, Keifel & Bell JJ); Director General of Department of Transport v McKenzie [2016] WASCA 147 [45] – [47] (Buss P, with whom Murphy JA and Beech J agreed) (McKenzie).
[3] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ) (references omitted); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ); McKenzie [45] – [48].
[4] Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J); McKenzie [48].
[5] Interpretation Act 1984 (WA) s 18.
[6] Macquarie Dictionary Online, 2019, Macquarie Dictionary Publishers, an imprint of Pan Macmillan Australia Pty Ltd, www.macquariedictionary.com.au.
[7] Interpretation Act 1984 (WA) s 56(1).
[8] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 – 40 (Mason J); HAR v The State of Western Australia [No 2] [2015] WASCA 249 [96] (Buss JA with whom Mazza JA and Hall J agreed).
[9] By analogy to other broad statutory judicial discretions: Northern Territory v Sangare [2019] HCA 25 [24] (judgment of the court); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [22] (Gaudron & Gummow JJ), [65] – [66], (McHugh J, with whom Brennan CJ agreed), [134] (Kirby J); Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 517 – 520 (Mason & Deane JJ); 533 – 534 (Wilson & Dawson JJ), 537 (Brennan J); The State of Western Australia v Collard [2015] WASCA 86 [25] (judgment of the court); Love v KWS Capital Pty Ltd [2013] WASC 466 [6] (Edelman J); Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57 [5] (Edelman J); Sharp v Wakefield [1891] UKLawRpAC 8; [1891] AC 173, 179 (Lord Halsbury).
[10] See most explicitly SAA s 74D(3).
[11] See for example: PJB v The State of Western Australia [2018] WASCA 150 [25] - [26] (judgment of the court).
[12] Sentencing Legislation Amendment Act 2016 (WA).
[13] Parliamentary Debates, Legislative Council, 8 November 2016, page 7610.
[14] The State of Western Australia v BKJ [2018] WASCA 136 [90] (judgment of the court).
[15] The State of Western Australia v BKJ [91] (cross-reference omitted).
[16] ts 5.7.19, pages 3 – 4.
[17] ts 5.7.19, page 3.
[18] ts 5.7.19, pages 3 – 4.
[19] ts 5.7.19, page 4.
[20] SA s 23A.
[21] SA s 23A.
[22] ts 5.7.19, page 4.
[23] ts 5.7.19, page 4.
[24] ts 5.7.19, page 4.
[25] SA s 97A(4)(b).
[26] SA s 97(4)(c).
[27] SA s 97A(4)(a).
[28] ts 5.7.19, pages 6 -7.
[29] SAA s 74G(b).
[30] CPORA s 24.
[31] CPORA s 26.
[32] CPORA s 28.