ATTORNEY GENERAL FOR NEW SOUTH WALES v TILLMAN [2007] NSWCA 119

New South Wales Court of Appeal

CITATION: ATTORNEY GENERAL FOR NEW SOUTH WALES v TILLMAN [2007] NSWCA 119

HEARING DATE(S): 3 May 2007

JUDGMENT DATE: 24 May 2007

JUDGMENT OF: Mason P at 1; Santow JA at 1; Tobias JA at 1

DECISION: Appeal upheld.

CATCHWORDS: CRIMINAL LAW – Probation, parole, release on licence and remissions – interim detention order – interim supervision order – where respondent has served sentence – where respondent has extensive criminal history for serious offences of rape and sexual assault – where evidence of high risk of recidivism - STATUTES – Act of parliament – interpretation – rules of construction – reading statute as a whole – particular words – "may" – whether "may" means "must" – whether it imports a true discretion – Crimes (Serious Sexual Offenders) Act 2006, ss 8, 16 - STATUTES – Act of parliament – interpretation – rules of construction – particular rules – presumption against restricting rights – deprivation of liberty – where objects of legislation are protective, not punitive - STATUTES – Act of parliament – interpretation – whether discretion involved – location of discretion in section – where section merely enlivened on the satisfaction of elements – relevance of discretionary matters – not relevant when determining whether power is enlivened – Crimes (Serious Sex Offenders Act) 2006, s 16(1)(a) and 16(1)(b) - APPEAL AND NEW TRIAL – interference with discretion of court below – wrong principle – proper exercise of discretion – whether to order interim detention or supervision order – where refusal to order interim detention order – incorrect regard had to likely final order – incorrect regard had to lateness of application for order – fairness to accused – where other avenues open for redress – significance of attitude to rehabilitation – inadequacy of supervision orders – Crimes (Serious Sex Offenders Act) 2006, ss 16, 17(4)(e) - APPEAL AND NEW TRIAL – interference with discretion of court below – interference with judge's finding of fact – proof and evidence – where evidence of risk all one way – Crimes (Serious Sex Offenders Act) 2006, ss 16, 17(4) - APPEAL AND NEW TRIAL – interference with discretion of court below – interference with judge's finding of fact – error of fact – where trial judge held there was no history of attacks against random individuals