STATE OF WESTERN AUSTRALIA -v- HOSIE [2026] WASC 265

[2026] WASC 265 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : STATE OF WESTERN AUSTRALIA -v- HOSIE [2026] WASC 265 CORAM : WHITBY J HEARD : 29 JUNE 2026 DELIVERED : 29 JUNE 2026 PUBLISHED : 30 JUNE 2026 FILE NO/S : SO 5 of 2026 BETWEEN : STATE OF WESTERN AUSTRALIA Applicant AND SHANE ANDREW HOSIE Respondent Catchwords: Criminal law - High risk serious offender - Preliminary hearing - Time for bringing application to have a person declared a high risk serious offender - Statutory construction - High Risk Serious Offenders Act 2020 (WA) s 35(3) - Construction of the phrase 'within the period of 1 year after the application is made' - Meaning of 'application', 'possibility' and 'might' - Natural and ordinary meaning of the words - Purpose of the Act - Application to be formally lodged within one year of the possibility the offender might be released from custody -- 1 of 11 -- [2026] WASC 265 Page 2 Legislation: Criminal Code (WA) High Risk Serious Offenders Act 2020 (WA) National Crime Authority Act 1984 (Cth) Sentencing Act 1995 (WA) Result: Respondent's application to dismiss application refused Category: B Representation: Counsel: Applicant : J L C Rivalland Respondent : T R Stephenson Solicitors: Applicant : State Solicitor's Office Respondent : Irwin Chambers Case(s) referred to in decision(s): Chief Executive Officer, Dept of Water and Environmental Regulation v Waroona Resources Pty Ltd [2023] WASCA 73 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; (2017) 263 CLR 551 F and Others v National Crime Authority (1998) ALR 471 Michael Aubrey v R [2015] NSWCCA 323 Minister for Immigration and Citizenship v Haneef [2007] FCAFA 203; (2007) 243 ALR 606 Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 271 CLR 495 Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 -- 2 of 11 -- [2026] WASC 265 Page 3 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137 The State of Western Australia v Winder [2021] WASC 65 -- 3 of 11 -- [2026] WASC 265 WHITBY J Page 4 WHITBY J: (This judgment was delivered extemporaneously on 29 June 2026 and has been edited from the transcript.) 1 On 26 March 2026, the State of Western Australia filed an application for a restriction order in respect of the respondent (Application). The Application was made pursuant to s 35(1) of the High Risk Serious Offenders Act 2020 (WA) (Act). 2 As at 26 March 2026, the respondent was serving a sentence of 18 months' imprisonment imposed in the Perth Magistrates Court on 6 December 2024 for two counts of persistent family violence contrary to s 300(1) of the Criminal Code (WA) (Index Offences). The learned magistrate declared the respondent to be a serial family violence offender pursuant to s 124E of the Sentencing Act 1995 (WA). Pursuant to s 97A(6)(c) of the Sentencing Act and s 5(6) of the Act, the offences are 'serious offences' for the purposes of the Act. The respondent would have served his maximum sentence for the Index Offences on 5 June 2026. 3 At the time of making the Application, the respondent had been convicted of further charges for which he had not yet been sentenced. Those charges were: (1) one count of used electronic communication with intent to procure a person under the age of 16 years to engage in sexual activity, contrary to s 204B(2)(a)(i) of the Criminal Code; (2) one count of used electronic communication with intent to expose a person under the age of 16 years to indecent matter, contrary to s 204B(2)(a)(ii) of the Criminal Code; and (3) three counts of possessed child exploitation material, contrary to s 220 of the Criminal Code. (Sentencing Charges). 4 At the time of the making the Application, the respondent was charged with the following four offences, the trial for which had commenced on 18 March 2026 but resulted in a hung jury: (1) two counts of aggravated sexual penetration without consent, contrary to s 326 of the Criminal Code; -- 4 of 11 -- [2026] WASC 265 WHITBY J Page 5 (2) one count of unlawfully impeding another persons' normal breathing applying pressure on, or to, another person's neck, contrary to s 298(b) of the Criminal Code; and (3) one count of threatening with intent to compel the doing of an act, contrary to s 338A(d) of the Criminal Code. (Further Charges). 5 The Further Charges were listed for mention in the District Court on 17 April 2026. 6 The Application was listed for a preliminary hearing on 28 May 2026. At this time, it was known that the respondent was to be sentenced in the District Court for the Sentencing Charges on 5 June 2026. Counsel for the respondent applied to have the Application dismissed on the ground that the Application was incompetent because it was not made when there was a possibility that the respondent might be released from custody within one year after the application was made, and therefore it did not comply with the requirements of s 35(3) of the Act. 7 I adjourned the preliminary hearing of the Application without determining the respondent's application to dismiss to today, after the sentencing hearing for the Sentencing Charges. 8 On 5 June 2026, Flynn DCJ sentenced the respondent to 2 years' imprisonment commencing on 3 June 2026, with eligibility for parole. The result is that there is now no possibility that the respondent will be released from custody before 26 March 2027, being one year from the date the Application was commenced. The respondent maintains his application to dismiss the Application. The State opposes the respondent's application to dismiss. 9 The determination of the respondent's application to dismiss turns on the proper construction of s 35 of the Act. 10 Section 35 of the Act provides: 35 Application for restriction order in relation to serious offender under custodial sentence (1) The State may apply to the Supreme Court for a restriction order in relation to a serious offender under custodial sentence who is not a serious offender under restriction. -- 5 of 11 -- [2026] WASC 265 WHITBY J Page 6 (2) Subsection (1) applies whether the custodial sentence was imposed before or after the commencement of this section and whether or not the offender is in custody. (3) If the offender is in custody, an application under subsection (1) cannot be made unless there is a possibility that the offender might be released from custody within the period of 1 year after the application is made. (4) An application under subsection (1) need not specify whether the restriction order sought is a continuing detention order or a supervision order. 11 The starting point is to consider the words of the provision. The natural and ordinary meaning of the words provides a presumptive and persuasive meaning.1 Regard must then be had to the context in which the provision appears, that is regard must be had to the language and purpose of the legislation as a whole.2 In CIC Insurance Ltd v Bankstown Football Club Ltd,3 the High Court referred to the 'modern approach to statutory interpretation' in the following terms: [T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. 12 The purpose of the legislation may be ascertained from express statements of objectives in the legislation itself and/or by reference to the scheme and function of the legislation overall. Extrinsic materials such as Second Reading Speeches, Explanatory Memoranda or Reports of Law Reform Commissions may assist in determining the purpose of legislation and the meaning to be given to words contained therein.4 However, it is not open for a court to legislate a meaning to promote the purpose of legislation; that meaning must be found in the words of the legislation themselves.5 1 SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137 [64]. 2 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]. 3 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 (2007), 408. 4Minister for Immigration and Citizenship v Haneef [2007] FCAFA 203; (2007) 243 ALR 606 [105]; Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 271 CLR 495 [96] - [98]. 5 Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; (2017) 263 CLR 551 [52]. -- 6 of 11 -- [2026] WASC 265 WHITBY J Page 7 13 Two competing constructions of s 35 of the Act are before the court. 14 The respondent contends that properly construed, the term 'application' contained in s 35 of the Act means the 'entire court process which includes the final hearing of a 'restriction order' proceeding'.6 This means, the respondent says, if it becomes apparent before the final restriction order hearing there is no possibility that the offender will be released within one year after the application is commenced, then the application is no longer competent. 15 The State contends that, upon a plain reading of s 35 of the Act, if an offender is in custody, an application for a restriction order must be formally lodged within one year before the date upon which there is a possibility that the offender might be released from custody. The State says this is a low threshold of knowledge. 7 16 In my view, the State's contended construction of s 35 of the Act is correct. That is for the following three reasons. 17 Firstly, s 35(3) of the Act provides that an application cannot be made unless there is a 'possibility' that the offender 'might' be released from custody within the period of one year after an application for a restriction order is made. 18 'Possibility' is an ordinary English word of perfectly clear meaning8 - there is a 'possibility' of something if 'there is chance that something may happen or be true.'9 19 The meaning of the word 'might' was considered in F and Others v National Crime Authority10 in the context of the phrase 'might tend to incriminate him' contained in s 30(4) of the National Crime Authority Act 1984 (Cth). O'Loughlin J held that the practical differences that flow from the use of the word 'might' in the legislation, as distinct from the common law use of the word 'may' in dealing with the issue of self-incrimination, are slight, but the use of the word 'might' may marginally assist the witness claiming protection, stating:11 6 Defence submissions dated 7 May 2026 [10]. 7 State submissions dated 21 May 2026 [25]. 8 See Michael Aubrey v R [2015] NSWCCA 323 [84]. 9 Cambridge online dictionary. 10 F and Others v National Crime Authority (1998) ALR 471. 11 F and Others v National Crime Authority (1998) ALR 471, 481. -- 7 of 11 -- [2026] WASC 265 WHITBY J Page 8 Both 'may' and 'might' are commonly used when referring to a possibility, or an opportunity and in that sense, they do not impose the same degree of capability as 'will' and 'would'. Something that 'may or might' happen is less likely to occur than something that 'will or would' happen. But within the field of possibilities 'may' could suggest a possibility that is more likely to occur than one which 'might' only occur. … An answer that 'might' tend to incriminate is at the lowest level - meaning that the risk of incrimination need only be a low level possibility to entitle a witness to refuse to answer the question. 20 Further, in The State of Western Australia v Winder,12 in a preliminary hearing for a restriction order, Quinlan CJ said: For the purposes of this hearing, I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. I emphasise the word might. To say that something might occur, is to say that it is possible. 21 Both O'Loughlin J's and Quinlan CJ's analysis of the meaning of the word 'might' assist in determining the proper construction of s 35, in particular s 35(3) of the Act. In my view, on its plain and ordinary meaning, s 35(3) of the Act provides that the application must be made within one year of there being a chance that the offender might be released from custody - there need only be a low level possibility of the offender's release from custody within one year. 22 Secondly, the context in which s 35 of the Act appears, that is the language and purpose of the Act as a whole, supports the construction contended for by the State. 23 Section 35(1) of the Act confers on the State the power to make a restriction order application in relation to a serious offender under custodial sentence. 24 A 'serious offender under a custodial sentence' is defined in s 3 of the Act as a person: (a) who is under a custodial sentence for a serious offence; or (b) who - (i) is under a custodial sentence for an offences or offences other than a serious offence; and 12 The State of Western Australia v Winder [2021] WASC 65 [16]. -- 8 of 11 -- [2026] WASC 265 WHITBY J Page 9 (ii) has been under that sentence at all times since being discharged from a custodial sentence for a serious offence. 25 'Under a custodial sentence' is defined in s 3 of the Act as being subject to a sentence which has not lapsed. This reflects that the Act operates prospectively as it applies to offenders before they are released from custody. 26 Section 35(1) and s 35(3) of the Act operate together in this way - s 35(1) identifies the persons who may be the subject of a restriction order application and s 35(3) imposes a time constraint on the making of that application. Operating together, the sub-sections are directed to persons who are under custodial sentences and who might be released from custody within one year. 27 Section 46(3) of the Act supports the prospective, pre-release operation of the Act and the court's procedural control over the progress of a restriction order application. It provides: The court may defer fixing a day for the hearing of the restriction order application, or if it has already fixed a day, adjourn the hearing if - (a) the offender has been charged with a further offence; and (b) that charge has not been dealt with; and (c) the court considers that the interests of justice require that the restriction order application should not be heard until that charge has been dealt with. 28 The construction contended for by the State is also consistent with the objects of the Act, which are to provide for:13 (1) the detention in custody or supervision of a high risk serious offender to ensure adequate protection of the community and of victims of serious offences; and (2) continuing control, care or treatment of a high risk serious offender. 29 The purpose of s 35 of the Act, in the context of the broad purpose of the Act I have just outlined, is twofold. First, it is to ensure that the application for a restriction order is made at a time proximate to the time an offender may be released so as to ensure that the assessment of 13 Section 8 of the Act. -- 9 of 11 -- [2026] WASC 265 WHITBY J Page 10 the risk posed to the community by the offender's release is not a hypothetical one. Second, given the prospective operation of s 35 of the Act, its purpose is to ensure that the risk is assessed prior to the possible release of the offender to the community. 30 Thirdly, the construction contended for by the respondent is inconsistent with the plain and ordinary meaning of s 35. To construe the word 'application' in s 35 as a reference to the entire court process including the final hearing of a restriction order proceeding is to construe s 35 of the Act in a way that is inconsistent with its purpose. As McHugh J observed in Newcastle City Council v GIO General Ltd14 'if the legislation uses language which only covers one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.' 31 In my view, the word 'application' in s 35 of the Act clearly refers to the originating process filed in the court to commence the restriction order application. The date upon which the application is filed must be within 1 year of the date the offender might possibly be released from custody. If I were to prefer the respondent's contention, it would mean that there would be no necessity for a preliminary hearing as provided for in s 46 of the Act, or for any interim detention or supervision order to be made pending the final hearing, because the final restriction order hearing would need to have taken place before the respondent's possible release from custody. That is clearly not the purpose or intention of the Act. 32 For these reasons, I find that upon a proper construction of s 35 of the Act, if an offender is in custody, an application for a restriction order must be formally lodged within one year before the date upon which there is a possibility the offender might be released from custody. 33 I therefore turn to consider whether the Application was made in accordance with s 35 of the Act. Is the Application made in accordance with s 35 of the Act? 34 It is at the date of the lodgement of the Application that I must assess whether there was a possibility that the respondent might be 14 Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 113, cited with approval in Chief Executive Officer, Dept of Water and Environmental Regulation v Waroona Resources Pty Ltd [2023] WASCA 73 [38]. -- 10 of 11 -- [2026] WASC 265 WHITBY J Page 11 released from custody. This must be considered in light of the knowledge that the State had at that time. 35 On 26 March 2026, the date the Application was formally lodged by the State, the State was aware of the following matters: (1) the respondent had a maximum sentence date for the Index Offences of 5 June 2026; (2) the respondent had pleaded guilty to the Sentencing Charges and the next hearing date was on 17 April 2026 in the Initial Sentence Mention List in the District Court; and (3) the respondent's trial for the Further Charges, which commenced on 18 March 2026, had resulted in a hung jury. The next mention date for the Further Charges was 17 April 2026. 36 It is also important to consider what the State did not know at that date. The State did not know what sentence the respondent would receive for the Sentencing Charges and it did not know whether the Further Charges would be discontinued or if not, whether the respondent would be granted bail on the Further Charges. 37 Having regard to the matters the State did know, and those it did not, there was clearly a possibility that the respondent might be released from custody on 5 June 2026. 38 The State therefore made the Application on 26 March 2026 in accordance with s 35 of the Act. 39 It follows that the respondent's application to dismiss the Application is refused. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CS Associate to the Hon Justice Whitby 30 JUNE 2026 -- 11 of 11 --