A v Wood
[2019] WASC 337
•16 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: A -v- WOOD [2019] WASC 337
CORAM: ACTING JUSTICE STRK
HEARD: ON THE PAPERS
DELIVERED : 16 SEPTEMBER 2019
PUBLISHED : 16 SEPTEMBER 2019
FILE NO/S: SJA 1026 of 2019
BETWEEN: A
Appellant
AND
ROBERT WILLIAM WOOD
Respondent
ON APPEAL FROM:
For File No: SJA 1026 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE D TEMBY
File Number : RO 3880 of 2013
Catchwords:
Criminal law - Appeal against conviction after plea of guilty - Miscarriage of justice - Lengthy delay in commencing the appeal - Criminal Code s 557K - No record of conviction by operation of the Young Offenders Act 1994 (WA) s 189(2) - The appellant was not a 'child sex offender' for the purpose of the Criminal Code s 557K (6)(b) at the relevant time
Legislation:
Children's Court of Western Australia Act 1988 (WA)
Community Protection (Offender Reporting) Act 2004 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Sentencing Act 1995 (WA)
Young Offenders Act 1994 (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | K J Farley SC |
| Respondent | : | B D Nelson |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
AD v Western Australia [No 2] [2007] WASCA 207
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Birch v The State of Western Australia [2017] WASCA 19
Borsa v The Queen [2003] WASCA 254
Briggs v Houlihan [2018] WASC 301
De Bono v Southam [2018] WASCA 218
Lancaster v The Queen [1989] WAR 83
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Liberti v The Queen (1991) 55 A Crim R 120
Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154
Pavlovic v Spooner [2014] WASCA 31
Robertson v The State of Western Australia [2009] WASCA 83
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Snook v The State of Western Australia [No 2] [2015] WASCA 29
The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51
Vella v The State of Western Australia [2006] WASCA 129
Wimbridge v The State of Western Australia [2009] WASCA 196
Windie v The State of Western Australia [2012] WASCA 61
WO (A Child) v Western Australia [2005] WASCA 94; (2005) 153 A Crim R 352
ACTING JUSTICE STRK:
This is an appeal against conviction recorded on 15 August 2013. The appellant pleaded guilty to one charge of being a child sex offender who, without reasonable excuse, was in a public place where children are regularly present, and were present at the time, contrary to the Criminal Code (WA) s 557K(6)(b).
This appeal was commenced on 20 February 2019, over five years from the date of conviction. The following ground of appeal is pressed:
1. The conviction for an offence under s 557K (6)(b) Criminal Code constitutes a miscarriage of justice as, at the relevant time, the Appellant was not a 'child sex offender' for the purpose of the section.
On 18 March 2019, it was ordered that the name of the appellant be suppressed and substituted with the letter 'A'. The suppression order extends to these reasons. A suppression order was also made by the learned magistrate pursuant to the Community Protection (Offender Reporting) Act 2004 (WA) on 15 August 2013. Such order applies to the identity and address of the appellant, as well as the details of the offence the subject of this appeal. That order will also be observed in these reasons.
In this proceeding, it was ordered that the appellant's application for an extension of time to appeal and the application for leave to appeal be heard with the appeal. At the request of the parties, the applications and the appeal were to be determined on the papers.
The appellant relies on the outline of submissions filed on 20 February 2019. Also before me are the affidavit of Ms Farley SC, Senior Counsel at Legal Aid, filed 20 February 2019; the transcript of hearing before the learned magistrate on 15 August 2013; the outline of submissions filed on behalf of the respondent; and the affidavit of Ms Bagdonavicius, the Public Advocate in Western Australia, filed on 20 February 2019. Annexed to the affidavit of Ms Bagdonavicius, among other things, is a copy of the appellant's criminal history.
For the reasons set out below, I find that there has been a miscarriage of justice as the appellant was not a 'child sex offender' for the purpose of the Criminal Code s 557K(6)(b) at the relevant time.
Background
Guardianship
The appellant was born in September 1992. The appellant has an intellectual disability and is a client of the Disability Service Commission.
On 26 May 2010, the State Administrative Tribunal made orders pursuant to the Guardianship and Administration Act 1990 (WA) appointing the Public Advocate as the appellant's plenary guardian upon the appellant turning 18 years of age. The orders made by the State Administrative Tribunal remain current.
The appellant's offending history
Relevantly, the appellant has been convicted and sentenced in the following manner:
Charge number
Offence
Date of commission
Sentence
FR 382 of 2007
Indecent dealing with a child under 13 years old (Criminal Code s 320(4))
25 February 2007
24 July 2007: 6 month community based order with supervision
PE 4043 of 2008
Indecent dealing with a child under 13 years old (Criminal Code s 320(4))
1 July 2008
10 October 2008: 6 month conditional release order
PE 4044 of 2008
Indecent dealing with a child under 13 years old (Criminal Code s 320(4))
1 July 2008
10 October 2008: 6 month conditional release order
MI 660 of 2010
Unlawful and indecent assault
(Criminal Code s 323)14 August 2010
3 February 2011: 1 year conditional suspended imprisonment order
RO 3880 of 2013
Child sex offender being near a public place (Criminal Code s 557K(6)(b))
5 June 2013
15 August 2013: Adult 1 year conditional release order; $1,000
The appellant was a juvenile at the time of the commission of all but the last offence (RO 3880 of 2013). For all but the last offence, the appellant was a 'young person' as defined in the Young Offenders Act 2004 (WA) ss 3 and 4. Save for the last offence, the charges were dealt with by the Children's Court of Western Australia.
FR 382 of 2007
The appellant was placed on a youth community based order for six months with supervision for one count of indecently dealing with a child under the age of 13 years contrary to the Criminal Code s 320(4). The youth community based order was completed successfully.
PE 4043-4044 of 2008
On 10 October 2008, the appellant was placed on a six month conditional release order for two counts of indecently dealing with a child under the age of 13 years contrary to the Criminal Code s 320(4). The appellant did not breach the conditional release order which expired on or about 10 April 2009.
MI 660 of 2010
The appellant was charged with one count of unlawful and indecent assault contrary to the Criminal Code s 323. On 13 February 2011, the appellant was convicted and placed on a conditional suspended imprisonment order for one year. The appellant did not breach the conditional suspended imprisonment order, which was discharged on 13 February 2012.
RO 3880 of 2013
On 15 August 2013, the appellant pleaded guilty to one charge of being a child sex offender who, without reasonable excuse, was in a public place where children are regularly present, and were present at the time, contrary to the Criminal Code s 557K(6)(b).
The offence was said to have taken place on 5 June 2013. That is, the appellant pleaded guilty to being a child sex offender as at 5 June 2013, and to being in a public place where children were regularly present, and were present at the time.
The appellant was convicted and placed on a $1,000 adult conditional release order for a period of one year. The appellant did not reoffend during that period and did not forfeit the $1,000.
A child protection order was subsequently made by Petrusa J on 14 August 2015 pursuant to the Community Protection (Offender Reporting) Act 2004 (WA), which order was varied by Birmingham J on 12 January 2018. It appears to be common ground that the conviction entered on 15 August 2013 was part of the evidence presented to the District Court as part of the application for the order.
The appeal
The Criminal Appeals Act 2004 (WA) s 7(1) allows an aggrieved party to appeal to a single judge of this court in respect of a decision made by a court of summary jurisdiction. Pursuant to the Criminal Appeals Act s 8(1)(b), such an appeal may be made on the ground that there has been a miscarriage of justice. The Criminal Appeals Act s 8(2) expressly provides that an appeal may be instituted against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter.
The appeal was commenced on 20 February 2019 concerning the conviction of the appellant, by his own plea of guilty, to the offence of being a child sex offender who without reasonable excuse was in a public place where children are regularly present, and were present at the time, contrary to the Criminal Code s 557K(6)(b). The appellant contends that the conviction constitutes a miscarriage of justice as, at the relevant time, the appellant was not a 'child sex offender' for the purpose of the section.
The respondent supports the appellant's applications for an extension of time and for leave to appeal. The respondent also accepts that the ground of appeal has been made out. The position adopted by the respondent is not however determinative of the matter.
The well-established principles concerning an appeal against conviction entered after a plea of guilty were restated by the Court of Appeal in Lawson v The State of Western Australia [No 2]:[1]
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is, in truth, guilty or not guilty. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a person does act on such a plea, even if the person entering it is not, in truth, guilty of the offence [Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141].
[1] Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [17] ‑ [19], cited in De Bono v Southam [2018] WASCA 218 [18].
The circumstances in which a conviction based on a plea of guilty will be set aside were explained in Vella v The State of Western Australia.[2] Steytler P (Wheeler & Buss JJA concurring) made the following observation at [26]:
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like. (citations omitted)
[2] Vella v The State of Western Australia [2006] WASCA 129.
The circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed.[3] However, it is well settled that once a plea of guilty is entered and a conviction has been recorded, the approach to an application to change the plea is one of 'caution bordering upon circumspection'.[4]
[3] Vella v The State of Western Australia [26]; De Bono v Southam [18]; Lawson v The State of Western Australia [No 2] [19].
[4] Liberti v The Queen (1991) 55 A Crim R 120, 122; Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454 [174]; Borsa v The Queen [2003] WASCA 254 [20]; Windie v The State of Western Australia [2012] WASCA 61[31]; Snook v The State of Western Australia [No 2] [2015] WASCA 29 [103] ‑ [104].
The ultimate question to be determined is whether the appellant has established, on the balance of probabilities, and in all of the circumstances, that a miscarriage of justice has occurred.[5]
[5] Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154 [60].
Extension of time
An appeal against a decision cannot be commenced later than 28 days after the date of the decision unless the court orders otherwise.[6] The appellant was convicted and sentenced on 15 August 2013 and the appeal was commenced out of time on 20 February 2019.
[6] Criminal Appeals Act s 10(3).
The court will grant an extension of time for appeal if it is in the interests of justice to do so.[7] Where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.[8]
[7] Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [108], applied in Briggs v Houlihan [2018] WASC 301 [47].
[8] Robertson v The State of Western Australia [2009] WASCA 83 [9]; Lancaster v The Queen [1989] WAR 83, 85; AD v Western Australia [No 2] [2007] WASCA 207 [5]. See also Wimbridge v The State of Western Australia [2009] WASCA 196 [19] ‑ [20].
Exceptional circumstances are not closed. A compelling explanation for the delay in commencing the appeal will generally constitute exceptional circumstances.[9] Generally, the court must be satisfied there is some special feature which warrants the extension of time, notwithstanding the lengthy delay.[10]
[9] Wimbridge v The State of Western Australia [20].
[10] Wimbridge v The State of Western Australia [48].
In support of the application for an extension of time, the appellant relies on the affidavit of Ms Farley SC, together with the affidavit of the appellant's plenary guardian, Ms Bagdonavicius.
Ms Bagdonavicius deposes to having received a communication in relation to the appellant from the Western Australian Police Force Sex Crime Division in February 2019.[11] By that letter, Ms Bagdonavicius was informed that the Sex Offender Management Squad of the Western Australian Police Force had recently conducted an audit in relation to the appellant, and had identified two matters of concern. First, that on 15 August 2013, the appellant had been convicted of an offence in error, due to the Young Offenders Act s 189 not being considered. Secondly, if the appellant's conviction for breach of the Criminal Code s 557K(6)(b) were set aside, and if as a consequence it was clear that the appellant had no ongoing reporting obligations under the Community Protection (Offender Reporting) Act, then the continued operation of the child protection order would appear to be inconsistent with the Community Protection (Offender Reporting) Act s 91(3).
[11] Affidavit of Ms Bagdonavicius filed 20 February 2019, par 6, 'B'.
Ms Bagdonavicius deposes that it was only upon receiving the letter that she had any concern about the conviction and sentence imposed on 15 August 2013.[12] She also deposes to having taken immediate steps to instruct counsel to provide an opinion in relation to the matter and applied for Legal Aid in that regard.[13]
[12] Affidavit of Ms Bagdonavicius filed 20 February 2019, par 13.
[13] Affidavit of Ms Bagdonavicius filed 20 February 2019, par 13.
I find that exceptional circumstances have been shown, and the explanation for delay in commencing this appeal to be sufficiently compelling. I note that, the respondent supports the appellant's application for an extension of time.[14]
[14] Respondent's submissions (7 March 2019) [9].
Leave to appeal
This is an appeal made pursuant to Criminal Appeals Act pt 2, and the appellant requires leave to appeal.[15]
[15] Criminal Appeals Act s 9(1).
The court must not give leave to appeal on a ground of appeal unless it is satisfied such ground has a reasonable prospect of succeeding.[16] That means that the ground must be judged to have a 'rational and logical prospect of succeeding', so that, in effect, it has a real prospect of success.[17]
[16] Criminal Appeals Act s 9(2).
[17] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
If leave to appeal is refused, the appeal is taken to be dismissed.[18] If leave to appeal is granted, the court may dismiss or allow the appeal, and may set aside the sentence imposed, and may substitute a sentence that should have been imposed.[19]
[18] Criminal Appeals Act s 9(3).
[19] Criminal Appeals Act s 14(1).
Disposition
Statutory framework
I begin my examination of the merits of the appeal by setting out the statutory framework.
Young Offenders Act s 189
The Young Offenders Act is an act which provides for the administration of juvenile justice. The objectives of the Act include prescribing provisions which embody 'the general principles of juvenile justice, for dealing with young persons who have, or are alleged to have, committed offences.'[20]
[20] Young Offenders Act s 6(b).
The Young Offenders Act places significant emphasis on the sentencing objective of rehabilitation,[21] and s 189 operates to relieve offenders of the long‑term consequences of convictions recorded against them as a juvenile.[22] Section 189 is reproduced at sch A to these reasons.
[21] The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51 [16]; citing WO (A Child) v Western Australia [2005] WASCA 94; (2005) 153 A Crim R 352, 362.
[22] Pavlovic v Spooner [2014] WASCA 31 [13].
If either of the conditions set out in s 189(2)(a) or (b) are satisfied, the Young Offenders Act s 189(2) operates so that a conviction recorded against an offender is not to be regarded as a conviction for any purpose, except as provided for s 189.
There are express limits to the operation of s 189.[23] Such limits are not relevant to the facts which give rise to this appeal.
Criminal Code s 557K
[23] Notably the section does not apply to those persons convicted of murder, attempt to murder or manslaughter: Young Offenders Act s 189(1).
The conviction sought to be quashed was entered for contravention of the Criminal Code s 557K(6)(b). Section 557K is reproduced at sch B to these reasons.
Section 557K(6)(b) may only be contravened by a 'child sex offender', as that term is defined in the Criminal Code s 557K(1).
Was the appellant a 'child sex offender' on 15 June 2013?
In this case, the Young Offenders Act s 189 operated so that the appellant was not a 'child sex offender' as defined by the Criminal Code s 557K(1) on 5 June 2013.
As noted above, in relation to charge FR 382 of 2007, the appellant was placed on a youth community based order for six months with supervision for one count of indecently dealing with a child under the age of 13 years contrary to the Criminal Code s 320(4). The youth community based order was completed successfully.
When a 'young person' is convicted of an offence and placed on a youth community based order, unless the person has been subsequently dealt with for that offence, the conviction is not regarded as a conviction for any purpose, except as provided for in the Young Offenders Act s 189.[24]
[24] Young Offenders Act s 189(5).
As the youth community based order was completed successfully, the appellant's conviction for the offence committed on 25 February 2007 could not be regarded as a conviction for the purpose of the Criminal Code s 557K.
As noted above, on 10 October 2008, the appellant was placed on a six month conditional release order for two counts of indecently dealing with a child under the age of 13 years contrary to the Criminal Code s 320(4). The appellant did not breach the conditional release order which expired on or about 10 April 2009. By April 2011, two years had expired since the discharge of the sentence imposed and by operation of the Young Offenders Act s 189(2)(a), the appellant's conviction could not at the relevant time, being 5 June 2013, be regarded as a conviction for the purpose of the Criminal Code s 557K.
The appellant was also charged with one count of unlawful and indecent assault contrary to the Criminal Code s 323. On 13 February 2011, the appellant was convicted and placed on a conditional suspended imprisonment order for one year. The appellant did not breach the conditional suspended imprisonment order, which was discharged on 13 February 2012. The conviction was recorded, and the appellant did not have the relief afforded by the Young Offenders Act s189(2)(a), as at 5 June 2013.[25]
[25] Young Offenders Act s 189(4).
However, the indecent assault was not an offence under the Criminal Code ch XXXI that was committed against, in respect of, or in the sight of, a child. The prosecution notice for charge MI 660 of 2010 records that the conviction for indecent assault was as a statutory alternative to the initial charge of indecently dealing with an incapable person contrary to the Criminal Code s 330(4).[26] I accept the respondent's submission that the appellant's conviction on 13 February 2011 was not a conviction which would result in the appellant falling within the meaning of a 'child sex offender' under s 557K(1).
[26] A certified copy of prosecution notice for charge MI 660 of 2010 was attached to the respondent's outline of submissions.
Therefore, I am satisfied that as at 5 June 2013, the appellant did not fall within the meaning of a 'child sex offender' under the Criminal Code s 557K(1).
Was there a miscarriage of justice?
It is appropriate to consider whether all of the facts, in the circumstances of this case, establish a miscarriage of justice.
I am satisfied that this is an appropriate case for the court to set aside a conviction based on plea of guilty. A miscarriage of justice has been demonstrated on behalf of the appellant. The appellant, who has an intellectual disability, entered a plea of guilty to an offence which the appellant could not in law have been guilty.
It is appropriate that the appellant's applications for an extension of time in which to commence the appeal and for leave to appeal be granted, and the appeal will be allowed.
The conviction of 15 August 2013 should be quashed. I note that the appellant was placed on a $1,000 conditional release order for 12 months. The appellant did not reoffend during that period and did not forfeit the sum.
Orders
Subject to hearing from the parties, I propose to make orders in the following terms.
1.The time to lodge the appeal is extended to 20 February 2019.
2.Leave to appeal is granted.
3.The appeal is allowed.
4.The conviction for RO 3880 of 2013 is quashed and a judgment of acquittal is entered.
SCHEDULE A - Young Offenders Act1994 (WA) s 189
189.Certain offenders to be regarded as not convicted
(1)This section does not apply to, or in relation to, a person convicted of murder, attempt to murder or manslaughter.
(2)If a young person is convicted of an offence and a period of 2 years has expired since ‑
(a)the discharge of any sentence imposed as a result of the conviction, or every sentence if more than one sentence was imposed; or
(b)the date of conviction, if no sentence that required to be discharged was imposed as a result of the conviction,
the conviction is not to be regarded as a conviction for any purpose, except as provided in this section.
(3)On the application of the person concerned the court, fit thinks that special circumstances exist, may declare that subsection (2) applies in relation to a conviction of a young person even though the period of 2 years mentioned in that subsection has not expired.
(4)In subsection (2), the reference to a sentence imposed as a result of a conviction includes a reference to an order made as a result of the conviction, and when the order has been fully complied with the sentence is to be regarded as having been discharged.
(5)If a young person is convicted of an offence and a youth community based order is made as a result of the conviction, unless the person has been subsequently dealt with for that offence the conviction is not to be regarded as a conviction for any purpose, except as provided in this section.
(6)The reference in subsection (5) to a youth community based order includes a reference to a probation order or community service order made under the Child Welfare Act 1947 before the commencement of section 198.
(7)This section does not prevent ‑
(a)a person in respect of whom a youth community based order has been made upon the person's conviction of an offence from being subsequently dealt with for the offence as a person so convicted if a condition of the order is not observed; or
(b)any subsequent proceedings that may be taken against the offender under this Act or on indictment in relation to the offence to which this section applies or for a subsequent offence; or
(c)a court having regard to a conviction for the purposes of the Dangerous Sexual Offenders Act 2006 section 7(3); or
(d)the making of a record of anything that paragraph (a), (b) or (c) allows.
(8)This section does not affect ‑
(a)the right of a person to appeal against a conviction or to rely on a conviction in bar of any subsequent proceedings for the same offence; or
(b)the revesting or restoration of any property in consequence of the conviction; or
(c)the right of a court to disqualify a person from holding or obtaining a driver's licence as that term is defined in the Road Traffic (Administration) Act 2008 section 4; or
(d)any cancellation or disqualification that occurs by operation of any written law.
(9)Part 3 of the Spent Convictions Act 1988 has effect in relation to a conviction that, under this section, is not to be regarded as a conviction as if it were a spent conviction under that Act.
SCHEDULE B - Criminal Code s 557K
557K. Child sex offender, offences by
(1)In this section, unless the contrary intention appears ‑
child means a person under 18 years of age;
child care centre means a place where –
(a)an education and care service as defined in the Education and Care Services National Law (Western Australia) section 5(1) operates; or
(b)a child care service as defined in the Child Care Services Act 2007 section 4 is provided;
child sex offender means a person who has been convicted of ‑
(a)an offence under any of these Chapters of this Code that was committed against, in respect of, or in the sight of, a child –
(i)Chapter XXII - Offences against morality;
(iia)Chapter XXV - Child exploitation material;
(ii)Chapter XXXI - Sexual offences;
(iii)Chapter XXXIII - Offences against liberty;
or
(a)an offence under Chapter XXXIIIB that was committed against or in respect of a child; or
(b)an offence under any of these repealed enactments of this Code that was committed against a child –
(i)section 315 (Indecent assault on males);
(ii)Chapter XXXIA - Sexual assaults;
(iii)Chapter XXXII - Assaults on females: Abduction;
or
(da)an offence under any of these provisions of The Criminal Code set out in the Schedule to the Criminal Code Act 1995 (Commonwealth) -
(i)Division 272 - Child sex offences outside Australia;
(ii)Division 273 - Offences involving child pornography material or child abuse material outside Australia;
(iii)Division 273 - Offences involving child pornography material or child abuse material outside Australia;
(iv)Division 474 Subdivision F- Offences relating to use of carriage service involving sexual activity with person under 16;
or
(db)an offence under the repealed Part IIIA Division 2 of the Crimes Act 1914 (Cth); or
(a)an offence under section 59 of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 that was committed in circumstances in which an indecent or obscene article was sold, supplied or offered to a child; or
(b)an offence under the deleted section 60 of the Classification (Publications, Films and Computer Game) Enforcement Act 1996; or
(c)an offence under section IOI of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 that was committed in circumstances in which –
(i)objectionable material was transmitted or demonstrated to a child; or
(ii)the objectionable material was child exploitation material (as defined in section 217A) (footnotes omitted);
or
(a)an offence under section 102 of the Classification (Publications, Films and Computer Games) Enforcement Act 1996; or
(b)an offence committed under section 5(1), 6(1), 15, 16, 17 or 18 of the Prostitution Act 2000 committed against or in respect of a child; or
(c)an offence under this section; or
(d)an offence under the repealed section 66(11) of the Police Act 1892 committed in the sight of a child; or
(e)an offence against a law of a jurisdiction other than Western Australia that is substantially similar to an offence referred to in any of paragraphs (a) to (j);
consort includes to communicate in any manner.
(2)A reference in paragraph (a) or (b) of the definition of child sex offender in subsection (1) to a Chapter of this Code includes a reference to the Chapter as enacted at any time.
(3)A reference in paragraph (c) of the definition of child sex offender in subsection(1) to an enactment of this Code includes a reference to the enactment as enacted at any time before it was repealed.
(4)A person who is a child sex offender and who, having been warned by a police officer ‑
(a)that another person is also a child sex offender; and
(b)that consorting with the other person may lead to the person being charged with an offence under this section, habitually consents with the other person is guilty of an offence and is liable to imprisonment for 2 years and a fine of $24 000.
(5)It is a defence to a charge of an offence under subsection (4) to prove that the accused person ‑
(a)was the spouse or de facto partner of the other person; or
(b)was a de facto child or a lineal relative (as those terms are defined in section 329(1)) of the other person.
(6)A child sex offender who, without reasonable excuse, is in or near a place that is ‑
(a)a school, kindergarten or child care centre; or
(b)a public place where children are regularly present,
and where children are at the time is guilty of an offence and is liable to imprisonment for 2 years and a fine of $24 000.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EP
Associate to Principal Registrar Strk
16 SEPTEMBER 2019
19
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