Adwell Holdings Pty Ltd v Bourne

[2007] NSWSC 17

Reported Decision: 168 A Crim R 530

New South Wales

Supreme Court

CITATION:	Khanna v Commissioner of Police NSW [2007] NSWSC 17
HEARING DATE(S):	31 October 2006
JUDGMENT DATE :	30 January 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
DECISION:	Declare that upon proper construction of (NSW) Child Protection (Offenders Registration) Act 2000 and in events which have happened, plaintiff is not a “registrable person” for purposes of that Act. Order that defendant be restrained from making any entry in the Child Protection Register kept under s 19 of that Act in respect of plaintiff. Order that defendant pay plaintiff’s costs.
CATCHWORDS:	CRIMINAL LAW – Registration of child sex offenders – where plaintiff convicted and sentenced in Victoria to imprisonment wholly suspended – whether plaintiff is a “registrable person” for the purposes of the NSW Registration Act - whether Victorian suspended sentence of imprisonment is a sentence which includes a term of imprisonment for purposes of (NSW) Child Protection (Offenders Registration) Act 2000, s 3A – whether suspended sentence of imprisonment is a sentence which includes a requirement that offender be under supervision - whether relief should be refused on discretionary grounds arising from recent retrospective amendment to Victorian legislation - Child Protection (Offenders Registration) Act 2000, s 3, 3A, 3C
LEGISLATION CITED:	(CTH) Migration Act 1958, s 201(c) (NSW) Child Protection (Offenders Registration) Act 2000, s 3, 3A, 3C, 4, 5, 6, 9A, 14, 19 (NSW) Child Protection (Offenders Registration) Regulations 2001, cl 5B (NSW) Crimes Act 1900, s 61N(1) (NSW) Crimes (Sentencing Procedure) Act 1999, ss 5, 6, 7, 8, 9, 10, 11, 12, 98, 99 (NSW) Interpretation Act 1987, s 34(1)(b)(i), 34(2)(f) (VIC) Corrections Act 1986, s 6C(1) (VIC) Crimes Act 1958, ss 45(1), 47(1) (VIC) Sentencing Act 1991, s 27 (VIC) Sex Offenders Registration Act 2004, s 12
CASES CITED:	DPP v Neisser [2006] VSC 218 Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 Meng Kok Te v Minister for Immigration & Ethnic Affairs (1999) 88 FCR 264 Regina v LRS [2001] NSWCCA 338 Regina v Zamagias [2002] NSWCCA 17
PARTIES:	Ajan Khanna (plaintiff) Commissioner of Police NSW (defendant)
FILE NUMBER(S):	SC 5415/06
COUNSEL:	Mr C B Simpson (plaintiff) Ms M T England (defendant)
SOLICITORS:	Karp O'Neill (plaintiff) I V Knight, Crown Solicitor (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday 30 January 2007

5415/06 Ajan Khanna v Commissioner of Police for NSW

JUDGMENT

1 HIS HONOUR: The plaintiff Ajan Khanna was, on 9 July 2004, in the County Court of Victoria, convicted of an offence against (VIC) Crimes Act 1958, s 47(1), of committing on or about 21 April 1998, an indecent act with a child under the age of 16, and sentenced to a term of imprisonment for 12 months, which was wholly suspended for 18 months. The defendant Commissioner of Police for New South Wales contends that Mr Khanna is a registrable person whose name and other particulars must be entered on the Child Protection Register maintained under the (NSW) Child Protection (Offenders Registration) Act 2000 (“the NSW Registration Act”). Mr Khanna claims a declaration that he is not a registrable person, and an injunction restraining the Commissioner from making any entry in respect of him in the Register.

Background

2 In October 2002, Mr Khanna was charged with an offence under (VIC) Crimes Act 1958, s 45(1), of taking part in an act of sexual penetration with a child under the age of 16, and later with an alternative count under s 47(1) of committing an indecent act with a child under the age of 16. The incident to which the charges related occurred on or about 21 April 1998, when Mr Khanna was aged 24 and the child was aged seven. Mr Khanna pleaded not guilty. After a five day trial, which commenced on 5 July 2004, in the County Court of Victoria at Melbourne before Nixon CCJ and a jury of 12, he was acquitted of the charge under s 45, but found guilty of the alternative count under s 47, the conduct alleged against him in this respect involving the touching of the child’s vaginal area, without penetration.

3 Mr Khanna was sentenced to a term of imprisonment for 12 months, wholly suspended for 18 months. The sentence did not require Mr Khanna to be under the supervision of any supervising authority or any other person, and he was not required to enter into any bond. The sentencing judge refused the prosecution’s application for a Buccal swab, saying:

I am prepared to accept that this was an isolated lapse … . I think one can never be sure, but I think he is unlikely to reoffend in this manner. Therefore, given all the circumstances, I don’t believe it’s appropriate to make such an order.

4 Mr Khanna has no other convictions. The sentencing judge accepted that his prospects of rehabilitation were very good, given his previous good character and the other evidence before the court, and that the offence was “an isolated lapse”.

5 Although the evidence is not entirely clear, Mr Khanna seems always to have been a resident of New South Wales, and was in Victoria for a few days only at the time of the offence.

6 The (VIC) Sex Offenders Registration Act 2004 (“the Victorian Registration Act”) requires certain offenders who commit sexual offences to keep police informed of their whereabouts, and prevents registered sex offenders working in child-related employment. Mr Khanna has not been entered on the Child Protection Register in Victoria, and it is common ground that, at least until recently, he is not a registrable person in Victoria. An officer of the Victorian Director of Public Prosecutions has indicated to Mr Khanna’s representatives that it is not proposed to seek to have him placed on the Victorian register.

7 The NSW Registration Act imposes requirements and obligations relating to reporting and registration for persons who have committed sexual and other serious offences against children. On Friday 16 June 2006, New South Wales Police contacted Mr Khanna with a request that he complete a Form 3 Notice under the NSW Registration Act, which is a step in the registration process. Mr Khanna’s solicitors have requested that the NSW Police reconsider their position, but on 9 October 2006 the police indicated that they intended to proceed with steps towards registration. Mr Khanna instituted these proceedings on 23 October 2006, and when it became apparent that the police were not prepared to await the determination of the proceedings, moved ex parte on 24 October 2006 for an interlocutory injunction. On that day, upon Mr Khanna by his counsel giving to the court the usual undertaking as to damages, it was ordered that until 31 October 2006 the Commissioner be restrained from making any entry in the register in respect of Mr Khanna. The proceedings were stood over to 31 October 2006, on which date I heard them on a final basis, extending the interlocutory injunction until judgment.

8 Two issues arise:

· Is Mr Khanna, as the Commissioner contends, a “registrable person” for the purposes of the NSW Registration Act?

· If not, should the relief sought nonetheless be declined on discretionary grounds, as the Commissioner submits?

Is Mr Khanna a “registrable person”?

9 The Register is established by s 19 of the NSW Registration Act, which provides as follows:

Child Protection Register

(1) The Commissioner of Police is to establish and maintain a Child Protection Register or arrange with another person or body for the establishment and maintenance of a Child Protection Register on the Commissioner’s behalf.
(2) The Register is to contain the following information in respect of each registrable person (to the extent that it is known by the Commissioner of Police):
(a) the person’s name and other identifying particulars,
(b) details of each Class 1 or Class 2 offence of which the person has been found guilty or with which the person has been charged,
(c) details of each offence of which the person has been found guilty that resulted in the making of a child protection registration order,

(d) the date on which the person was sentenced for any registrable offence,

(e) the date on which the person ceased to be in government custody in respect of a registrable offence, or entered or ceased to be in government custody in respect of any offence during the person’s reporting period,
(f) whether the person is a child or has any special need or disability,
(g) any information provided to the Commissioner in respect of the person under this Part,
(h) any information the Commissioner considers appropriate for inclusion in the Register,
(i) any other information prescribed by the regulations.

10 Reporting obligations are imposed on a “registrable person” in respect of a “registrable offence”, beginning from the later of when the person is sentenced for the offence or when the person ceases to be in government custody in relation to the offence [s 14], and continuing for eight years (if the person has only ever been found guilty of a single “class 2 offence”), or longer in other cases [s 14A]. The reporting obligations include reporting the person’s “relevant personal information” to the Commissioner within 28 days after the later of ceasing to be in government custody or being sentenced for the registrable offence, or (if the person enters NSW from a “foreign jurisdiction”) within 14 days after entering and remaining for 14 or more consecutive days, or (if the person is a “corresponding registrable person”, within 28 days after becoming a corresponding registrable person [s 9A]. A registrable person must then report the person’s relevant personal information to the Commissioner each year.

11 Who is a “registrable person” is defined in the NSW Registration Act by s 3A, as follows:

3A Registrable persons

(1) A registrable person is a person whom a court has at any time (whether before, on or after the commencement of this section) sentenced in respect of a registrable offence, and includes a corresponding registrable person.
(2) Unless a person is a corresponding registrable person, a person is not a registrable person merely because the person:
…
(b) is a person on whom a sentence has been imposed in respect of a single Class 2 offence, if the sentence did not include:

(i) a term of imprisonment, including a term of imprisonment the subject of a periodic detention order or home detention order, or an equivalent order under the laws of a foreign jurisdiction, or

(ii) a requirement that the person be under the supervision of a supervising authority or any other person or body, …

12 The Commissioner concedes that Mr Khanna is not a “corresponding registrable person” within s 3C. That concession is correctly made. Section 3C provides:

A corresponding registrable person is a person who:
(a) had at any time (whether before, on or after the commencement of this section) been in a foreign jurisdiction and at that time had been required to report to the corresponding registrar in that jurisdiction for a longer period than the person would have been required to report under this Act, and
(b) would, if the person were currently in that jurisdiction, be required to report to the corresponding registrar in that jurisdiction for a longer period (the corresponding foreign reporting period) than the person would be required to report under this Act, and
(c) falls within a class of person whom the regulations prescribe as corresponding registrable persons for the purposes of this Act.

13 The three requirements of s 3C are each linked by the word “and”, and are therefore cumulative, so that all three have to be satisfied if a person is to be a “corresponding registrable person”. Mr Khanna does not satisfy requirement (a). As a result of recent statutory amendments in Victoria, he might now satisfy (b) and (c), but without element (a) that is insufficient to make him a “corresponding registrable person”.

14 As “court” includes a court of a foreign jurisdiction, and “foreign jurisdiction” means a jurisdiction other than New South Wales [s 3(1)], the County Court of Victoria is a relevant court.

15 A “class 2 offence” is defined to mean, inter alia:

(a) an offence that involves an act of indecency against or in respect of a child, being an offence that is punishable by imprisonment for 12 months or more or
…
(j) any offence under a law of a foreign jurisdiction that, if it had been committed in NSW, would have constituted an offence of a kind listed in this definition.

16 Had the offence of which Mr Khanna was convicted been committed in NSW, it would have been an offence against (NSW) Crimes Act 1900, s 61N(1), which provides that “any person who commits an act of indecency with or towards a person under the age of 16 years … is liable to imprisonment for two years”. Accordingly, his offence was a “class 2 offence”.

17 Mr Khanna is therefore within s 3A(1), in that he is a person whom a court has sentenced in respect of a registrable offence, unless he is excluded by s 3A(2)(b). The only sentence imposed on him was one in respect of a single class 2 offence. The essential issue is whether that sentence was one that included a term of imprisonment, for the purposes of s 3A(2)(b)(i), or a requirement that he be under supervision within 3A(2)(b)(ii).

18 Is the Victorian suspended sentence imposed on Mr Khanna a “term of imprisonment” for the purposes of s 3A(2)(b) the NSW Registration Act? This requires identification of what is contemplated by “term of imprisonment” in the NSW Registration Act, and then consideration of whether the Victorian suspended sentence falls within that concept.

19 If s 3A(2)(b)(i) spoke simply of “a sentence of imprisonment”, and not a sentence including “a term of imprisonment” which is then specifically stated to include “a term of imprisonment the subject of a periodic detention order or home detention order” (or their equivalents in other jurisdictions), the position would be unambiguous: there is not room for doubt that a suspended sentence of imprisonment is, generally speaking, to be regarded as a sentence of imprisonment. In Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409, the plaintiff had been convicted of possessing cannabis and was sentenced to imprisonment for 12 months, accompanied by a direction that he be released after three months on entering into a recognizance of $200 to be of good behaviour for two years. The Minister issued a deportation order against him on the ground, authorised by (CTH) Migration Act 1958, s 12, as it then was, that he had been “convicted in Australia of any … offence for which he has been sentenced to imprisonment for one year or longer”. Bowen CJ and Deane J held that the deportation order was authorised, and that s 12 was concerned with the sentence imposed, not the term of imprisonment actually served. Their Honours said (at 418):

It is unfortunate that the liability of a person to be made the subject of a deportation order with all its consequences should depend upon verbal niceties of the type involved in the present matter. There is, indeed, much to be said for the view that a finding that the plaintiff was, for the purposes of s 12 of the Migration Act, sentenced to a term of imprisonment of one year involves a preference for the shadow of verbalism over the substance of reality. In our view, however, this is not so. The fact that the learned magistrate directed that the plaintiff be entitled to be released upon recognizance after he had served three months in prison does not alter the fact that the magistrate determined that the appropriate sentence to be imposed for the offence of which the plaintiff was guilty was a term of imprisonment of one year. The magistrate in fact imposed that sentence of imprisonment. True it is that, by entering into a recognizance and undertaking obligations which, if breached, would render him liable to be sentenced to a new term of imprisonment, the plaintiff was entitled to secure his release after he had served three months of the term imposed and that, on such release, his liability to serve the balance of the term imposed was extinguished. None the less, in our view, the plaintiff was, under the composite sentence imposed, sentenced to a term of imprisonment of one year. We are unable to read the relevant words of s 12 in a sense which would warrant the conclusion that their requirements were not satisfied by the sentence which was imposed upon the plaintiff.

20 In dissent, Smithers J construed s 12 as referring to a sentence of one year’s imprisonment simpliciter, namely a sentence which by its terms requires the person sentenced to serve one year at least in imprisonment. In Meng Kok Te v Minister for Immigration & Ethnic Affairs (1999) 88 FCR 264, the Full Federal Court considered and rejected a submission that Drake was wrongly decided. Their Honours were strongly influenced by the circumstance that after the decision in Drake, the former section was replaced by a very similar section, so that Parliament should be taken to have intended the words to bear the meaning that they had already had judicially attributed to them. In respect of what is now Migration Act, s 201(c), their Honours observed that the section refers to the sentence of imprisonment imposed, not the term of imprisonment actually served; that it directs attention not merely to the sentence imposed but to the quality of the offence committed as reflected in the sentence imposed; that, a fortiori Drake, it was not plain in Meng Kok Te that the applicant would necessarily serve less than 12 months; and that on the appellant’s argument, it would be necessary for the Minister to defer for some time after a suspended sentence had been imposed determination of whether the offender fell within s 201(c).

21 However, in the NSW Registration Act, the circumstance that the provision specifically addresses custodial sentences falling short of full-time imprisonment suggests that Parliament did not contemplate that the phrase “a term of imprisonment” in this context of itself encapsulated sentences of less than full-time custody. While an alternative explanation is that the specific reference to periodic detention and home detention might have been included for more abundant caution, then it remains striking, particularly when one considers the sentencing hierarchy applicable in New South Wales, that there is no corresponding specific reference to a suspended sentence. In (NSW) Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), Part 2 deals with custodial sentences in Division 2: imprisonment (s 5), periodic detention (s 6), and home detention (s 7). It then deals with “non-custodial alternatives” in Division 3: community service orders (s 8), good behaviour bonds (s 9), conditional discharge or dismissal (s 10), deferred sentence (s 11) and suspended sentences (s 12). Thus a suspended sentence under New South Wales sentencing legislation is regarded as a “non-custodial alternative”. In Regina v LRS [2001] NSWCCA 338, Sully J (at [65]) said:

If there had been a proper consideration of those alternatives then, as I understand the scheme of the Act, it necessarily followed that a sentence of imprisonment must be passed. I do not mean passed and served in full time custody. I mean passed. That done, it was then necessary to consider, and to decide, whether service of the sentence thus passed should be: (a) suspended pursuant to s12; (b) service by means of home detention pursuant to s7; (c) service by means of periodic detention pursuant to s6; or, (d) service in full time custody.

22 In Regina v Zamagias [2002] NSWCCA 17, Howie J (with whom Hodgson JA and Levine J agreed) said (at [29]):

So in the second step, where, for example, the term chosen is one of 18 months or less the alternatives generally available would be, in escalating order of severity: an order suspending the sentence; a home detention order; a periodic detention order; full-time custody: R v LRS [2001] NSWCCA 338 per Sully J at [65]. Of course the court has a discretion as to which of the available alternatives is chosen, but that discretion must be exercised according to established sentencing principles.

23 It is clear that a suspended sentence is lower in the sentencing hierarchy than a term of imprisonment the subject of a periodic detention order or a home detention order, which are the two alternatives specifically referred to in s 3A(2)(b)(i).

24 Moreover, Part 4 of the Sentencing Procedure Act does not apply to a sentence of imprisonment which is suspended, except to the extent to which it deals with setting the non-parole period and the balance of the term of the sentence [s 12(3)]. One significant relevant consequence of this is that s 63 (which otherwise requires an offender’s identifying particulars to be taken, including photographs and fingerprints), does not apply in the case of a suspended sentence. In the event of a breach of a good behaviour bond in connection with a suspended sentence, the court must generally revoke the bond [s 98]. If it does so, the order of suspension ceases to have effect and Part 4 applies - except to the extent to which it has already applied in relation to setting a non-parole period - and the sentence “takes effect” [s 99(1)(c)]; the court may direct at that stage that the sentence be served by periodic detention or home detention [s 99]. In other words, a sentence of imprisonment does not “take effect” while suspended.

25 The NSW Registration Act includes provisions that require notice to be given to registrable persons of their reporting obligations. First, notices are to be given by the sentencing court when a registrable person is sentenced for a registrable offence, as soon as practicable after being sentenced, to the person of the reporting obligations, and to the Commissioner and the supervising authority of the fact that the registrable person has been sentenced [s 4]. Next, notices are to be given when a registrable person commences to serve a supervised sentence [s 5], as follows:

5 Notices to be given when registrable person commences supervised sentence for registrable offence

(1) As soon as practicable after a registrable person commences a supervised sentence for a registrable offence, the supervising authority for the person is to give written notice to the person of:

(a) the person’s reporting obligations, and

(b) the consequences that may arise if the person fails to comply with those obligations.

(2) The regulations may make provision for or with respect to the manner and form in which written notice must be given under this section.

(3) In this section, supervised sentence means:

(a) a sentence of imprisonment the subject of a periodic detention order or home detention order, or

(b) a community service order, or

(c) a good behaviour bond under which the person is required to submit to strict supervision, or

(d) an order of detention under section 27 or 39 of the Mental Health (Criminal Procedure) Act 1990 , other than an order that, as originally made, requires the person to be kept in strict government custody.

26 Thirdly, notices are to be given when a registrable person ceases to be in custody or under supervision of a supervising authority, as follows [s 6]:

6 Notices to be given when registrable person ceases to be in custody or under supervision of supervising authority

(1) As soon as practicable before or after a registrable person:

(a) ceases to be in strict government custody, or

(b) ceases to be in government custody, or

(c) ceases to be subject to a supervised sentence (within the meaning of section 5), or

(d) ceases to participate in the Pre-Trial Diversion of Offenders Program under the Pre-Trial Diversion of Offenders Act 1985, or

(e) ceases to be subject to a condition of parole requiring the person to be subject to supervision, or

(f) ceases to be an existing licensee,

whether in respect of a registrable offence or otherwise, the supervising authority for the person is to give written notice of that fact to the Commissioner of Police.

(2) As soon as practicable before or after a registrable person who has been in government custody for 14 or more consecutive days ceases to be in government custody, whether in respect of a registrable offence or otherwise, the supervising authority for the person is to give written notice to the person of:

(a) the person’s reporting obligations, and

(b) the consequences that may arise if the person fails to comply with those obligations.

(3) The regulations may make provision for or with respect to the manner and form in which written notice must be given under this section.

27 From these provisions, it appears that a sentence of imprisonment which is suspended is not a “supervised sentence”, unless accompanied by a bond under which the person is required to submit to strict supervision; and that as a suspended sentence of imprisonment does not “take effect”, a person who receives such a sentence does not “commence” the sentence for the purposes of s 5(1).

28 The matters to which reference has been made raise sufficient doubt as to whether, for the purposes of s 3A(2)(b) of the NSW Registration Act, a sentence is to be taken to include a term of imprisonment if it is wholly suspended to justify consideration of extrinsic material which can assist in the ascertainment of the meaning of the provision, including the relevant Second Reading Speech [(NSW) Interpretation Act 1987, s 34(1)(b)(i), (2)(f)].

29 Upon the second reading of the Child Protection (Offenders Registration) Bill, the Minister (the Hon Carmel Tebbutt, Minister for Juvenile Justice, Minister Assisting the Premier on Youth, and Minister Assisting the Minister for the Environment) said [NSW Legislative Council Hansard, 20 June 2000, p 7055]:

The Bill will also exclude first-time class 2 offenders who receive a fine or unsupervised good behaviour bond. As these offenders are less serious than class 1 offenders, there is no demonstration of actual recidivism, and the court is satisfied that such offenders are not of sufficient risk to the community to warrant any supervision after sentencing.

30 Although the Minister referred specifically to the exclusion of offenders who receive only “a fine or unsupervised good behaviour bond”, the policy which informed that exclusion was the view that such sentences were demonstrative that a court was satisfied that the offender was not of sufficient risk “to warrant any supervision after sentencing”. An unsupervised suspended sentence conveys the same view. There are many similarities between a suspended sentence and an unsupervised good behaviour bond, the significant difference being that, in the case of a good behaviour bond, the possibility of a sentence of imprisonment is deferred; whereas in the case of a suspended sentence of imprisonment, the sentence is imposed but its execution suspended so that it does not “take effect”. The concept of “supervision after sentencing” in the Minister’s speech reflects that of a “supervised sentence” in s 5.

31 In distinction from the Migration Act provisions considered in Drake v Minister and in Meng Kok Te, in each of which the relevant statutory provisions spoke of “sentenced to imprisonment for a period of not less than one year”, or “for one year or longer”, in the NSW Registration Act s 3A(2)(b) speaks of a sentence which includes “a term of imprisonment”, not merely of a “sentence of imprisonment”. I do not think that this distinction is merely semantic, although it is not critical to my conclusion that under New South Wales sentencing law, a person who receives a suspended sentence of imprisonment receives a sentence of imprisonment, but so long as it remains suspended and therefore does not take effect, the sentence does not include a term of imprisonment for the purposes of s 3A(2)(b). That conclusion is primarily founded on the following matters:

· The delineation in s 3A(2)(b)(i) of the (NSW) Child Protection (Offenders Registration) Act 2000 of the types of sentence which disqualify a person from the exception from registration otherwise granted by that section as including terms of imprisonment the subject of a periodic detention order or home detention order (which are custodial sentences under the Sentencing Procedure Act), without stipulating a term of imprisonment the execution of which is suspended (which is a non-custodial alternative under that Act);

· The place of a suspended sentence in the sentencing hierarchy in New South Wales, as reflected in the Sentencing Procedure Act – below terms of imprisonment the subject of a periodic detention order or home detention order;

· The policy indicators in the Second Reading Speech that the significant matter informing the distinction between sentences which lead to registration and those which do not was whether the sentence was of a type which indicated a judgment by the court that the offender did not require further supervision;

· The circumstance that a suspended sentence is not a supervised sentence under s 5(3) of the NSW Registration Act, coupled with the circumstance that a person who receives a suspended sentence of imprisonment never “commences a supervised sentence” for the purposes of s 5(1) unless it takes effect (because of the non-applicability of Part 4 so long as it remains suspended).

32 The nature of a suspended sentence, and the circumstance that a suspended sentence is not a “supervised sentence”, indicate that Parliament did not intend a sentence of imprisonment that was wholly suspended to be excluded from the exemption granted by s 3A(2)(b)(i). The reference in s 3A(2)(b)(i) to “a term of imprisonment, including a term of imprisonment the subject of a periodic detention or home detention order”, was not intended to include a term of imprisonment which was wholly suspended, but was limited to a “custodial sentence” within Part 2, Div 2 of the Sentencing Procedure Act.

33 How does a Victorian suspended sentence relate to this concept? (VIC) Sentencing Act 1991, s 27, provides as follows:

27. Suspended sentence of imprisonment

(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or a part of the sentence if it is satisfied that it is desirable to do so in the circumstances.

…

(2A) The period for which the whole or a part of a sentence of imprisonment may be suspended is-

(a) the length of the suspended term of imprisonment; or

(b) another period specified by the court not exceeding 3 years, in the case of the Supreme Court or the County Court, …

whichever is the longer.

(3) A court must not impose a suspended sentence of imprisonment unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to the provisions of this Act.

(4) A court proposing to make an order suspending a sentence of imprisonment must before making the order explain, or cause to be explained, to the offender in language likely to be readily understood by him or her-

(a) the purpose and effect of the proposed order; and

(b) the consequences that may follow if he or she commits, whether in or outside Victoria, another offence punishable by imprisonment during the operational period of the sentence.

(5) A wholly suspended sentence of imprisonment must be taken to be a sentence of imprisonment for the purposes of all enactments except any enactment providing for disqualification for, or loss of, office or the forfeiture or suspension of pensions or other benefits.

…

29. Effect of suspended sentence

An offender in respect of whom a suspended sentence has been imposed under section 27 only has to serve the sentence or part sentence held in suspense if he or she is ordered to do so under section 31.

31. Breach of order suspending sentence

(1) If at any time during the operational period of a suspended sentence of imprisonment, the offender commits, whether in or outside Victoria, another offence punishable by imprisonment, the offender is guilty of an offence for which he or she may be proceeded against on a charge filed by a prescribed person or a member of a prescribed class of persons.

(2) A proceeding for an offence under sub-section (1) may be commenced at any time up until 3 years after the date on which the offence is alleged to have been committed.

…

(4) Despite anything to the contrary in this or any other Act or in any rule of law, the Supreme Court or the County Court may, if the suspended sentence was imposed by it, hear and determine without a jury an offence against sub-section (1) and, subject to any rules of court, the practice and procedure applicable in the Magistrates' Court to the hearing and determination of summary offences applies so far as is appropriate to the hearing of the offence.

(5) If on the hearing of a charge under sub-section (1) the court finds the offender guilty of the offence, it may impose a level 10 fine and in addition must -

(a) restore the sentence or part sentence held in suspense and order the offender to serve it; or

(b) restore part of the sentence or part sentence held in suspense and order the offender to serve it; or

(c) in the case of a wholly suspended sentence, extend the period of the order suspending the sentence to a date not later than 12 months after the date of the order under this sub-section; or

(d) make no order with respect to the suspended sentence.

(5A) Despite anything to the contrary in sub-section (5), if on the hearing of a charge the court finds the offender guilty of the offence it must, in addition to any fine it may impose under sub-section (5), exercise the power referred to in paragraph (a) of that sub-section unless it is of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the order suspending the sentence was made.

…

(6) If a court orders an offender to serve a term of imprisonment that had been held in suspense, the term must be served-

(a) immediately; and

(b) unless the court otherwise orders, cumulatively on any other term of imprisonment previously imposed on the offender by that or any other court.

34 Thus unlike a New South Wales suspended sentence, in which the order suspending the sentence is accompanied by a requirement that the offender enter into a good behaviour bond [Sentencing Procedure Act, s 12], a Victorian suspended sentence does not involve entry into a good behaviour bond; but the practical effect and consequences are otherwise not substantially different. Like a New South Wales suspended sentence, a Victorian suspended sentence is not a “custodial sentence” within the contemplation of the New South Wales sentencing legislation; it is a sentence of a type which does not include what s 3A(2)(b)(i) of the NSW Registration Act contemplates to be a term of imprisonment.

35 The answer is not provided by (VIC) Sentencing Act, s 27(5). In Meng Kok Te, the Full Federal Court said that in considering the proper construction of Migration Act, s 201(c), it was appropriate to take account of the terms of s 27(8) of the Sentencing Act (VIC), which made provision similar to s 27(5) in respect of a sentence that was partly as distinct from wholly suspended:

This sub-section provides that a partly suspended sentence of imprisonment must be taken for all purposes to be sentence of imprisonment for the whole term stated by the court. The proper construction of Commonwealth legislation cannot be determined by a State enactment unless the Commonwealth law incorporates by reference the provisions of the State legislation. Nonetheless, parliament must have contemplated that s 201(c) of the Migration Act would apply to offenders whose sentences are imposed by State courts under State law. In the absence of clear words indicating a contrary intention, it would be strange if s 201(c) of the Migration Act did not apply to an offender who, under State law, is taken “for all purposes” to have been sentenced to imprisonment for a term of not less than 12 months.

36 In the present context, the proper construction and application of a New South Wales statute cannot be determined by a Victorian statute. While the New South Wales Parliament would have contemplated that the NSW Registration Act would apply to offenders whose sentences were imposed by the courts of other States under the laws of other States, the words of s 3A(2)(b) direct attention to the precise types of sentence involved, and the issue is whether the Victorian suspended sentence falls within the terms of s 3A(2)(b). That issue cannot be determined by (VIC) Sentencing Act, s 27(5).

37 Nor did the sentence imposed on Mr Khanna include a requirement that he be under supervision, for the purposes of s 3A(2)(b)(ii) of the NSW Registration Act. A person upon whom a suspended sentence of imprisonment has been imposed under (VIC) Sentencing Act, s 27, is not under supervision of a supervising authority or any other person or body [DPP v Neisser [2006] VSC 218].

38 Accordingly, for the purposes of s 3A(2)(b)(i) of the NSW Registration Act, the sentence imposed on Mr Khanna did not include a term of imprisonment. Nor, for the purposes of s 3A(2)(b)(ii) did it include a requirement that he be under supervision. It follows that, he is a person on whom a sentence has been imposed in respect of a single class 2 offence, and neither of the two matters that might deprive him of that exemption from registrability applies. In my opinion, therefore, he is not a registrable person.

Should relief be refused on discretionary grounds?

39 The Commissioner submitted that relief should be refused on discretionary grounds because, although until 10 October 2006 Mr Khanna was not a registrable person under the Victorian Act - since he was not an “existing controlled registrable offender” - that position changed with effect from 10 October 2006.

40 The Victorian Act in its original form provided:

6. Who is a registrable offender?

(1) Subject to sub-sections (3) to (6), a registrable offender is a person whom a court has at any time (whether before, on or after 1 October 2004) sentenced for a registrable offence.
…

(3) Unless he or she is a registrable offender because of sub-section (2), a person is not a registrable offender merely because he or she-

…

(c) is a person on whom a sentence has been imposed in respect of a single Class 2 offence, if the sentence did not include-

(i) a term of imprisonment; or
(ii) a requirement that the person be under the supervision of a supervising authority or any other person or body.
(4) Unless he or she is a registrable offender because of sub-section (2) or is an existing controlled registrable offender, a person is not a registrable offender merely because he or she was sentenced for a registrable offence before 1 October 2004.

41 It will be observed that in the Victorian Registration Act, s 6(3)(c)(i) does not include the additional specific references to periodic detention and home detention which appear in the corresponding provision of the NSW Act and which were important to the construction which I have preferred. Given the potentially broader concept of “a term of imprisonment” in the Victorian Act, Mr Khanna might not have been saved from registrability in Victoria by sub-s 3(c); but unless he was an existing controlled registrable offender, he was not registrable by reason of sub-s (4), as he was sentenced before 1 October 2004, namely on 9 July 2004.

42 “Existing controlled registrable offender” was then defined to mean “a person who, as a result of having been sentenced for a registrable offence, was under the supervision of a supervising authority or any other person or body immediately before 1 October 2004”. A person serving a Victorian suspended sentence was not relevantly under supervision and was not an “existing controlled registrable offender” under that definition [DPP v Neisser].

43 However, with effect from 10 October 2006, the definition of “existing controlled registrable offender” in the Victorian Registration Act has been amended to include:

A person who, as a result of having been sentenced for a registrable offence committed when he or she was 18 years of age or older, was immediately before 1 October 2004.
…
(d) serving a sentence referred to in Section 6C(1) of the Corrections Act 1986 …

44 (VIC) Corrections Act 1986, s 6C(1)(d) refers to “a person who is serving a sentence of imprisonment that was wholly or partly suspended and who is in the community in accordance with that sentence”. Immediately before 1 October 2004, Mr Khanna was serving such a sentence. He is therefore within the definition, now, of “existing controlled registrable offender” within the meaning of the Victorian Act.

45 However, Mr Khanna will not incur reporting obligations in Victoria unless and until he enters and remains in Victoria for fourteen days [Victorian Registration Act, s 12]. Only then would he become a “corresponding registrable person” for the purposes of the NSW Act, because so far as the evidence goes he has not been required to report to the corresponding registrar in Victoria at any time when he has been in Victoria [NSW Registration Act, s 3C(a)]. There is no suggestion that he has been in Victoria since 10 October 2006. And as element (a) is not satisfied, it matters not that he would if currently in Victoria be required to report [s 3C(b)], nor that he now falls within the class of “registrable offenders” within the Victorian Act and is therefore in a prescribed class for the purposes of the NSW Registration Act [s 3C(c); (NSW) Child Protection (Offenders Registration) Regulations 2001, Clause 5B(d)], because the requirements of the definition of “corresponding registrable person” are cumulative [see [13] above].

46 Mr Khanna is therefore not presently a “corresponding registrable person”, and he will become one only if he travels to Victoria and remains there for fourteen days, so as to incur reporting obligations there. I do not see why the hypothetical possibility that in such circumstances he would become a “corresponding registrable person”, and thus registrable in New South Wales, as a result of retroactive amendments to the Victorian legislation, particularly when there is no reason to suppose that Mr Khanna will go to Victoria so as to incur reporting obligations there, should lead this court to decline as a matter of discretion to recognise and give effect to the fact that he is not registrable in the present circumstances in New South Wales.

Conclusion

47 The Child Protection (Offenders Registration) Act 2000 serves an important function in protecting the community from the risk of children being exposed to persons who have committed sexual offences against children. However, most protections of one class of person involve incursions on the liberties of others, and this Act endeavours to balance the goal of the protection of children with the rehabilitation of offenders after they have served their sentences by recognising that some classes of sex offenders do not pose a sufficient risk to justify the imposition on them of the stigma of registration to the detriment of their effective rehabilitation. The terms of the Act and the second reading speech indicate that in balancing those considerations Parliament has determined that a single offence in the less serious category (Class 2) that attracts a sentence indicative of a judgment that supervision after sentencing is not required is not such as to warrant registration.

48 A suspended sentence unaccompanied by a bond requiring strict supervision is such a sentence. So is a suspended sentence under the Victorian Sentencing Act. The reference in s 3A(2)(b)(i) to “a term of imprisonment, including a term of imprisonment the subject of a periodic detention or home detention order”, was not intended to include a term of imprisonment which was wholly suspended, but was limited to a “custodial sentence” within Part 2, Div 2 of the Sentencing Procedure Act.

49 Accordingly, for the purposes of s 3A(2)(b)(i) of the NSW Registration Act, the sentence imposed on Mr Khanna did not include a term of imprisonment. Nor, for the purposes of s 3A(2)(b)(ii) did it include a requirement that he be under supervision. It follows that he is a person on whom a sentence has been imposed only in respect of a single class 2 offence, and neither of the two matters that might deprive him of that exemption from registrability applies. He is therefore not a registrable person. The circumstance that as a result of a recent retroactive legislative amendment in Victoria Mr Khanna might become a corresponding registrable person in New South Wales if he ever goes to Victoria is no reason to decline to recognise and give effect to his current status under New South Wales law.

50 My orders are:

1. Declare that upon the proper construction of the (NSW) Child Protection (Offenders Registration) Act 2000 and in the events which have happened, the plaintiff Ajan Khanna is not a “registrable person” for the purposes of that Act.

2. Order that the defendant Commissioner of Police for New South Wales be restrained from by himself his servants or agents making any entry in the Child Protection Register kept under s 19 of that Act in respect of the plaintiff.

3. Order that the defendant pay the plaintiff’s costs.

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