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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 17
Decision Date: 30 January 2007

CaseChat Overview and Summary

The plaintiff, Adwell Holdings Pty Ltd, sought a declaration that the defendant, Bourne, was required to be registered under the NSW Child Protection (Offenders Registration) Act 2000. The defendant had been convicted and sentenced in Victoria to imprisonment wholly suspended. The dispute centred on whether the defendant qualified as a "registrable person" under the NSW Act. This hinged on whether the Victorian suspended sentence of imprisonment was considered a sentence which included a term of imprisonment under s 3A of the NSW Act, and whether it required the offender to be under supervision. The case was heard in the Federal Court of Australia.

The primary legal issues were whether the Victorian suspended sentence of imprisonment constituted a sentence that included a term of imprisonment for the purposes of s 3A of the NSW Act and whether it required the offender to be under supervision. The court had to interpret the relevant provisions of the NSW Act and apply them to the facts of the case. Additionally, the court needed to consider whether the relief should be refused on discretionary grounds, given the recent retrospective amendment to the Victorian legislation.

The court found that the Victorian suspended sentence of imprisonment did not constitute a sentence that included a term of imprisonment for the purposes of s 3A of the NSW Act. It held that the sentence did not require the offender to be under supervision, as required by s 3C. The court also noted that the relief should not be refused on discretionary grounds. Therefore, the plaintiff's application for a declaration was dismissed.

The court's final orders were that the plaintiff's application be dismissed with no orders as to costs. The court did not grant the declaration sought by the plaintiff, finding that the defendant was not required to be registered under the NSW Act.

Orders