CBF v Tasmania

[2021] TASCCA 9

[2021] TASCCA 9

COURT:        SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:                CBF v Tasmania [2021] TASCCA 9

PARTIES:  CBF
  v
  STATE OF TASMANIA

FILE NO:  2397/2020
DELIVERED ON:  12 October 2021
DELIVERED AT:  Hobart
HEARING DATE:  8 October 2021
JUDGMENT OF:  Estcourt J, Pearce J, Martin AJ

CATCHWORDS:

Criminal law – Sentence – Sentencing orders – Orders and declarations relating to serious or violent offenders or dangerous sexual offenders – Dangerous sexual offender – Registration, reporting and like matters – Maximum reporting period for child guilty of reportable offence – Factors relevant to assessment of reporting period.

Community Protection (Offender Reporting) Act2005, ss 23, 24 and 25.

Aust Dig Criminal Law [3355]

REPRESENTATION:

Counsel:
             Appellant:  J Sawyer
             Respondent:  L Mason SC, S Nicholson
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2021] TASCCA 9
Number of paragraphs:  33

Serial No 9/2021

File No 2397/2020

CBF v DIRECTOR OF PUBLIC PROSECUTIONS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

ESTCOURT J
PEARCE J
MARTIN AJ
12 October 2021

Orders of the Court:

1. Appeal allowed;
   
   

2. Order made by sentencing judge on 4 June 2015 under the Community Protection (Offender Reporting) Act 2005 varied by substituting a reporting period of 7 years and 6 months from 4 June 2015.

Serial No 9/2021

File No 2397/2020

CBF v DIRECTOR OF PUBLIC PROSECUTIONS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

ESTCOURT J
12 October 2021

Background

1. The appellant was convicted on 4 June 2015 of one count each of aggravated burglary, aggravated assault, attempted rape and attempted murder. He was sentenced to a period of detention and an order to report under the Community Protection (Offender Reporting) Act 2005 (the Act) for a period of 10 years (the reporting period).

2. This appeal against sentence relates only to the order to report, on the basis that the appellant was aged 17 at the time of the offending and was dealt with as a youth, and the reporting period was for a longer period than that authorised by the Act.

3. Section 24 of the Act provides the maximum periods for which adult offenders can be required to report. Had the appellant been an adult, he could, pursuant to s 24(3), having regard to the offences of which he was convicted, have been required to report for life. However, s 25 of the Act provides that a reduced period of reporting applies to child offenders and the maximum period of time for which the appellant could have been required to report under s 25(3) was 7 years and 6 months.

4. The respondent concedes that the learned sentencing judge, Blow CJ, erred in law by sentencing the appellant under s 24 of the Act instead of s 25. Accordingly when the appeal first came before the Court on 10 November 2020 the appeal was allowed and leave was granted to the appellant to file any additional information in relation to his psychological or psychiatric condition, together with any further submissions in writing as to the varied reporting period agitated for by him. Leave was granted to the Crown to file any answering material of its own, and to make any written submissions agitating for a particular varied reporting period.

5. Since that date such submissions have been received and the appellant has provided the Court with a copy of his records from Forensic Mental Health Services documenting his treatment during the period of his detention at Ashley Youth Detention Centre and his engagement with Forensic Mental Health Services between 2016 and 2018

6. It is submitted on behalf of the appellant that the reporting period should be varied down and that if the appellant ant was ordered to report for ten years out of the maximum period of life for an adult then a varied order should reflect a reporting period that falls far short of the maximum period allowable for a child under s 25(3).

7. Section 50A(1) of the Act provides that an offender reporting order made by the Supreme Court under the Act may be appealed against as if that order were a sentence imposed on conviction. By s 50A(3), on appeal to this Court a reporting period imposed under the Act may be affirmed, quashed, or varied.

8. It is submitted on behalf of the respondent that the reporting period ought to be varied from 10 years to the maximum period allowable for a youth who has committed the crimes of attempted murder and attempted rape, namely, 7 years and 6 months.

9. Although of some length I set out the learned sentencing judge's comments on passing sentence. They are as follows:

   "Mr CBF has pleaded guilty to four charges relating to a violent attack on a teenage girl in November 2013, namely charges of aggravated burglary, aggravated assault (that is, an assault with the intention of committing the crime of rape), attempting to commit rape, and attempting to commit murder.

   On the day in question both Mr CBF and the complainant were 17 years old.  They had attended the same school in grades 7 and 8. Mr CBF had some contact with the complainant during 2011, particularly through Facebook. They saw a movie together during 2011, but ceased contact with one another during that year. Between then and the day in question, it appears that they saw each other only once, when Mr CBF showed up at her home during June 2013. He did not stay long on that occasion.

   On the morning of 23 November 2013 Mr CBF again went to the complainant's home uninvited. He armed himself with a pair of scissors that he found at the rear of the property, and entered the house without permission.  He has pleaded guilty to the crime of aggravated burglary on the basis that he entered the house as a trespasser, intending at the time of entry to commit a crime – either rape or assault or both.  That was why he had armed himself with the scissors. 

   The complainant was alone in the house.  Mr CBF went into her bedroom, where she was taken by surprise.  Without speaking, he pulled out the scissors, jumped onto her bed, and held the scissors to her throat.  Then he spoke.  He told the complainant that she was playing with him, and that he had been trying to get her.  His words made no sense.  She was wearing pyjama trousers, with underwear underneath. He began to pull those garments down.  The complainant resisted, trying to push him away with her hands, and attempting to kick him. He said words to the effect of, 'Do it or I'll kill you.'  The complainant began screaming and told him to go away, but he would not let go of her. He let go of the scissors and began to strangle her, with both hands around her neck.  This hurt her, and she had trouble breathing.  Mr CBF said words to the effect of, 'I tried so hard to get you so many times but you rejected me.' He continued to squeeze her throat until she could not breathe properly.  Then he stopped.  She managed to take a few breaths, and began to resist.  He grabbed her around the throat again.  From time to time he let go of her throat and attempted to pull her pyjama pants down.  Eventually the complainant told him that she needed a drink of water.  He allowed her to go to the kitchen, but followed her, holding the hood of a jumper that she was wearing. 

   While she was drinking a glass of water in the kitchen with him behind her, he stabbed her without warning to the left upper chest with a kitchen knife.  Then he stabbed her a second time, to the right side, in the area of the ribs.  Then he stabbed her to the stomach area, close to her navel.  She was screaming. She tried to grab the knife from him. He said words to the effect of, 'I need help.  There is someone else inside me.  Call the police.  I need help.'  The complainant told him that she would call the police.  He stabbed her several more times, including about three times to the back and at least once to the neck.  The complainant managed to grab the knife and pull it from his hands, suffering a deep cut to her left hand as a result.  Mr CBF grabbed the knife back from her, sustaining a deep wound to one hand.  The knife broke, and he dropped it.  He then grabbed the complainant by the hair and caused her to fall to the floor.  He grabbed the glass lid of a frying pan and hit her around the head with it until it shattered. He took another knife, and tried to force it down her throat.  She suffered a cut to the tongue.  She bit down on the knife. Mr CBF let go of it, walked outside, and seized a wrench from a toolbox with the intention of beating the complainant with it. She held a kitchen chair in front of herself for protection, so he threw the wrench at her. It hit her on the arm and the side of her head, causing pain and dizziness. At this point the complainant's mother drove into the driveway of the house and Mr CBF jumped over the front fence. 

   However he did not flee.  The complainant's mother told him that she was calling the police.  He said words to the effect of, 'It's not me doing this.  It's someone else.  I've got a problem.'  He waited for the police to arrive.  They arrested him and he has been in custody ever since.

   When the police arrived, the complainant was having difficulty breathing, and was going in and out of consciousness. She was taken to hospital by ambulance.  Some of her injuries were life-threatening. Amongst other things, she had suffered a penetrating abdominal wound that involved the severing of the left inferior epigastric artery and two lacerations to the small bowel. She underwent an emergency laparotomy. The small bowel and the artery were successfully repaired.  Other surgical treatment comprised the repair of a wound to the left eyelid, the cleaning and stitching of wounds on both hands, the cleaning and stitching of back and neck wounds, and the insertion of a tube into the space around the right lung to drain blood and air.  The complainant remained in hospital for nine days.  Thereafter she needed outpatient treatment of various kinds, including physiotherapy, wound care, ophthalmology, treatment for psychological problems, and attention from general surgeons and plastic surgeons.

   The complainant continues to have psychological problems.  I will not go into detail about them.  She has a lot of scarring.  She has not been able to work since the attack because of fitness and health problems.  Her breathing has been affected.

   These crimes have placed burdens on the complainant's mother.  She initially had to clean up the blood in her kitchen, and has since had to look after an injured and disturbed daughter in various ways, including taking her to a lot of medical appointments.

   Mr CBF has no prior convictions.  He has no history at all of drug use, violence or other misbehavior. He is an intelligent young man. He was very highly regarded at his school. He excelled at school until mid-way through year 9, when he developed glandular fever. Thereafter, he displayed a variety of psychiatric symptoms, particularly anxiety. He suffered psychogenic seizures. He reported having multiple personalities, and complex hallucinatory experiences. There were times when he would lapse into apparent unconsciousness. He complained of problems with memory. He changed schools a couple of times. Home schooling was attempted. He had been seeing psychologists for over 12 months when he committed these crimes. 

   Since his arrest about 18 months ago, he has been at the Ashley Youth Detention Centre.  Over that period, his behavior has been exemplary.  He is regarded there as a model student, and a very sociable young man. He has received treatment there from a psychologist and a psychiatrist. He has been diagnosed as suffering from a major depressive disorder with anxiety, though that condition had been in remission now for over 12 months, and from a narcissistic personality disorder.  He has been taking antidepressant medication since January of last year. He will require a great deal of further psychotherapy.  He does not understand why he attacked the complainant. His prognosis is uncertain.  If he is taken from Ashley and placed in the adult prison system, he will be at risk of abuse and bullying, and might not have the same opportunities for education and rehabilitation. If he remains at Ashley, where he is older and brighter than most of the detainees, there could be difficulties in relation to grandiosity and narcissism.

   Mr CBF has expressed abhorrence at what he did. He wishes to overcome his psychiatric problems. He decided at an early stage not to apply for bail. By pleading guilty, he has avoided the need for the complainant to give evidence, and saved the State the cost and inconvenience of a trial. There appears to be little chance of him re-offending, but there was little chance of him doing what he did in the first place. Because I cannot rule out the possibility of him re-offending, I will have to make an order placing his name on the sex offenders' register. I think it prudent to order that he comply with the reporting obligations for persons on that register for 10 years.

   Plainly, the crimes that Mr CBF committed were extremely serious. If he were an adult offender without mental health problems, I would impose a very long prison sentence on him. Because of his mental health problems, this is not an appropriate case for me to impose a sentence that is designed to deter others from violent sexual attacks. Because he is young, the emphasis should be on his rehabilitation. However his crimes were so serious that a substantial sentence of imprisonment is the only appropriate penalty. Because of his age and his mental health problems, I will impose the shortest possible non-parole period. This may be a case in which the Parole Board should order a lengthy period of parole in order to facilitate the treatment of Mr CBF's psychiatric problems. I will backdate his sentence to the date of his arrest.

   Mr CBF, I convict you and sentence you to 4½ years' imprisonment with effect from 23 November 2013. You will not be eligible for parole until you have served half of this sentence. I order that the Registrar appointed under s 42 of the Community Protection (Offender Reporting) Act 2005 place your name on the register under that Act and that you comply with the reporting obligations under that Act for 10 years from today." (Emphasis added.)

10. It is submitted on behalf of the respondent that the objective features of the crimes committed by the appellant along with his personal circumstances warrant the maximum allowable reportable period under the Act given that the crimes were extremely serious and the complainant was fortunate to survive.

11. It is also submitted that at 17 years and 7 months the appellant was nearly an adult when he committed the crimes and that his behavior was "extremely violent, unpredictable and the result of ill-mental health" of such a nature that psychiatrist Dr Ian Sale was unable to comment upon what, if any, future risk it might give rise to.

12. In written submissions counsel for the respondent submits:

    "10      The object of the Community Protection (Offender Reporting) Act 2005 is to reduce the likelihood an offender will re-offend, and to facilitate the investigation of any future offences. It is not to provide a form of extra punishment for an offender: PTR v Tasmania [2012] TASCCA 8 at [22] per Tennent J; MAC v Tasmania [2018] TASCCA 19 per Martin AJ at [199] – [200]; Mulholland v Tasmania [2017] TASCCA 2 per Pearce J at [23] - [32].

    11       Given the serious nature of the crimes committed by the Appellant, the protection of the community is a paramount consideration. Because reporting requirements are designed to protect the community and are not a form of extra-curial punishment, taking into account the objective features of the crimes and the Appellant's age when he committed them, a reporting period of 7 years and 6 months is not unjust.

    12       The Respondent submits that on the material provided to the Court, there is no cogent reason for this Court to impose anything other than the maximum reporting period allowable under the Act."

13. The respondent submits that the records provided by the appellant from Forensic Mental Health Services do not conclusively address the question of risk, and that despite his treatment during the period of his detention at Ashley Youth Detention Centre, and his engagement with Forensic Mental Health Services between 2016 and 2018, he  appears to have gained limited insight into his offending behaviour and towards the end of 2018 appeared to have voluntarily disengaged by not making further appointments.

14. The respondent points out that an entry in the Forensic Mental Health Services records, dated 24 October 2018, recorded as "phone call to C to discuss future engagement with CFMHS", notes that the appellant said that "he knows he has things to work on, and that, although he was able to address some things during his work with MW, he never really felt like he achieved an understanding of how/why the index offence occurred. As such, he still feels uneasy about things; and despite recognising that he may never get to 'the bottom' of this, he would still like to work towards gaining a better understanding of his/these processes".

15. I accept the respondent's submission. The question here is one of risk, not one involving a calculation of what proportion of the maximum adult reporting period was originally imposed by the learned sentencing judge and varying it accordingly.

16. I note that Pearce J did point out in Mulholland v Tasmania [2017] TASCCA 2 at [27] that a loss or detriment suffered by an offender as a result of having committed a crime may, in some circumstances, properly be taken into account in determining sentence, this is not to my mind however, a case where extra-curial punishment arises from the requirements of the Act.

17. As the respondent submitted, on the material provided to the Court, there is no cogent reason to impose anything other than the maximum reporting period allowable under the Act.

18. As noted, the appeal has already been allowed by the Court. I would vary the reporting period down from 10 years to the maximum period allowable for a youth who has committed the crimes of attempted murder and attempted rape, namely, 7 years and 6 months from 4 June 2015.

File No CCA 2397/2020

CBF v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PEARCE J
12 October 2021

1. In 2015 the appellant pleaded guilty to aggravated burglary, aggravated assault, attempting to commit rape, and attempting to commit murder. On 4 June 2015 he was sentenced by Blow CJ to imprisonment for four and a half years from 23 November 2013. The sentencing judge ordered the appellant not be eligible for parole until having served half of the term. An order was made that that the Registrar appointed under s 42 of the Community Protection (Offender Reporting) Act 2005 (the Act) place the appellant's name on the register under that Act, and that he comply with the reporting obligations under that Act for 10 years.

2. This appeal did not challenge the term of imprisonment or the non-parole period. The appellant was released on parole on 20 July 2016. However, the reporting order his Honour made under the Act was in error for this reason. Rape is a class 3 offence because it is one of the crimes listed in Schedule 3. Attempted rape is a class 3 offence pursuant to s 15(d). An assault which is an aggravated assault because, as here, it is committed with intention to commit a rape, is a class 3 offence by operation of s 15(c). Had the appellant been an adult, s 24(3) would have required that he continue to comply with the reporting obligations imposed by the Act for the remainder of his life or such lesser period as was determined by the Court. However, when the crimes were committed by the appellant he was aged 17, and thus was a child: s 3. The reporting period provided for by s 24 did not therefore apply: s 25(1). By s 25(3) the maximum reporting period for a person who was a child when he or she committed an offence referred to in s 24(2) or (3) must not exceed 7 years 6 months. Thus, his Honour erred by ordering a reporting period which was longer than that.

1. An offender reporting order made by the Supreme Court under the Act may be appealed against in the Court of Criminal Appeal as if that order were a sentence imposed on conviction: s 50A(1). The Court may affirm, quash or vary the order: s 50A(3). For those reasons, on 10 November 2020, I joined in an order allowing the appeal. The appeal was then adjourned to allow the appellant to file additional material relevant to the length of the reporting order which this Court should make in substitution for the order made by the sentencing judge. We may form our own view about whether a reporting order should be made and, if so, for what period.

2. The appellant submitted that this Court should substitute a reporting order which is less than the 7 year and 6 month maximum, and that a reporting order was no longer necessary. The appellant also submitted that imposition of the maximum reporting period should be reserved for a case in the worst category, and that this is not such a case. On resumption of the appeal the Court varied the reporting period to the maximum period of 7 years and 6 months. These are my reasons for joining in that order.

3. One other aspect of the reporting order is relevant to the term of its operation. The sentencing judge ordered that the 10 year period commence on the date of sentence, 4 June 2015. However, having sentenced the appellant to imprisonment, s 23(1)(a) and (2) of the Act had operation. The effect was that the obligation imposed on the appellant, as a reportable offender, was suspended while he was in custody, and the period for which his reporting obligations continue was extended by that length of time. As a result, notwithstanding the terms of the sentencing judge's order, the appellant's obligations as a reportable offender did not commence until his release on 20 July 2016. If the maximum period of 7 years and 6 months had been imposed by the sentencing judge it would expire on 20 January 2023.

4. The objective circumstances of the crimes to which the appellant pleaded guilty were extremely serious. They were described by the sentencing judge in the passage set out in full in the reasons of Estcourt J. Shortly stated, on the morning of 23 November 2013 the appellant armed himself with a pair of scissors and went uninvited to the home of the complainant, a teenage girl. He entered her home intending to either rape or assault her or both. She was in her bedroom, alone in the house. He held the scissors to her throat and said that he had been "trying to get her." He tried to pull down her pyjama pants. When she resisted he threatened to kill her. He repeatedly choked her with his hands until she had trouble breathing. When she persuaded him to let her go to the kitchen he followed her and, without warning, stabbed her with a kitchen knife to the upper chest, to her right rib area and to her stomach. He said that he needed help because "someone else was inside [him]" and then stabbed her several more times, including three times to her back and at least once to her neck. When she grabbed the knife she suffered a deep wound to her left hand. He grabbed her hair, forcing her to the floor, whereupon he struck her head with the glass lid of a frying pan until it broke. He tried to force another knife down her throat cutting her tongue. While she held a kitchen chair in front of her for protection, he threatened to beat her with a wrench and then she was struck when he threw it at her. He only stopped when the complainant's mother arrived home, but still he claimed that he "had a problem" and that "someone else was doing this." He waited for the police to arrive and was arrested.          

5. The victim suffered life threatening injures and the impact of the crimes on her was profound. The sentencing judge described the injuries and the impact in these terms:

   "When the police arrived, the complainant was having difficulty breathing, and was going in and out of consciousness. She was taken to hospital by ambulance. Some of her injuries were life-threatening. Amongst other things, she had suffered a penetrating abdominal wound that involved the severing of the left inferior epigastric artery and two lacerations to the small bowel. She underwent an emergency laparotomy. The small bowel and the artery were successfully repaired. Other surgical treatment comprised the repair of a wound to the left eyelid, the cleaning and stitching of wounds on both hands, the cleaning and stitching of back and neck wounds, and the insertion of a tube into the space around the right lung to drain blood and air. The complainant remained in hospital for nine days. Thereafter she needed outpatient treatment of various kinds, including physiotherapy, wound care, ophthalmology, treatment for psychological problems, and attention from general surgeons and plastic surgeons.

   The complainant continues to have psychological problems. I will not go into detail about them. She has a lot of scarring. She has not been able to work since the attack because of fitness and health problems. Her breathing has been affected.

   These crimes have placed burdens on the complainant's mother. She initially had to clean up the blood in her kitchen, and has since had to look after an injured and disturbed daughter in various ways, including taking her to a lot of medical appointments.

6. The appellant was described by the sentencing judge as intelligent. He had no history of drug use, violence or other misbehaviour. However, at the time of the crimes the appellant was experiencing a variety of psychiatric symptoms including anxiety and psychogenic seizures. He reported having multiple personalities and complex hallucinatory experiences. Following his arrest he received treatment from a psychologist and a psychiatrist and was diagnosed with a major depressive disorder, by then in remission, and a narcissistic personality disorder. He had no understanding of why he attacked the complainant. The sentencing judge expressed his prognosis as "uncertain." Included in the material provided to the sentencing judge was a comprehensive report prepared by a highly qualified and experienced psychiatrist, Dr Ian Sale. Dr Sale's report was prepared after reviewing a considerable body of material and interviewing members of the appellant's family and his treating practitioners. Dr Sale expressed the view that the material he had considered raised the possibility that the appellant suffered from the condition Dissociative Identity Disorder, an extreme form of disassociation, which, although identified and defined in DSM-IV and DSM-V, was described by Dr Sale as uncommon and controversial. It is a condition unable to be confirmed by test or investigation. After reviewing the likelihood that the appellant may suffer from such a condition, Dr Sale suggested however that the appellant's "apparent personalities reflected different aspects of himself which he had trouble acknowledging." Dr Sale continued:

   "Prognosis is difficult to estimate, in part because this is a rare condition, and there is only limited data on which to draw upon.

   His treatment needs are likely to be complex, and would likely include careful but intensive psychotherapy with an experienced therapist whose goal would be to try to unite and integrate the different and conflicting aspects of [the appellant's] personality so as to hopefully provide for a more integrated and mature adult identity.

   For reasons that would follow from my uncertainty concerning prognosis, I am unable to comment upon what if any future risk might apply."

7. The trial judge then concluded:

   "[The appellant] has expressed abhorrence at what he did. He wishes to overcome his psychiatric problems. He decided at an early stage not to apply for bail. By pleading guilty, he has avoided the need for the complainant to give evidence, and saved the State the cost and inconvenience of a trial. There appears to be little chance of him re-offending, but there was little chance of him doing what he did in the first place. Because I cannot rule out the possibility of him re-offending, I will have to make an order placing his name on the sex offenders' register. I think it prudent to order that he comply with the reporting obligations for persons on that register for 10 years."

8. The Act, s 6(1), requires the making of an order directing that the Registrar under the Act cause the name of a person whom the court sentences for a reportable offence to be placed on the register, and that the offender comply with the reporting obligations under the Act for a specified period. The power to make the order is directory and not discretionary: Traynor v McCullough [2011] TASSC 41, 218 A Crim R 177. An order must be made unless the court is satisfied that the person does not pose a risk of committing a reportable offence in the future. The object of the Act is protection of the community. By its long title, it is an "Act to require certain offenders who commit sexual or certain other serious offences to keep police informed of their whereabouts and other personal details for a period of time (to reduce the likelihood that they will reoffend and to facilitate the investigation of any future offences that they may commit), to enable courts to make orders specifying certain offenders to be reportable offenders, and for related purposes."

9. On the material being considered by the sentencing judge, his Honour had no choice but to make an order, and the same circumstances strongly supported the making of an order for a lengthy period. The crimes committed by the appellant had an obvious sexual motivation, and the gravity of his conduct and the nature of his condition was such that protection of the public was an overwhelming consideration. For much the same reasons as advanced by his Honour at the time, I would have made the order for the maximum permissible period.

10. Because this appeal was to be considered as if the appealed order were a sentence, s 402(4A) of the Criminal Code meant that this Court may take into account any matter relevant to the sentence that has occurred in the six years or so since the order was first made. The further evidence put before this Court on behalf of the appellant consisted of an affidavit which annexed a bundle of records of the appellant's interactions with the Forensic Mental Health Service commencing in October 2016, following his release from prison, until October 2018. To my mind there was nothing in any of the records which supported a contention that the order was no longer necessary, or that the risk posed by the appellant is much, if any, less than was the case when he was first sentenced. The most recent entry is a case note from 24 October 2018 which, in summary, reports the appellant's wish to be discharged from continuing therapy because his work commitments made it difficult for him to keep appointments. The note records the author's opinion that the appellant "accepts that he has underlying psychological issues (level of insight uncertain) but is ambivalent about addressing these due to things being busy..".  The note indicates that the appellant stated that:

    "he knows he has things to work on, and that, although he was able to address some things during his work with [name of counsellor], he never really felt like he achieved an understanding of how/why the index offence occurred."

11. There was no further medical evidence relevant to assessment of risk, and no evidence of the appellant's current state. The records were sent in 2021 with a covering letter written by the Director of the Statewide Mental Health Service indicating that, although the records were sent with the appellant's authority, they were not to be released to him due to the potential adverse impact on his mental state and the possible risk to others were he to become unwell.

12. Counsel for the appellant submitted that imposition of the maximum reporting period should be reserved for the most serious cases. The proposition is derived from the principle of sentencing enunciated in the passage in the judgment of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2)  164 CLR 465 at 478 as to when the maximum penalty prescribed for an offence may be imposed. The principle has no application here. Although an order made under the Act may be appealed as if it were a sentencing order, it is not a sentencing order: S v Tasmania [2007] TASSC 62, 16 Tas R 292 per Evans J at 307 [27]. The sentencing orders that may be made by a court are detailed in the Sentencing Act 1997, s 7. Although, in some circumstances, a reporting order may have a punitive effect, it is primarily protective: Mulholland v Tasmania [2017] TASCCA 2, 25 Tas R 313. If protection of the public is required for the maximum period, as I consider it to be in this case, then the maximum period should be ordered. There was nothing to suggest that a reduction in the reporting period is justified because it has been a hardship for the appellant to comply, or that some hardship is imposed by the obligation to comply for the relatively short period for which it will remain in force.

File No 2397/2020

CBF v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

MARTIN AJ
12 October 2021

1. I agreed with the orders of the Court allowing the appeal and directing that the appellant report for 7 years and 6 months. I agree with the reasons of Pearce J.