Cje26 v Regina
[2019] NSWCCA 139
•21 June 2019
Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: CJE26 v Regina [2019] NSWCCA 139 Hearing dates: 21 June 2019 Date of orders: 21 June 2019 Decision date: 21 June 2019 Before: Bathurst CJ at [1], [12] and [14];
Beech-Jones J at [2];
N Adams J at [13]Decision: Application dismissed.
Catchwords: CRIME – Appeal and review – Appeal from inclusion in Child Protection Register following conviction – no jurisdiction to hear appeal from inclusion in Register that followed from conviction for class 1 or class 2 offence – application dismissed Legislation Cited: Child Protection Offenders Registration Act 2000, ss 3, 3A, 3D, 10, 14A, 15, 19
Crimes Act 1900, ss 61M(2), 61O(2)
Criminal Appeal Act 1912, ss 2, 5Category: Principal judgment Parties: CJE26 (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Self-represented (Applicant)
G Newton (Respondent)
Self-represented (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2005/5943 Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Date of Decision:
- 16 June 2006
- Before:
- Coolahan DCJ
- File Number(s):
- 05/61/0122
EX TEMPORE Judgment
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BATHURST CJ: I will ask Beech-Jones J to give the first judgment.
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BEECH-JONES J: On 10 February 2019, the applicant filed a notice of application for extension of time for notice of appeal or notice of application for leave to appeal. In his accompanying grounds of appeal, the applicant, who represented himself, stated:
“I’m honestly only appealing to be removed from the CPR as it was originally only to be in place for ten years and it has now been 14 years.”
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From that statement and the balance of his material it was evident that the applicant has applied to this Court for an order effecting his removal from the Child Protection Register established under s 19 of the Child Protection Offenders Registration Act 2000 (the “Act”) and the imposition of reporting obligations. The respondent submitted that this court does not have jurisdiction to hear the application and it should be dismissed as incompetent. For the reasons that follow that contention should be upheld.
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On or about 18 May 2006, the applicant was arraigned in the District Court of New South Wales on an indictment that charged him with one count of committing an indecent assault on a child under the age of ten years contrary to former s 61M(2) of the Crimes Act 1900 and one count of committing an act of indecency on a child under the age of ten years contrary to former s 61O(2) of the Crimes Act. On 12 May 2016, the jury returned a verdict of not guilty on count 1 and guilty on count 2. On 16 June 2006, the applicant was convicted and sentenced to a term of imprisonment of 2 years with a non‑parole period of 13 months. His non‑parole period expired at midnight on the date that he was sentenced.
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Section 19(1) of the Act obliges the Commissioner of Police to establish and maintain a Child Protection Register (the “Register”) or arrange with another person or body for its establishment and maintenance on the Commissioner’s behalf. The Register is to contain personal information in respect of each “registerable person” (s 19(2)). Subject to s 3A(2) which is not presently relevant, s 3A(1) defines a registrable person to be a person whom a court has at any time sentenced in respect of a “registrable offence”. Section 3 of the Act defines a registrable offence to be an offence that is either a “class 1 offence”, a “class 2 offence” or an offence that results in the making of a “child protection registration order”. As the offence for which the applicant was convicted of involved sexual touching or a sexual act against or in respect of a child and was punishable by a term of imprisonment for twelve months or more, it was a class 2 offence.
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For the sake of completeness I note that an offence that results in the making of a child protection registration order is a reference to an order made under various provisions of Part 2A of the Act. In broad terms, such orders can be made against persons who have not been found guilty of a class 1 or class 2 offence but nevertheless have been found guilty of an offence in this jurisdiction or elsewhere and otherwise pose a risk of safety to children.
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Part 3 of the Act provides for a scheme of reporting obligations in respect of registered persons. Of present relevance is Division 3, which imposes “ongoing reporting obligations” on registrable persons including an obligation to report certain personal information to the Commissioner of Police each year (s 10(1)). Section 14A(1a) provides that, for a person who has only ever been found guilty of a single class 2 offence, such as the applicant, the period for which they must continue to comply with their reporting obligations is eight years. This period commences on whichever is the later of the date a registrable person is sentenced for the subject offence or the date they ceased being in “government custody” in relation to the subject offence (s 14). However, by a combination of s 15(1a) and s 15(2) of the Act, those reporting obligations are suspended for any period of time during which the registrable person is in government custody and the period of time in which they must report is extended accordingly.
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I have already referred to the relevant part of the applicant’s grounds of appeal. In that document, the applicant stated that he wished to be removed from the Register “as I now wish to build myself some sort of life and future.” He complains in his submissions that it has now been 14 years since the offence and the reporting obligations were only supposed to be in place for 10 years. The respondent’s submissions contend that the applicant’s reporting period has been extended because the applicant has served a number of periods in custody since his sentencing in June 2006. In light of my conclusions about this Court’s jurisdiction it is unnecessary to consider this further.
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Generally this Court’s jurisdiction is defined by the Criminal Appeal Act 1912. For the purposes of this application, the relevant provision is s 5 which enables the Court to determine appeals in respect of convictions and, with leave, sentences. It follows from the above that the process of inclusion of the applicant on the Register and the imposition of reporting obligations on him were not matters that answer the description of being either a conviction or a sentence. Those processes follow by operation of law, specifically the Act, from the applicant’s conviction for an offence following a jury’s verdict. Save for the instance considered next, they cannot be the subject of an appeal to this Court separate to any appeal from a conviction or sentence. These matters were explained to the applicant at the hearing of the appeal. He stated that he now wished to challenge his conviction. It was explained to him that this matter would be dismissed on the basis that the Court lacked jurisdiction but it would still be open to him, if he was otherwise entitled, to seek an extension of time in which to appeal his conviction.
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Otherwise, I note that the definition of “sentence” in s 2 of the Criminal Appeal Act is extended to include an order made by a trial court under s 3D of the Act following a person’s conviction for an offence. Section 3D is found within Part 2A, which has already been described. It confers a separate power on a court in respect of a person who is found guilty of an offence that is not a class 1 or class 2 offence to order that they comply with the reporting obligations of the Act. As noted, the applicant was found guilty of a class 2 offence and his inclusion on the Register followed automatically from his conviction and sentence in respect of that offence (s 3A). It does not follow from any order made under s 3D and no such order was made in the applicant’s case.
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Accordingly, the order I propose is that this application be dismissed as incompetent.
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BATHURST CJ: I agree.
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N ADAMS J: I agree.
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BATHURST CJ: The order of the court is that proposed by Beech-Jones J. That means if you wish to you can seek an extension of time to appeal your conviction. Nothing in this judgment will affect any rights you may have to do that.
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Amendments
09 July 2019 - Removal of applicant's name mentioned in [14].
Decision last updated: 09 July 2019
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