DPP v Neisser - [2006] VSC 218

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9544 of 2005

IN THE MATTER OF an Appeal on a question of law pursuant to section 92 of the Magistrates Court Act 1989 (Vic)

DIRECTOR OF PUBLIC PROSECUTIONS (On behalf of Shane Michael Pola)	Appellant
V
DACIAN NEISSER	Respondent

---

JUDGE:	Hargrave J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2006
DATE OF JUDGMENT:	21 June 2006
CASE MAY BE CITED AS:	DPP v Neisser
MEDIUM NEUTRAL CITATION:	[2020] VSC 218

---

Criminal Law – Statutory Interpretation – respondent convicted of sexual offence prior to commencement of Sex Offenders Registration Act 2004 (Vic) – respondent undergoing suspended sentence for “registrable offence” at time of commencement of the Act - whether respondent an “existing controlled registrable offender” under Sex Offenders Registration Act 2004 (Vic).

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C Ryan SC	Stephen Carisbrooke
For the Respondent	Mr J Willis	Robert Halliday & Associates

HIS HONOUR:

Facts

On 11 March 2004, the respondent was convicted in the County Court of Victoria at Melbourne of three counts of sexual penetration of a child aged between 10 and 16 years of age, contrary to s. 48(1) of the Crimes Act 1958 (Vic). The respondent was sentenced to a total effective sentence of eight months’ imprisonment (“the sentence”). The sentence was wholly suspended for a period of 12 months.

On 13 January 2005, the respondent attended the Springvale Police Station, where he was served with a notice of reporting obligations (“the notice”) dated 6 January 2005. The notice stated that the respondent was a “registrable offender” within the meaning of the Sex Offenders Registration Act 2004 (Vic) (“the Act”). Further, the notice advised the respondent that he was required to report to Victoria Police within 28 days and comply with reporting obligations under the Act. The notice advised the respondent to telephone a specified toll free number to arrange a time to report, and stated that serious penalties may apply to any person who fails to comply with reporting obligations under the Act. At the time of service of the notice, a member of Victoria Police explained to the respondent his obligations in relation to the notice. The respondent then signed an acknowledgment to confirm receipt of the notice.

The respondent failed to report to Victoria Police within 28 days of receipt of the notice.

On 15 March 2005, the respondent attended the Springvale Police Station where he was interviewed in relation to the offence of failing to comply with his reporting obligations without reasonable excuse, in contravention of s. 46(1) of the Act.

In the interview, the respondent admitted receiving the notice and failing to comply with his reporting obligations. He said that his reasons for failing to do so were because he was scared of what was going to happen and because he was taking medication for psychosis which affected his judgement.

The respondent was charged on summons dated 31 March 2005 with…

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.

Keep reading for free

Create a free CaseChat account to read DPP v Neisser and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] VSC 218
Decision Date: 21 June 2006

CaseChat Overview and Summary

In the case of DPP v Neisser, the respondent was convicted of a sexual offence before the Sex Offenders Registration Act 2004 (Vic) came into effect. He was under a suspended sentence for this offence when the Act commenced. The dispute centred around whether the respondent qualified as an "existing controlled registrable offender" under the Act. The Director of Public Prosecutions (DPP) sought to have the respondent registered as a sex offender under the Act, while the respondent argued that, since he was convicted before the Act was enacted, he should not be subject to its requirements.

The primary legal issue before the court was the interpretation of the term "existing controlled registrable offender" as it appeared in the Sex Offenders Registration Act 2004 (Vic). The court needed to determine if this term encompassed individuals like the respondent who were convicted of a registrable offence before the Act's commencement but were still undergoing a suspended sentence at the time the Act came into effect. The court's task was to examine the legislative language, context, and purpose to ascertain whether such individuals fell within the scope of the Act.

The court meticulously analysed the language and purpose of the Act, concluding that the term "existing controlled registrable offender" was intended to capture individuals who were subject to control orders or sentences at the time the Act commenced. Given that the respondent was under a suspended sentence for a registrable offence at the Act's commencement, the court found that he met the criteria to be considered an "existing controlled registrable offender." Consequently, the respondent was required to be registered as a sex offender under the Act. The court's decision hinged on a precise interpretation of the statutory language and its application to the respondent's situation.

The final orders of the court mandated that the respondent be registered as a sex offender under the Sex Offenders Registration Act 2004 (Vic), reflecting the court's determination that he was an "existing controlled registrable offender." The court's ruling was grounded in a detailed analysis of the statutory language and its application to the specific facts of the case, ultimately affirming the DPP's position.

Orders