Ebh v Commissioner of Police

[2017] WADC 106

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   EBH -v- COMMISSIONER OF POLICE [2017] WADC 106

CORAM:   STAUDE DCJ

HEARD:   11 AUGUST 2017

DELIVERED          :   18 AUGUST 2017

FILE NO/S:   CIVO 105 of 2017

MATTER                :IN THE MATTER of s 96 Community Protection (Offender Reporting) Act 2004

IN THE MATTER of reg 24 Community Protection (Offender Reporting) Regulations 2004

BETWEEN:   EBH

Applicant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords:

Community Protection (Offender Reporting) Act 2004 - Recognised order - Variation to permit access to internet for email and limited other use - Turns on its own facts

Legislation:

Community Protection (Offender Reporting) Act 2004
Community Protection (Offender Reporting) Regulations 2004

Result:

Application to vary recognised order granted

Representation:

Counsel:

Applicant:     In person

Respondent:     Mr W Fitt

Solicitors:

Applicant:     Not applicable

Respondent:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Commissioner of Police v TAK (No 2) [2011] WADC 219

STAUDE DCJ: 

Introduction

1. By this originating summons the applicant applies to vary the terms of a sexual offences prevention order (SOPO) made under the Sexual Offences Act 2003 (UK). That order is recognised in this State pursuant to the order of Petrusa DCJ made 12 June 2017 upon the application of the Commissioner of Police pursuant to s 108 of the Community Protection (Offender Reporting) Act 2004 (CP Act).

2. The SOPO was made by the Crown Court at Bristol in GLOST20050288 on 26 March 2006 following the applicant's conviction on 25 November 2005 of 16 counts of making indecent photographs of a child and one count of possession of indecent photographs of a child.  The order was in the following terms:

   The respondent is prohibited from:

   1.Being in the company of children under the age of 16 years unless the child's parent or legal guardian is present with them.

   2.Using internet or similar technology for any purpose other than work or business.

   3.Engaging in any type of employment or activity with a child under the age of 16 years either in a professional or voluntary basis.

3. The application is to vary the recognised order by allowing internet access for certain purposes.

Application

1. The applicant now lives alone in Perth.  His circumstances are set out in a statement annexed to an affidavit dated 7 July 2017.  As the statement was not verified by the affidavit, at the hearing of this matter on 11 August 2017 I invited the applicant to give sworn evidence verifying his statement.  Counsel for the respondent was given the opportunity to cross-examine the applicant.

2. The applicant states that before he returned to Australia in April 2010 he applied to the Crown Court in Gloucester for a variation of the SOPO to enable him to have internet access in order to arrange his return to Perth.  This was granted.  He states that he has not been able to obtain any documentation of the decision, but says that it was reported in the local press on 11 March 2010 that the court allowed him to have access to the internet on public computers.  The applicant was not challenged in this respect.

3. The applicant states that since returning to Perth he has been involved as a volunteer in various motorsport activities.  He rose to a senior position as a circuit racing and rallying official, but retired from those roles in April 2017.  He also has an interest in photography from which he has been able to earn a small income.  He now wants to expand his photography hobby and wishes to learn photographic skills from sources such as online tutors and tutorials.  He would prefer to learn in this way rather than by joining a photographic club.  He states that there is a variety of self-help articles about post-processing techniques and editing.  He cannot obtain such information without internet access.

4. He also states that it is extremely restrictive not to be able to have access to the internet, particularly for the purposes of financial transactions and banking.  He says it is not practical to use library computers due to limited opening hours and uncertainty of availability.  Private internet access is sought to the following websites on the basis that they are integral to his day-to-day life and learning: ANZ Bank, Westpac Bank, Vodafone, Google, iiNet, Google maps, YouTube, WA Sporting Car Club, NAV com, Facebook, Perth Weather, Bowser Watch, Fuel Serve, Photzy and Coles on One (photography learning), Coles Supermarket, Gumtree, eBay, Centrelink, MyGov, Department of Transport, Synergy, RAC, Auto One, Repco and other car parts retailers and television stations and newspapers.

5. The applicant also wishes to be able to use email.

6. The applicant, who is now aged 70, having been born on 16 October 1946, is retired and lives alone.  The only internet-related offending of which the applicant has been convicted occurred 12 years ago.

Respondent's position

1. The respondent, whilst formally opposing the application, presses no specific submissions as to the degree of risk of reoffending if the recognised order was relaxed, but points to the applicant's criminal record as indicating a tendency to commit sexual offences.  In this regard, I am informed by the affidavit of Frank Riolo sworn 1 June 2017 in support of the application for recognition of the SOPO. 

2. Annexure FR2 is a summary of evidence by the Gloucestershire Constabulary. The offences in respect of which the SOPO was made were detected in the course of a police investigation which discovered customer transaction records in possession of a company which processed financial transactions on the internet and in doing so facilitated the transmission of child abuse images.

3. In the course of the investigation a search warrant was issued and executed at the home address of the applicant.  Electronic equipment was seized and later examined.  The applicant was subsequently interviewed on two occasions in relation to images and videos that were found on his devices.  He admitted downloading child pornography by a subscription service. He was under the impression that he would only commit an offence if he distributed the material.

4. Most of the 10,022 images found on the applicant's storage devices were in the lowest category of child exploitation material, 9,790 images being in category 1 of the UK Sentencing Advisory Panel scale, being 'nudity or erotic posing with no sexual activity'.  There were 149 images in category 2, being 'sexual activity between children, or solo masturbation by a child', 40 images in category 3, being 'non-penetrative sexual activity between adult and child' and 41 images in category 4, being penetrative sexual activity between child and adult'.  There were also three movie clips, two of which were category 1 and the other category 4.

5. The applicant said in his interview that he preferred grade 1 images.  He explained the possession of the more offensive images as being due to 'pop ups'.  The applicant said he viewed the images out of boredom, not sexual gratification, and that he viewed them for their aesthetic quality as opposed to the sexual content.

6. The applicant's record shows that he was convicted of indecent assault on 9 February 1993. A community service order was made.  For the 2005 offences relating to the making and possession of indecent photographs, the applicant was sentenced to a term of imprisonment for 10 months to be released on licence for a period of 3 years.  On 3 January 2007 he was convicted of a breach of the SOPO.  The breach offence was detected after he had given two teenage girls, who were known to him, a lift in his car.  He admitted having previously driven one of the children in his car when she needed a lift, and taking her to his workplace after hours to let her use the internet.  For the breach of SOPO a term of 9 months' imprisonment was imposed.

7. The applicant came to Western Australia in 2010.  In the Albany Magistrates Court on 29 June 2012 the applicant was convicted of three counts of aggravated indecent assault for which he received a combination of a suspended imprisonment order for 6 months and 1 day and an intensive supervision order.  Those offences were committed on 8 September 2011 when the applicant, working as a professional photographer, made an arrangement to photograph the 18-year-old female victim.  On one occasion he kissed her without consent, on the second he touched her breasts, and on the third he touched the victim's vaginal area over her jeans.

8. The respondent has proposed a minute of proposed orders in the event that the court allows the application.  The minute suggests an order whereby the recognised order is varied such that the applicant is prohibited from using the internet for any purpose other than work or business, email communication with specified persons, and accessing a limited number of websites, specifically ANZ, Westpac, Synergy, Department of Transport, Department of Human Services, MyGov and Satellite navigation.

Legislation

1. A person becomes a reportable offender by reason of being convicted of a reportable offence.  This occurs when a person is convicted of a class 1 offence listed in sch 1, or a class 2 offence which is an offence listed in sch 2 of the CP Act.  A reportable offence is also an offence that results in the making of an offender reporting order or a past offender reporting order by the court pursuant to s 13.  It may be observed that most reportable offenders become such by operation of law upon conviction of a class 1 or class 2 offence.

2. A reportable offender has the obligations prescribed in pt 3 of the CP Act.  Section 26 provides that an initial report by a reportable offender must provide personal details, including any email address that the offender has or regularly uses and the name of any internet service provider whose internet carriage service the offender is supplied with or regularly uses, any name by which the offender is known or is used when using the internet, and any internet website or communication service provided by means of the internet in connection with which the offender uses such a name or email address.

3. It may be observed that the obligations upon a reportable offender are onerous.  The penalties for breaching an obligation are heavy.

4. Section 87 of the CP Act provides that the Commissioner of Police may apply to a court for a child protection prohibition order prohibiting a reportable offender from engaging in specified conduct.  Such orders may be made with respect to a person who becomes a reportable offender by operation of s 6.

5. The Community Protection (Offender Reporting) Regulations 2004 (the regulations) provide that a recognised order operates as if it were a child protection prohibition order made under pt 5 of the CP Act.  Regulation 24(2) provides that a reference in pt 5 of the CP Act to varying a child protection prohibition order is to be read as a reference to making an order varying the operation in Western Australia of the recognised order.

6. In this court there have been very few decisions made with respect to pt 5 of the CP Act.  Section 90(1) provides that the court may make a prohibition order only if the court is satisfied that the person is a reportable offender and that the person poses a risk to the lives or sexual safety of one or more children or children generally, and that the making of the order will reduce that risk. The court is not required to identify a particular child or children, or a particular class of children.

7. Section 90(3) sets out the matters which the court must take when determining whether to make an order.  I consider that the provisions of s 90 are a relevant consideration in determining application for variation of a recognised order.

8. In Commissioner of Police v TAK (No 2) [2011] WADC 219 [17], Martino CJDC held that a risk to the lives or sexual safety of one or more children is a reference to a risk that is more than merely fanciful, minimal or merely theoretical, and that a risk to the lives or sexual safety of one or more children is a risk of a child being the victim of a serious physical assault that may threaten the child's life or risk of a child being the victim of a sexual offence.

Conclusion

1. Whilst there may be cases in which different considerations apply, in this case, taking into account that the only offences against children are those relating to the making and possession of indecent photographs committed in 2005, I consider that the prohibition of private internet access is such a heavy curtailment of the applicant's liberty that the dominant effect is punitive, rather than protective.  Given that the applicant is under the supervision of the Sexual Offenders Management Squad as a reportable offender, I consider there are sufficient protective measures in place to satisfactorily reduce the risk of re‑offending, without denying the applicant reasonable access to the internet.

2. I do not consider that the applicant's internet access should be restricted to work or business.  I do not consider that his email communications should be restricted.  I consider that there would be no unreasonable risk for the purposes of s 90 if the applicant were permitted to access the sites that he has nominated.

3. Moreover, I consider that should further internet access be required, the Commissioner of Police should be empowered to grant such access, with the applicant having liberty to apply to the court, if necessary.

4. Accordingly, there will be orders as follows:

   1.The applicant is granted leave to make the application.

   2.Order 2 of the sexual offenders protection order recognised in Western Australia pursuant to the order of this court on 12 June 2017 in CIVO 85 of 2017 is varied to read as follows:

   The applicant is not permitted to use an internet carriage service, except for the purposes of email correspondence, and to access the following websites, and such other websites as the Commissioner of Police may in writing permit:

   ANZ Bank, Westpac Bank, Vodafone, Google (including Google maps), iiNet, YouTube, WA Sporting Car Club, NAV com, Facebook, Perth Weather, Bowser Watch, Fuel Serve, Photzy, Coles on One, Coles Supermarket, Gumtree, eBay, Centrelink, MyGov, Department of Transport, Synergy, RAC, Auto One, Repco and other car parts retailers, television broadcasters and their related streaming sites, and newspapers.

   3.There be liberty to apply generally.