Heath (A Pseudonym) v The Queen
[2014] VSCA 319
•11 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0149 | |
| JACK HEATH (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
---
| JUDGES: | REDLICH and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 October 2014 |
| DATE OF JUDGMENT: | 11 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 319 |
| JUDGMENT APPEALED FROM: | DPP (Vic) v [Heath] (Unreported, County Court of Victoria, Judge Montgomery, 13 June 2014) |
---
CRIMINAL LAW – Breach of conditions of orders under Serious Sex Offenders (Detention and Supervision) Act 2009 – Failure to comply with case workers’ directions not a breach of conditions – Serious Sex Offenders (Detention and Supervision) Act 2009 ss 20, 160(1), considered – Conviction quashed – Aggregate sentence for breaches fixed – Re-sentencing on remaining breaches – Criminal Procedure Act 2009 s 277 – Scope of Sentencing Act 1991 s 5(2BD) – Crown concession that time served sufficient – Aggregate sentence of five months’ imprisonment imposed.
CRIMINAL LAW – Practice and procedure – Publication of court’s reasons – Prohibition against publication – Serious Sex Offenders (Detention and Supervision) Act 2009 ss 182, 183, considered – ‘Person’ does not include ‘court’ – Handing down of reasons to public not publishing within meaning of s 182(4) – JPH v The Queen [2014] VSC 242, followed in part.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C T Carr | Victorian Aboriginal Legal Service |
| For the Crown | Mr B F Kissane SC | Mr Craig Hyland, Solicitor for Public Prosecutions |
REDLICH JA
BEACH JA:
Following pleas of guilty in the County Court, the applicant was convicted on three charges of breaching a supervision order and sentenced as follows:
| Charge | Offence | Maximum | Sentence |
| 1. | Breach of Supervision Order [Serious Sex Offenders (Detention and Supervision) Act 2009 s 160] | 2 years’ imprisonment[2] | 12 months’ imprisonment (aggregate) |
| 2. | Breach of Supervision Order [Serious Sex Offenders (Detention and Supervision) Act 2009 s 160] | 2 years’ imprisonment | 12 months’ imprisonment (aggregate) |
| 4. | Breach of Supervision Order [Serious Sex Offenders (Detention and Supervision) Act 2009 s 160] | 2 years’ imprisonment | 12 months’ imprisonment (aggregate) |
| Total Effective Sentence: | Aggregate sentence of 12 months’ imprisonment | ||
| Non-parole Period: | N/A | ||
| Declaration pursuant to s 6AAA of the Sentencing Act 1991 | 20 months’ imprisonment | ||
[2]As the County Court granted a summary hearing of the matter pursuant to s 172(5) of the Serious Sex Offenders (Detention and Supervision) Act 2009, the maximum penalty for the offences was two years’ imprisonment: Sentencing Act 1991 s 113.
The applicant sought leave to appeal against conviction on charge 4 on the following ground:
A substantial miscarriage of justice has occurred in that I was convicted of a charge that, on the admitted facts, I was in law not guilty of.
He sought leave to appeal against his sentence on the following grounds:
1. The aggregate sentence imposed is manifestly excessive.
2.The sentencing judge erred in sentencing on the basis that the offences were towards the higher end of this genre of offending.
Following the hearing of the appeal on 31 October 2014 the Court ordered that the application for leave to appeal against conviction be granted, allowed the appeal and set aside the conviction on charge 4.
Section 277 of the Criminal Procedure Act2009 provides that, where a conviction for an offence is set aside, this Court may vary sentences (including aggregate sentences) that were imposed on other offences at the same time as the sentence on the conviction set aside if the sentencing court took into account the sentence on the conviction set aside.
The Crown accepted that the applicant fell to be resentenced by this Court in respect of charges 1 and 2, the sentences imposed thereon having been an aggregate sentence which included the sentence on the conviction set aside.
It was appropriate in this case that the applicant be resentenced by this Court for his convictions on charges 1 and 2 pursuant to s 277.[3] As such, it was not necessary to consider the applicant’s application for leave to appeal against sentence. The Court ordered that, on charges 1 and 2, the applicant be resentenced to an aggregate sentence of five months’ imprisonment.
[3]See CMG v The Queen [2013] VSCA 243, [42]–[58] (Warren CJ), [133]–[138] (Redlich JA).
These are the reasons for the orders of 31 October 2014.
Background
On 20 June 1996, the applicant was sentenced to an indefinite sentence of imprisonment in the County Court of Victoria in respect of three charges of rape, two charges of false imprisonment, and charges of attempted rape, indecent assault, burglary, robbery, assault with intent to rob, reckless conduct endangering serious injury, unlawful assault, criminal damage and theft. The applicant was directed to serve a nominal sentence of 12 years’ imprisonment before undergoing reassessment in relation to the indefinite term.
On 21 November 2007, the County Court discharged the indefinite sentence and ordered that the offender be subject to a five-year reintegration program to be administered by the Adult Parole Board (‘APB’).
On 1 August 2012, the County Court made a non-custodial supervision order, to commence on 16 November 2012 for a period of 15 years, in respect of the applicant pursuant to the Serious Sex Offenders (Detention and Supervision) Act 2009. The supervision order required the applicant to reside at Corella Place residential facility, and included the following conditions:
7.3[The applicant] must whilst residing at Corella Place not leave and/or be absent from Corella Place except in the company of a person approved by Corrections Victoria unless otherwise directed by the Adult Parole Board.
7.11[The applicant] must comply with any form of electronic monitoring unless otherwise directed by the Adult Parole Board and any other form of monitoring as directed by the Adult Parole Board.
8.2Pursuant to section 20(3) of the Act, [the applicant] must comply with any direction given under an authorisation pursuant to section 20(1) of the Act.
The offending occurred on 18 April 2014. The circumstances of the offending are outlined in the summary of the prosecution opening, which was exhibited on the plea:
On Friday 18 April 2014 the offender travelled to Melbourne for the purpose of attending a scheduled visit with his cousin. The offender was accompanied on his trip to Melbourne by Specialist Case Workers Martin HAY (‘HAY’) and Andrew GRAY (‘GRAY’).
Arrangements were made for the offender to meet his cousin outside the Queen Victoria Market on Victoria and Elizabeth streets in Melbourne. It was agreed that the group would leave to return to Corella Place at midday to ensure that the offender would be back by his curfew return time.
The group left Corella Place at about 8.00 am and arrived in Melbourne at about 11.00 am. The offender’s cousin had not arrived as planned. The offender made several phone calls after which he advised HAY and GRAY that his cousin ‘would be here in 10 or 15 minutes’. The offender continued to call his cousin and was becoming increasingly angry on the telephone.
Failure to comply with lawful directions
By 12.05 pm the offender’s cousin had still not arrived and HAY issued a lawful direction to the offender to return to the car. The offender continued to contact his cousin and was overhead on the phone saying, ‘Where the fuck are ya? Can’t you hear them telling me I have to go?’. HAY gave the offender another direction. He replied something to the effect of, ‘I need to see my cuz, I’ll knock ya out’. The offender then raised his fist up above his head and gestured as if he were going to hit HAY.
HAY contacted Corella Place to advise that the offender was not complying with his instructions.
At about 12.20 pm the offender said, ‘There he is now’ and pointed to an Alpha Romeo Sedan that was pulling up. He advised that his cousin was seated in the passenger side of the vehicle. As the offender walked over to the vehicle, HAY again advised the offender that they had to leave and issued a direction to return to the car. GRAY took down the vehicle’s registration number. The offender told his cousin to park on the other side of the road and that he would meet him over there.
HAY and GRAY followed the offender across the road. HAY continued to give the offender directions to return to the vehicle. The offender said, ‘Gimme some fuckin room will ya, he’s family, he’s me cuz’. The male in the passenger seat exited the vehicle and ran over to the offender, shook his hand and gave him a hug. HAY again said to the offender, ‘I need you to get in the car, we have to leave’. The offender turned around, made a threatening gesture with his clenched fist raised and said ‘Gimme some room or I’ll fuckin smash ya!’. HAY and GRAY stepped back. HAY said, ‘It’s come to the point now, you’ve said hello to your cousin. I’m giving you a lawful instruction to return to the car so we can return to Corella Place’. The offender failed to comply.
[This constituted charge 4.]
Leaving residence unaccompanied
The male who had exited the vehicle subsequently re-entered the passenger seat. The offender ran towards the car, opened the rear passenger door and entered the back seat. The car took off so fast that the back door slammed shut. The offender could be heard yelling, ‘Go! Go! Go!’. The vehicle travelled east along Victoria Street.
GRAY and HAY entered the vehicle in which they had arrived, which was parked nearby, and commenced following the vehicle in which the offender had absconded.
HAY telephoned staff at Corella Place to advise that the offender had absconded. Staff at Corella Place contacted police and traced the offender’s location using the electronic monitoring devices that he was wearing.
Corrections Victoria has the capacity to monitor Corella Place residents using both global positioning system (GPS) monitoring (‘Chronos system’) and Radio Frequency monitoring (‘Trace system’).
Corella Place
residents are fitted with an electronic monitoring bracelet for the GPS Chronos system, known as a ‘SOLO’ electronic monitoring bracelet. The GPS function alerts monitoring staff at the Electronic Monitoring Centre (‘EMC’) if a Corella Place resident enters an exclusion zone or leaves an inclusion zone. GPS bracelets can be cut off using scissors or can be removed with 30 kilograms of pressure. The EMC receives an alert when this occurs. The GPS device is beneficial in being able to identify breaches of a curfew condition or a place/area inclusion and exclusion condition. Should a
resident abscond it identifies his whereabouts so that information can be provided to police to assist in his apprehension.
Corella Place also currently utilises a Radio Frequency system specifically for within Corella Place. A person subject to radio frequency monitoring wears an ankle bracelet which signals to a receiver located in the person’s residence. This type of monitoring enables Corrections Victoria to know whether a person is within the defined perimeter, or not. It also triggers an alarm if the person removes or otherwise tampers with their ankle bracelet. The radio frequency monitoring at Corella Place can identify the general vicinity of a person within the monitored area.
HAY and GRAY were able to catch up with the car in which the offender had absconded when it stopped at a set of lights on Elizabeth Street. Whilst the car was stopped at the lights, the offender and the person that he had identified as his cousin exited the vehicle and ran north up Elizabeth Street.
HAY and GRAY drove up Elizabeth Street but lost sight of the men behind a bus. They parked at the next intersection and exited the vehicle to search for the offender. GRAY was advised by a member of the public that the offender had entered a Chinese restaurant. One or two minutes later, the men were observed on the sidewalk. The offender sighted GRAY and ran across the street. HAY and GRAY re-entered their vehicle and followed the men as they ran east on Queensberry Street in and out of laneways and car parks. The man the offender had identified as his cousin ran in a different direction. HAY and GRAY continued following the offender along Queensberry Street until they lost sight of him at the corner of Swanston Street.
HAY had been contacted by police and was providing updates on the location of the men to an operator who was passing them on to responding police officers.
HAY and GRAY parked near the corner of Queensberry Street and Swanston Street. As there appeared to be nowhere else that the offender could have fled, HAY entered the Queensberry Hotel. As he was making enquiries of bar staff he observed the offender coming from an area directly behind the bar.
The offender came straight towards HAY. HAY backed out of the pub. The offender pointed at him and said, ‘Fuck off or I’ll stab ya!’. His right hand was closed and it appeared as though he was holding a concealed item.
The offender then ran back west along Queensberry Street and crossed the street. HAY proceeded to follow the offender on foot whilst GRAY followed in the vehicle. The offender entered laneways that led back out to Swanton Street and headed north along Swanston Street.
The offender stood in front of a tram which was heading south and attempted to coerce the tram driver to open the door as the tram was stationary. HAY caught the attention of the driver and indicated that he should not open the door. When the driver refused to open the door the offender crossed to the east side of Swanston Street.
HAY lost sight of the offender but kept searching. He was last observed running up a lane off Swanston Street and Kelvin Place.
Police arrived on the scene and were alerted to the offender’s last known location. Police conducted a search of nearby laneways and the surrounding area but failed to locate the offender.
While HAY was talking with police on Swanston Street, he glanced up a laneway at the other end of Kelvin Place and observed the offender at a distance of about 150–200 metres bending over with his hands around his ankles. Police ran towards the offender and instructed him to get on the ground. The offender complied and was arrested.
[This constituted charge 1.]
Non-compliance with electronic monitoring
As the offender was being apprehended by police HAY observed his ‘Trace’ electronic monitoring device lying on the footpath in front of a bin. The offender’s GPS monitoring device was subsequently located inside the bin. It appeared that the offender had removed the devices with his hands.
[This constituted charge 2.]
Appeal against conviction
The applicant sought leave to appeal against his conviction on charge 4. The conduct giving rise to that charge was the applicant’s repeated failure to obey the directions given by his case workers to the effect that the applicant was to return to their car. However, it was accepted on appeal that the applicant’s failure to comply with the case workers’ directions did not breach condition 8.2 of his supervision order. Section 20 of the Act, incorporated by condition 8.2, permits a court to authorise the APB to give directions to an offender. The condition did not require the applicant to follow the directions of persons other than the APB. The Crown conceded that charge 4 was defective and that the conviction on that charge should be set aside. It was for this reason that charge 4 was quashed.
During oral argument, there arose a question whether the applicant’s actions in disobeying his case workers constituted a breach of any part of the supervision order under the present statutory regime (albeit a breach that was not charged). The Crown pointed to s 160(1) of the Act, which makes it an offence to breach a condition of a supervision order. Section 16 of the Act sets out the core conditions of such an order, including in sub-s (2) that:
(g)if the court requires an offender to reside at a residential facility, obey all reasonable instructions given by a supervision officer that are necessary to ensure the good order of the residential facility or the safety and welfare of offenders or staff or visitors to the facility; …
This condition was included in the applicant’s supervision order. Counsel for the Crown contended that it was arguable that the applicant’s conduct was captured by this condition. Though it is not necessary to determine the question, we doubt the correctness of this submission given that the condition appears to relate to the regulation of conduct at the residential facility. Counsel for the Crown could not point to any other condition that would proscribe the applicant’s conduct the subject of charge 4. The absence of such a condition would appear to be a substantial lacuna in the supervision order regime requiring legislative attention.
Re-sentencing
The applicant thus fell to be resentenced on charges 1 and 2 for his breaches of the supervision order by being absent from Corella Place unaccompanied and removing his electronic monitoring devices.
In the applicant’s written case that the original aggregate sentence of 12 months’ imprisonment was manifestly excessive and that the sentencing judge erred in his assessment of the gravity of the offending, the applicant argued that:
(a)the offending was spontaneous and unplanned, occurring as a result of frustration at being told to leave before his cousin had arrived;
(b) the applicant pleaded guilty and demonstrated remorse;
(c)the applicant did not breach the order for the purpose of committing any relevant offence, but rather committed breaches of administrative conditions. Therefore, the breaches were not at the higher end of breaches of supervision orders;
(d)the applicant, having been on the supervision order for 14 months without any breach, had demonstrated a substantial record of compliance with the order, which ought to have been credited upon sentencing; and
(e)the applicant’s prior convictions for sexual offending were given too much weight, and were of limited relevance to the sentencing exercise.
On appeal, the applicant relied on four expert reports that were not before the sentencing judge, being a neuropsychological report of Dr Nathaniel Popp dated 26 April 2011, a psychological report of Professor James R P Ogloff dated 16 December 2011, a psychiatric report of Dr Danny Sullivan dated 12 June 2012 and a psychological report of Dr Dion Gee dated 3 October 2014. The applicant relied on the reports to contend that his moral culpability for the offending was reduced, requiring a moderation of specific and general deterrence. In particular, the applicant noted that the reports find that his risk of reoffending was moderate (according to the report of Professor Ogloff and Dr Gee), being about the same as that of an ordinary sex offender, or moderate to high (Dr Sullivan). Relying in particular on Dr Gee’s opinion that the applicant’s impaired mental functioning (neuropsychological dysfunction, self-regulation deficits and decision-making processes) contributed causally to the commission of his offences, the applicant argued that the principles in Verdins[4] were engaged.
[4]R v Verdins (2007) 16 VR 269 (‘Verdins’).
The Court was informed that the applicant was convicted in the Magistrates’ Court on 24 June 2014 in respect of a charge of using threatening words arising out of the present incident. As described above, he had threatened to stab the case worker Hay. The applicant argues that there were no other aggravating circumstances in respect of the offending.
The applicant further submitted that the sentence imposed was incongruent with current sentencing practice. The applicant provided the Court with a number of cases concerning sentences for breaches of supervision orders by leaving a residence or accompaniment.[5] All but two of these cases imposed a term of imprisonment of six months or less. In one case, the offender, whose breaches included the use of drugs, missing curfew and leaving Victoria, was sentenced to a total effective sentence of 12 months’ imprisonment with a non-parole period of six months.[6] In a second case, the offender, whose breaches included leaving his residence twice and consuming alcohol, was sentenced to a total effective sentence of nine months’ imprisonment.[7]
[5]DPP (Vic) v VB (Unreported, County Court of Victoria, Judge Sexton, 18 September 2013); Department of Justice (Vic) v WR [2010] VCC 882R; Secretary to the Department of Justice (Vic) v WR (Unreported, Restricted, County Court of Victoria, Judge Sexton, 2 March 2007); Secretary to the Department of Justice (Vic) v TO [2012] VCC 877R; DPP (Vic) v SCC (Unreported, Restricted, County Court of Victoria, Judge Campton, 31 July 2013); DPP (Vic) v VB (Unreported, County Court of Victoria, Judge Sexton, 18 September 2013); DPP (Vic) v DB (Unreported, County Court of Victoria, Judge Patrick, 2 August 2013); DPP (Vic) v BJ (Unreported, Restricted, County Court of Victoria, Judge Campton, 24 October 2013).
[6] Secretary to the Department of Justice (Vic) v TO [2012] VCC 877R.
[7] DPP (Vic) v BJ (Unreported, Restricted, County Court of Victoria, Judge Campton, 24 October 2013).
In oral argument, counsel for the applicant drew the Court’s attention to s 5(2BD) of the Sentencing Act 1991, which provides:
In sentencing an offender, a court—
(a)must not have regard to the fact that the offender is subject to an order made under the Serious Sex Offenders (Detention and Supervision) Act 2009 but, if relevant to the conditions of any sentence imposed by it, may have regard to the conditions (if any) imposed on that order and the terms of any current directions or instructions given by the Adult Parole Board under section 119, 120(2) or 121 of that Act;
(b)must not have regard to any possibility or likelihood of an application being made under that Act for an order in respect of the offender.
Counsel for the applicant argued that a consequence of this provision is that this Court could not take into account in our sentencing task the fact that the applicant is and will be in the future subject to a supervision order.
Section 5(2BD) was inserted into the Sentencing Act 1991 by the Serious Sex Offenders (Detention and Supervision) Act 2009. Neither the Explanatory Memorandum nor the Second Reading Speech provide any insight into the purpose of the provision. However, we agree in part with counsel for the applicant that a likely purpose of the provision is to ensure that offenders do not obtain a sentencing discount as a result of the existence or possible imposition of a supervision order. Such a discount could be the result of, for instance, an amelioration of the importance of protection of the community in fixing a sentence as a result of a supervision order. But the section has a broader reach. The existence of a supervision order cannot affect the sentences to be imposed in any way. Thus, it also precludes taking account of the order to impose a more severe penalty than would otherwise have been the case.
In accordance with the section, we did not take into account that the applicant continues to be subject to a supervision order when determining the length of the sentence to be imposed for the offending. However, to the extent that the applicant submitted that this Court should not have regard at all to the fact that the applicant is subject to a supervision order, we rejected the submission. Section 5(2BD) does not have the effect that a sentencing court dealing with an offence of the breach of a supervision order must ignore the existence of the supervision order. The supervision order was an essential fact in the offending. We were obliged to take its existence into account in determining the gravity of his offending and the seriousness of his conduct. The section does not provide otherwise.
In its submissions, the Crown conceded that the sentence imposed was a comparatively high sentence and that the offending did not constitute a ‘high end’ breach. The Crown accepted that the applicant was entitled to a discount in recognition of his plea of guilty. However, the Crown argued that the offending was nonetheless serious; the applicant absconded in a vehicle, made threats against his case workers and removed his electronic monitoring devices. The Crown submitted that the applicant’s course of conduct demonstrated an intent to make a ‘serious attempt at absconding’. The Crown contended that the sentencing considerations of protection of the community and general and specific deterrence justified a significant custodial sentence, particularly where the applicant’s criminal history disclosed that he was a ‘particularly dangerous and recidivist sexual offender’. Despite those submissions, counsel for the Crown did not advocate the imposition of further custody beyond time already served.
Persons subject to supervision orders must be aware of the significance of those orders and of the seriousness with which sentencing courts will view a breach.[8] Protection of the community, particularly where the expert reports describe the applicant as having at least a moderate risk of reoffending, assumes particular importance.
[8]See Acting Secretary to the Department of Justice v McKane [2012] VSC 549, [21] (Williams J).
In re-sentencing, we took account of the Crown’s concession that time served was sufficient and that the offending the subject of charges 1 and 2 was not at the high end of offending of this type. The comparable cases indicate that the sentence imposed by the sentencing judge was very stern. We did not take into account the conduct that was the subject of a separate conviction in the Magistrates’ Court. That said, the applicant demonstrated a serious disregard for the conditions of his supervision order. His actions provoked a manhunt of some duration. His actions in disobeying the instructions of his case workers, being the subject of the quashed conviction, were an aggravating circumstance in his offending.
We accepted as matters in mitigation that the offending was spontaneous, that the applicant pleaded guilty and demonstrated remorse, that the applicant has no prior convictions for breaches of the supervision order and that his prior convictions for sexual offences were of limited relevance to the sentencing for these offences. We accepted that the Verdins principles were engaged and that the principles of specific and general deterrence were moderated, though they remained relevant.
The applicant was re-sentenced as follows:
| Charge | Offence | Maximum | Sentence |
| 1. | Breach of Supervision Order [Serious Sex Offenders (Detention and Supervision) Act 2009 s 160] | 2 years’ imprisonment | 5 months’ imprisonment (aggregate) |
| 2. | Breach of Supervision Order [Serious Sex Offenders (Detention and Supervision) Act 2009 s 160] | 2 years’ imprisonment | 5 months’ imprisonment (aggregate) |
| Total Effective Sentence: | 5 months’ imprisonment (aggregate) | ||
| Non-parole Period: | N/A | ||
It was declared that the period of 196 days, excluding 31 October 2014, was to be reckoned as already served under the sentence.
Publication of these reasons
During oral argument there then arose a question whether the publication of these reasons is affected by the non-publication provisions of the Serious Sex Offenders (Detention and Supervision) Act. Sections 182 and 183 of that Act relevantly provide:
182 Offence to publish certain information
(1) A person must not publish or cause to be published—
(a)any evidence given in a proceeding before a court under this Act; or
(b)the content of any report or other document put before the court in the proceeding; or
(c)any information that is submitted to the court that might enable a person (other than the offender) who has attended or given evidence in the proceeding to be identified; or
(d)any information that might enable a victim of a relevant offence committed by the offender to be identified—
unless the court authorises that publication under section 183.
Penalty:600 penalty units in the case of a body corporate;
120 penalty units or imprisonment for 1 year or both in any other case.
…
(4) In this section—
…
publish means—
(a) insert in a newspaper or other periodical publication; or
(b) disseminate by broadcast, telecast or cinematograph; or
(c) otherwise disseminate to the public by any means.
183 Publication order
(1)In any proceedings before a court under this Act, the court, if satisfied that exceptional circumstances exist, may make an order authorising the publication of any material referred to in section 182(1).
(2)Nothing in section 182 prevents the court from publishing the reasons for a decision under this section.
Section 185 lists matters to which the court must have regard in making a decision under s 183.
The effect of these provisions was considered in Director of Public Prosecutions (Vic) v JPH.[9] In that case, T Forrest J had imposed a detention order pursuant to the Act. The reasons contained proscribed information. In a carefully considered judgment, T Forrest J concluded that s 182 prohibited the publication of the Court’s reasons for judgment as the reasons contained proscribed information.[10] We agree that the publication of the court’s reasons, within the meaning of ‘publish,’ by a person is prohibited unless the court finds exceptional circumstances to exist under s 183(1). However, to the extent that his Honour regarded the court as prohibited from publishing its reasons, we must respectfully disagree.
[9][2014] VSC 242 (‘JPH’).
[10]Ibid [21], [27].
It is clear that our reasons for judgment in this matter contain information that is proscribed by s 182(1). This includes the content of the expert reports and the identity of their authors, as well as arguably the entirety of the information contained in the summary of the prosecution opening exhibited on the plea. Therefore, s 182 prohibits a person from publishing the proscribed information that appears within the reasons. That does not prohibit the court from publishing its reasons to the parties. First, a court is not a person within the meaning of s 182. Second, the court does not ‘publish’, as the word is defined, in publishing reasons to the parties.
Section 38 of the Interpretation of Legislation Act 1984 says that the term ‘person’ ‘includes a body politic or corporate as well as an individual’.[11] It is well established in other statutory contexts that a court is not a ‘person’. The question whether the Telecommunications (Interception) Act 1979 (Cth) (‘TI Act’) prohibited the disclosure to a court of material obtained under a telecommunications interception warrant arose in Kizon v Palmer.[12] The Full Federal Court (Lindgren J, Jenkinson and Kiefel JJ agreeing) held that it did not:
[11]The definition in s 2C(1) of the Acts Interpretation Act 1901 (Cth) is in identical terms.
[12](1997) 72 FCR 409.
By the operation of [then] s 22(1)(a) of the Acts Interpretation Act 1901 (Cth), unless a contrary intention appears, the word ‘person’ includes ‘a body politic or corporate as well as an individual’. The word ‘person’ does not, in ordinary English usage, refer to a court. A court is not an individual. A court is not a body politic. The Australian Constitution does not make the High Court of Australia a body corporate and the Federal Court of Australia Act does not make this Court a body corporate. The Third Charter of Justice for New South Wales and the Act 4 Geo IV c 96 did not make the Supreme Court of New South Wales, which is continued in existence by s 22 of the Supreme Court Act 1970 (NSW), a body corporate. In my view, no intention appears in the TI Act that the word ‘person’ is to import a reference to a court.
…
Authority also favours the view that the word ‘person’ does not encompass a reference to a court. In Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1, Dixon CJ said, with respect to the prohibition in s 16(2) of the Income Tax and Social Services Contribution Assessment Act 1936 (Cth) against officers’ divulging or communicating certain information ‘to any person’, that courts ‘would hardly be called persons’ (at 6). This view was followed by single judges in Queensland in Stapleton v Wilson [1956] QWN 48 and Geraghty v Woodforth [1957] QWN 41, and in Victoria in Cowan v Stanhill Estates Pty Ltd [1966] VR 604.
In Miller v Miller (1978) 141 CLR 269, in the context of the prohibition in s 5(3) of the Telephonic Communications (Interception) Act 1960 (Cth) against divulging or communicating to another person, or making use of or recording, any information obtained by intercepting a conversation passing over the telephone system, Gibbs J (at 277) expressed doubt whether a court was ‘another person’ for the purpose of the section. However, Jacobs J (at 279) said that ‘[t]he divulging or communicating by the person as a witness’ would be contrary to the prohibition. It may be that his Honour had in mind a voluntary divulging or communicating as a witness, not to the court, but to others such as members of the public present at the hearing (but see the next paragraph).
In R v Padman [1979] Tas R 37, Crawford J held that the same prohibition did not prohibit divulging or communicating information to a court. His Honour expressly did not distinguish between divulging the information to a judge and jury on the one hand and to ‘any public who are present in the court’ (at 41) on the other. His Honour did not, however, refer to the passage from the judgment of Jacobs J in Miller v Miller referred to above.
In Hilton v Wells (1985) 157 CLR 57, the majority (Gibbs CJ, Wilson and Dawson JJ at 67) and the minority (Mason and Deane JJ at 87) thought that the similar prohibition in the then s 7(4) of the Telecommunications (Interception) Act against divulging or communicating ‘to another person’ did not catch the giving of the information in question in evidence to a court. The majority noted the ‘doubt’ which had been expressed by Gibbs J in Miller v Miller that a court fell within the expression ‘another person’ in the prohibition, and the adoption and application by Crawford J in R v Padman, of what their Honours referred to as Gibbs J’s ‘view’. The minority also cited the passage from the judgment of Gibbs J. However, like [Crawford] J, neither the majority nor the minority referred to the passage from the judgment of Jacobs J referred to above.
The construction favoured by the High Court in Hilton v Wells was subsequently followed by Wilcox J in Duff v McCulloch (1985) 11 FCR 237 at 241, by Davies J in Brown v Commissioner of Australian Federal Police (1988) 83 ALR 477 at 480, and by Kirby P, with whom Gleeson CJ agreed on the point, in John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 111C. In Green v The Queen (1996) 124 FLR 423 it was conceded, on the authority of Hilton v Wells, that a court was not a ‘person’ within the meaning of ss 5A and 63 of the TI Act. Importantly, a Full Court of this Court held in Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257, after referring to earlier single judge decisions to the same effect, that the similar prohibition in s 16(2) of the Income Tax Assessment Act 1936 (Cth) against divulging or communicating information ‘to any person’ ‘plainly could not apply to a court’ (at 262).
But for the possible exception of the obiter dictum of Jacobs J in Miller v Miller, the authorities to which I have referred all favour the view that at least in contexts such as the present one, a court is not a ‘person’.[13]
[13]Ibid 430–1.
In Brown v Commissioner of the Australian Federal Police,[14] Davies J relied on the above passage to reach the same conclusion. His Honour additionally found that, the Court not being a person, the TI Act did not prohibit the disclosure by the Court of the content of an intercepted communication. Similarly, it has been held that the court is not a ‘person’ for the purposes of the Land Tax Act 1958, which prohibited disclosure by officers appointed under the Act of any knowledge gained in the course of their duties.[15] The Court was not held to be a ‘person’ for the purposes of a statute that prohibited the disclosure of medical records to ‘any other person’.[16]
[14](1988) 83 ALR 477, [8].
[15]Cowan v Stanhill Estates Pty Ltd [1966] VR 604, [82]–[91] (Pape J).
[16]Fitzgerald v Munro [1998] VSC 30, [13] (Beach J).
In contexts such as the present one, the authorities to which we have referred all favour a construction that a court is not a ‘person’. But the construction that a court, not being a person, is not subject to the prohibition set out in s 182 gives rise to a difficulty created by the curious wording of s 183(2). If s 183(2) were interpreted to mean that only reasons for a decision whether to make a publication order under s 183(1) were not subject to the prohibition under s 182, ‘person’ would thus have to be construed as applying to a court under s 182. Thus in order to publish any reasons for decisions under the Act, the court would have to make an order giving itself authority to publish information that falls within s 182. That would be an absurd and unintended construction. If it were the legislative intent that a court be prohibited from publishing its reasons, save in certain circumstances, one would have expected a provision to that effect.
The subsection is not however free from ambiguity. It is able to bear a construction that avoids what would plainly be an unintended outcome, that construction being that the court may publish reasons for a decision under the Act which contain any of the information enumerated in s 182. That is the construction it should be given as it reflects the likely purpose of these provisions.
The practice of the court in delivering judgment and publishing its reasons to the parties and their legal representatives is not in any event the publishing of reasons to the public within the meaning of s 182(4). For that reason too, a court would not be constrained by s 182 from publishing its reasons.
It may not have been apparent to the parliamentary draftsperson, for the reasons we have stated, that s 183(2) was unnecessary. The subsection was probably inserted ex abundanti cautela to make plain that s 182 does not prohibit the court from publishing reasons which contain prohibited information.
For these reasons, we do not consider that s 182 applies to a court handing down reasons to the parties which contains information described in s 182. However, in our view it would be desirable for Parliament to clarify its intention in respect of the non-publication regime contained in this division of the Act, and particularly what is the intended purpose of s 183(2).
Notwithstanding that s 182 does not prevent the Court publishing these reasons, s 182 would still make it unlawful for any ‘person’ to do so. For the reasons that follow, we would make an order under s 183(1) authorising the publication of any material referred to in s 182(1) contained in these reasons.
In making that order, we have regard to the matters listed in s 185. The publication of these reasons would not endanger the safety of any person and would not identify the victims or any other affected party of the original offending. The applicant’s compliance with his supervision order is clearly relevant to this proceeding, but it has no bearing upon our decision to make a publication order. The location of the residential address of the applicant is identified in these reasons, but the existence of that facility is public knowledge and, given that the applicant’s name is anonymised in these reasons in accordance with standard practice in this Court, we do not consider that the inclusion of that information in these reasons should prevent our making a publication order. In making a publication order in JPH,[17] T Forrest J emphasised the Act’s restriction of the right to personal liberty and the public interest in knowing how a court is obliged to approach the issue of serious sex offending under the Act. These factors are particularly important in a case such as the present where a court considers the legal principles underlying the supervision order regime. It is desirable that these reasons be available to members of the legal profession and the broader community, and we perceive no countervailing reason for non-publication.
[17][2014] VSC 242, [28].
- - -
2
7
0