Hickman v PWJ
[2015] TASSC 55
•20 November 2015
[2015] TASSC 55
COURT: SUPREME COURT OF TASMANIA
CITATION: Hickman v PWJ [2015] TASSC 55
PARTIES: HICKMAN, Genevieve (Sergeant)
v
PWJ
FILE NO: 361/2015
DELIVERED ON: 20 November 2015
DELIVERED AT: Hobart
HEARING DATE: 20 November 2015
JUDGMENT OF: Estcourt J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Failure to make order pursuant to Community Protection (Offender Reporting) Act 2005, s 6(1).
Aust Dig Magistrates [1349]
Criminal Law – Sentence – Sentencing orders – Orders and declarations relating to sexual offenders – Sexual offenders – Registration, reporting and like matters – Extent of risk of committing a reportable offence in the future – Whether court obliged to make reporting order if low risk is present.
Aust Dig Criminal Law [3355]
Magistrates – Appeals and review – Tasmania – Motion to review – When remedy available – Error or mistake on the part of the justices – Whether error must appear from the materials before the magistrate.
Aust Dig Magistrates [1345]
Community Protection (Offender Reporting) Act2005 (Tas), s 6(1).
E v Jordan [2009] TASSC 61; Traynor v McCullough [2011] TASSC 41; PTR v Tasmania [2012] TASCCA 8, considered.
REPRESENTATION:
Counsel:
Applicant: J Rudolf
Respondent: J McCarthy
Solicitors:
Applicant: Acting Director of Public Prosecutions
Respondent: PWB Lawyers
Judgment Number: [2015] TASSC 55
Number of paragraphs: 31
Serial No 55;/2015
File No 361/2015
SERGEANT GENEVIEVE HICKMAN v PWJ
REASONS FOR JUDGMENT ESTCOURT J
20 November 2015
On 19 February the respondent was found guilty by Magistrate Hay of one count of the offence of "observation or recording in breach of privacy" contrary to s 13A(1) of the Police Offences Act 1935.
The learned magistrate ordered a pre-sentence report on the respondent and on 1 May 2015 his Honour convicted the respondent and fined him $3,500. In addition he made a supervised probation order for a period of nine months.
The offence involved the respondent placing a visual recording device in a pot plant inside the bathroom of his home which was shared by his adult stepdaughter. The magistrate found that the respondent anticipated that he would be able to view his stepdaughter taking a bath.
The offence of observation or recording in breach of privacy is a "reportable offence" within the meaning of the Community Protection (Offender Reporting) Act 2005 (the Act) and the prosecutor sought an order under s 6(1) of the Act. He reminded the magistrate that there was a test in relation to the making of such an order and offered to make further submissions if required. He was not called upon to do so.
Section 6 of the Act provides as follows:
"6 Order requiring registration of offender
(1) The court is to make an order directing that –
(a)the Registrar cause the name of a person whom the court sentences for a reportable offence to be placed on the Register; and
(b) the person comply with the reporting obligations under this Act –
unless the court is satisfied that the person does not pose a risk of committing a reportable offence in the future.
(2) The court is to make the order at the time the person is sentenced for the reportable offence.
(3) For the purposes of subsection (1), it is not necessary that the court be able to identify a risk of offending against a particular person or particular persons or a particular class of persons."
The respondent's counsel, Mr McCarthy, pointed out to the magistrate that the respondent had been assessed by the probation officer who prepared the pre-sentence report on him. The report identified the respondent as "very low risk" in terms of the likelihood of him re-offending. Mr McCarthy submitted to the magistrate that "on balance" his Honour could "make a finding" that notwithstanding the seriousness of the offence, the respondent was "a low risk of continuing to offend in the same way".
Counsel for the respondent then made the following submission to the magistrate in relation to s 6(1) of the Act:
"As to the Community Protection Offender Reporting Act, the Act applies to this case. So obviously if your Honour was to be satisfied the defendant does not pose a risk of committing a reportable offence in the future I submit that your Honour should do it on this basis: firstly, the defendant has never been the subject of a deterrent sentence by a Court before. I submit the sentence imposed in relation to the offence itself, would be a sufficient deterrent in relation to this particular defendant, and your Honour does not necessarily need to take the additional step of making an order under the Community Protection Act."
In my view, that submission invited the magistrate into error by suggesting to him that he had a discretion to exercise under the Act in respect of which the question of deterrence was a relevant consideration.
In E v Jordan [2009] TASSC 61, Crawford CJ said at [29]:
"I reject the submission of the applicant's counsel that the requirement in s6(1) is a discretionary one. If that was the case, the opening words of the subsection would be expected to be expressed as 'The Court may make an order' instead of 'The Court is to make an order'."
In Traynor v McCullough [2011] TASSC 41 at [53] Crawford CJ confirmed the view he took in E v Jordan.
Fortunately it appears that the magistrate did not proceed as invited by counsel for the respondent. Instead, his Honour said:
"I have considered whether I should or not place you upon the reporter offending register (sic). In my view there is no real evidence before me that you pose a risk in the foreseeable circumstances (sic) that you might have of a personal nature (sic), the risk of reoccurrence is low, in my view. In my view, it is not appropriate that I place you on to that register."
The applicant has moved this Court by amended notice to review on the following grounds:
"1 The learned magistrate erred in fact and/or in law in determining that it was not appropriate to make an order in relation to the respondent pursuant to section 6(1) of the Community Protection Offender Reporting Act 2005;
2 The learned magistrate erred in law in misdirecting himself as to the test to apply in determining whether to place the respondent on an order pursuant to section 6(1) of the Community Protection Offender Reporting Act 2005;
3 The learned magistrate erred in fact and/or in law in determining that there was no risk when determining not to make an order pursuant to section 6(1) of the Community Protection Offender Reporting Act2005."
The respondent's counsel before this Court, also Mr McCarthy, in his written submissions, contended that there was a reasonable evidentiary basis for the learned magistrate's decision to refrain from making an order under s 6(1) of the Act "and/or to find that there was no risk or a far-fetched or fanciful risk the Respondent would commit a reportable offence in the future".
Mr McCarthy further submitted that even if the magistrate did not apply the correct test, had he done so, the outcome of the proceedings would have been no different in that it was open to him on the evidence before him to be satisfied that there was insufficient risk to make an order under the Act.
I approach the central issue raised by the notice to review in the same way as did Crawford CJ in Traynor v McCullough (above). There his Honour said at [52]:
"Did the magistrate err by failing to find that the applicant did not pose a risk of committing a reportable offence in the future? To uphold this aspect of the motion I must be positively satisfied that no magistrate acting reasonably could have failed to so find. Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117; Hrycyszyn v Groves 27/1982. It is not enough that I would have found that, and as a consequence would not have made the order."
I am positively satisfied that no magistrate acting reasonably could have found, on the material before the magistrate in the present case, that the respondent did not pose a risk of committing a reportable offence in the future.
The magistrate had a report from a probation officer which stated that the respondent presented a "very low risk" of re-offending.
In E v Jordan (above) at [12] Crawford CJ said:
"In support of his case that no reporting order should be made he called evidence from a forensic and clinical psychologist, Dr O'Donnell, who voiced an opinion that the applicant poses a low risk of reoffending in the future. She agreed that she could not claim that he poses no risk at all, merely that the risk is low. It is doubtful that Dr O'Donnell's opinion as an expert has much weight and that provided with the same information as she had, the learned magistrate was just as capable of forming his own opinion about the matter. However, Dr O'Donnell's opinion was accepted by his Honour."
It is thus clear that the magistrate could have formed his own view about the matter. Indeed he appears to have done so when he said:
"In my view there is no real evidence before me that you pose a risk in the foreseeable circumstances (sic) that you might have of a personal nature (sic), the risk of reoccurrence is low, in my view."
What is clear however, beyond argument, is that by whatever route the magistrate arrived at his view, that view was that the risk of a reoccurrence, that is to say, the risk of the respondent committing a reportable offence in the future, was "low". That was how his Honour expressed his final view of the matter in the passage set out above.
Such a view is not sufficient to permit a magistrate to decline to make an order under s 6 of the Act. That has been made clear by the Full Court.
In PTR v Tasmania [2012] TASCCA 8, Tennent J, with whom Crawford CJ and Blow J (as he then was) agreed, said at [21]:
"Even if it were accepted that the interpretation should simply be that he is a low risk, that in my view would be sufficient to satisfy any court that he has not been able to meet the test in s6. The risk identified by Dr Evenhuis was not a far-fetched or fanciful one (see Traynor v McCullough [2011] TASSC 41 at [53]) where it was suggested such a far-fetched or fanciful risk might result in a court determining the offender posed no risk."
In Traynor v McCullough at [53] Crawford CJ said:
"In E v Jordan [2009] TASSC 61, I held that a magistrate had not erred when he said that an offender posed a low risk of committing a reportable offence in the future, but he was unable to say he did not pose a risk, and then made the order. I rejected that the power was a discretionary one and pointed out that 'is to' in s6(1) meant that it was directory. See Acts Interpretation Act 1931, s10A(1); S v Tasmania (2007) 16 Tas R 292. It obliged the magistrate in that case to make the order in the circumstances found. At par[21] I mentioned, but did not determine, the question whether the passage in s6(1) 'unless the Court is satisfied that the person does not pose a risk of committing a reportable offence in the future' meant that the Court must be satisfied that the person poses no risk whatsoever, not even a farfetched or fanciful one. I think the answer is that such a test is too stringent. It is difficult to accept that the legislature intended that a farfetched or fanciful risk would be enough. But nevertheless, it is a sufficient risk if it can be correctly described as a risk in a real sense, and not one that is farfetched and fanciful. Often the nature of the offender's offence will demand a positive answer, but that will not always be the case."
It cannot be argued in the present case that the magistrate was, or could have been, satisfied that the respondent posed no risk whatsoever of committing a reportable offence in the future, or that any risk was only a far-fetched or fanciful one.
There was no material before him on which he could have based such a view. He did not express such a view, and counsel for the respondent did not submit that such a view was open.
As I have already made clear, the report from the probation officer expressed the view that the respondent presented a "very low risk" of re-offending, the magistrate formed the view that the "risk of reoccurrence [was] low", and counsel for the respondent expressly submitted to the magistrate that "on balance" his Honour could "make a finding" that "notwithstanding the seriousness of the offence, the defendant is a low risk of continuing to offend in the same way".
It follows from all that I have said that ground 1 of the notice to review must succeed as the magistrate erred in law in failing to make an order in relation to the respondent pursuant to s 6(1) of the Act.
Ground 2 should also succeed because the magistrate erred in law in that he must have misdirected himself as to the test to apply.
Ground 3 is also made out as, although he did not expressly say so, he must have reached the view that there was no risk of the respondent committing a reportable offence in the future, as he would otherwise have been obliged to make an order pursuant to s 6(1) of the Act. That was an error of fact in that the material before him stated, and his own view of the matter was, that the risk was low. Alternatively, it was an error of law in that the existence of a low risk is not sufficient to satisfy the requirement of s 6 of the Act that a person does not pose a risk of committing a reportable offence in the future.
It also follows from what I have said that there is no room in this case for the application of the proviso contained in s 110(2)(ab) of the Justices Act 1959 because, contrary to the submission of counsel for the respondent, it cannot be said that had the magistrate applied the correct test the result would have been the same. Indeed, the contrary is true.
The motion is granted and I will hear counsel as to the appropriate order to be made.
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