Hickman v PWJ - [2015] TASSC 55

[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…

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.

Continue reading Hickman v PWJ

Details

AGLC: Hickman v PWJ [2015] TASSC 55
Case: [2015] TASSC 55
Decision Date: 20 November 2015

CaseChat Overview and Summary

The decision in Hickman v PWJ involves a matter where the court was required to decide whether the magistrate had erred in not making an order for the respondent to be placed on the register of offenders. The case was heard in the Supreme Court of Tasmania. The central issue was whether the magistrate had the discretion to decide whether to order the respondent to be placed on the register of offenders under the Community Protection (Offender Reporting) Act 2005, and if so, whether the magistrate had exercised this discretion correctly.

The court held that the magistrate did not have the discretion to decide whether to make the order. Section 6(1) of the Act requires the court to make the order unless it is satisfied that the person does not pose a risk of committing a reportable offence in the future. The court found that the respondent's counsel had incorrectly suggested to the magistrate that he had a discretion to exercise under the Act, and that deterrence could be a relevant consideration. However, the court had previously held in E v Jordan and Traynor v McCullough that the requirement in s6(1) is mandatory, not discretionary.

The court also noted that the magistrate had correctly found that there was no real evidence before him that the respondent posed a risk of re-offending and that the risk of reoccurrence was low. However, since the court was required to make the order unless it was satisfied that the person did not pose a risk of committing a reportable offence in the future, the magistrate's finding did not absolve him of his obligation to make the order. The court found that the magistrate had erred in not making the order and remitted the matter back to the magistrate to make the order.

The court ordered that the matter be remitted to the magistrate to make the order for the respondent to be placed on the register of offenders under the Community Protection (Offender Reporting) Act 2005.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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."