Hinchley v The King

[2023] NSWDC 18

District Court

New South Wales

Medium Neutral Citation:

Hinchley v R [2023] NSWDC 18

Hearing dates:

31 January 2023

Date of orders:

08 February 2023

Decision date:

08 February 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1)   Appeal against conviction dismissed.

(2)   I confirm the orders imposed by the Magistrate.

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction - failure to comply with annual reporting obligation

Legislation Cited:

Child Protection (Offenders Registration) Act 2000

Child Protection (Offenders Registration) Regulation 2015 (NSW)

Crimes (Appeal and Review) Act 2001

Interpretation Act 1987

Cases Cited:

AGv Director of Public Prosecutions [2015] NSWCA 218

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenuew (Northern Territory) (2009) 239 CLR 27

Certain Lloyd’s Underwriters v Cross (2012) 87 ALJR 131

Ex parteClubb v Westpac Banking Corporation (1990) 93 ALR 123

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503

Fox v Percy (2003) 214 CLR 118

GianoutsasvGlykis [2006] NSWCCA 137

Lumney v Director of Public Prosecutions [2021] NSWCA 186

McNab v Director of Public Prosecutions [2021] NSWCA 298

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Re Bolton; Ex Parte Beane (1987) 162 CLR 514

Taylor v Owners of Strata Plan 11564 (2014) 253 CLR 531

Unions NSW v New South Wales (2019) 264 CLR 595

Texts Cited:

Herzfeld and Prince, Interpretation, 2nd edition, Thomson Reuters, 2020, Sydney.

Category:

Principal judgment

Parties:

Marcus Hinchley v Rex

Representation:

Counsel:
J Martin (Appellant)

Solicitors:
K Legal Services (Appellant)
Office of the Director of Public Prosecutions (Rex)

File Number(s):

2021/161157

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Downing Centre

Jurisdiction:

Local Court

Date of Decision:

24 May 2022

Before:

Magistrate Crofts

JUDGMENT

Introduction

1. On 28 July 2022, Marcus Hinchley (the appellant) was found guilty of an offence of failing to comply with reporting obligations contrary to s 17(1) Child Protection (Offenders Registration) Act 2000 (the Act) by her Honour Magistrate Crofts in the Local Court. Specifically, the prosecution alleged that between 1 May 2021 and 31 May 2021 that the appellant failed to comply with the annual reporting obligation imposed by s 10 of the Act. The appellant brings an appeal as of right against the conviction.

Facts and Background

2. On 5 April 2018, the appellant was convicted of and sentenced for a number of registerable offences and thereafter became a registerable person within the meaning of s 3A of the Act. He was sentenced to a term of imprisonment and was released from custody on 4 May 2019.

3. On 9 May 2019 the appellant attended Balmain Police Station to make an initial report of his relevant personal information defined in s 9 of the Act.

4. Section 10(1) of the Act required the appellant to attend a police station in person to report his relevant personal information “each year” (annual report). The appellant was obliged to make his annual report by the end of the calendar month in which the anniversary of the date on which the person first reported in accordance with the Act: s 10(2) of the Act. It was common ground that the relevant date was 31 May of each year. Senior Constable Luke Johnson gave unchallenged evidence in the Local Court that the appellant attended the police station and completed an annual report on 5 May 2020.

5. On 30 September 2020, 27 November 2020 and 29 December 2020, the appellant attended Balmain Police Station to report changes to his relevant personal information in accordance with the obligation to do so imposed by s 11 of the Act. On 30 September 2020, the offender reported his internet service providers and that he was using the messaging application “WhatsApp”. On 27 November 2020 he reported that he was using a particular email address. On 29 December 2020 the appellant reported using additional mobile telephone numbers, that he was employed, working from home and using a particular internet service provider for his work.

6. It was common ground that between 1 May 2021 and 31 May 2021, the appellant did not attend Balmain Police Station to complete an annual report.

7. At around 7:50am on Friday 4 June 2021, police arrested the appellant at his residential address. He told police at the time of his arrest the following: “I have been in Court. I’ve had so much stress. It just slipped my mind.” The appellant’s mother was present at his arrest and the appellant explained to her that he was required to report annually in May and stating, “It was on the form”. This evidence was not challenged in the Local Court.

8. The appellant’s primary argument was that, on the proper construction of s 10 of the Act, by attending the police station and reporting his relevant personal information to the police on 30 September 2020, 27 November 2020 and 29 December 2020 he had made an annual report because he had reported within 12 months of his last annual report (5 May 2020) and before the last day specified for the report to be made, 31 May 2021. The appellant’s secondary argument was that he had a reasonable excuse for not complying with the annual reporting obligation.

9. The prosecution contended that on proper construction of s 10 of the Act the appellant was required to attend the police station to make an annual report within the calendar month of the date on which he first reported.

Relevant Law

10. The applicable principles to be applied in determination of the appeal are as follows.

Nature of the appeal pursuant to s 18 Crimes (Appeal and Review) Act 2001

11. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].

12. The Court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

13. An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).

14. The term “error” has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of “error” in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).

15. The requirement that the appellant demonstrate error does not reverse the onus of proof in that the prosecution, at all material times, bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA).

16. An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to the appellant’s guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).

Relevant Principles of Statutory Construction

17. Statutory construction begins with a consideration of the language used. Its meaning may require consideration in context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenuew (Northern Territory) (2009) 239 CLR 27 at [47].

18. Determination of the purpose of a statute or of a particular provision may be based not only on an express statement of purpose in the statute itself, but also by inference from its text and structure and where appropriate, by reference to extrinsic materials. However, this process does not involve a search for what the legislature had in mind: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] and Certain Lloyd’s Underwriters v Cross (2012) 87 ALJR 131 at [23]-[26].

19. Where a statute contains an express statement of its objects, that express statement will almost always be relevant to identifying the objects and purposes of a particular provision: Unions NSW v New South Wales (2019) 264 CLR 595 at [172] (Edelman J).

20. The question of whether a court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills gaps disclosed in legislation or makes an insertion which is too big or too much at variance with the language used by the legislature. Lord Diplock’s three conditions [in Wentworth Securities Ltd v Jones] should be considered before reading a provision as if it contained additional words and the additional words must be consistent with the wording of the provision: Taylor v Owners of Strata Plan 11564 (2014) 253 CLR 531 at [38]-[39].

21. Section 33 Interpretation Act 1987 provides that the interpretation of a provision that would promote the purpose or object underlying the Act shall be preferred to a construction that would not do so.

22. Section 34(1) of the Interpretation Act 1987 provides:

(1)   In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material--

(a)   to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b)   to determine the meaning of the provision--

(i)   if the provision is ambiguous or obscure, or

(ii)   if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

23. Extrinsic materials can be used as an aid to construction, but they are not a substitute for the language considered in context and cannot displace the meaning of the text: Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at 518, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39] and section 34 Interpretation Act 1987.

Relevant provisions and structure of the Act

24. The Act imposes obligations on registerable persons to report relevant personal information to the Commissioner of Police.

25. Relevant personal information is set out in s 9 of the Act and clause 16 Child Protection (Offender Registration) Regulations 2015 (the Regulations).

26. A registerable person is a person that has at any time been sentenced for a registerable offence: s 3A of the Act. Registerable offences are listed in section 3 of the Act.

27. The objects of the Act are set out in s 2A of the Act as follows:

(a)   to protect children from serious harm (including physical and psychological harm caused by physical or sexual assault), and

(b)   to ensure the early detection of offences by recidivist child sex offenders, and

(c)   to monitor persons who are registrable persons, and

(d)   to ensure that registrable persons comply with this Act.

28. The Act imposes three reporting obligations on registerable persons.

29. Section 9A imposes an obligation upon registrable persons to make an initial report to the Commissioner of Police within seven days of being sentenced or ceasing to be in custody. If the registrable person has entered NSW from a foreign jurisdiction and has not previously been required to report under the Act, s 9A requires that the person make an initial report within seven days of entering and remaining in NSW for 14 or more consecutive days.

30. Section 10 imposes an annual reporting obligation. Section 10 of the Act relevantly provides:

10 REGISTRABLE PERSON MUST REPORT ANNUALLY

(1)   A registrable person must report the person's relevant personal information to the Commissioner of Police each year.

(2)   The registrable person must make the report by the end of the calendar month in which the anniversary of the date on which the person first reported in accordance with this Act or a corresponding Act falls.

31. Section 11 imposes an obligation to report any change in a registerable person’s relevant personal information. Any change of information in relation to children living in the same household as the registerable person must be reported within 24 hours of the change: s 11(1)(a). Any other change must be reported within 7 days of its occurrence: s 11(1)(b). If the person is not in New South Wales (NSW) when the change occurs, the person must report within seven days of having entered and remained in NSW for 14 or more consecutive days: s 11(3).

32. Initial reports, annual reports and reports regarding change of residential address and acquisition of, removal of, or change to, a tattoo or distinguishing mark, must be made in person: s 12A(1). Reports can be made at any police station in the locality in which the registerable person resides, unless the Commissioner has approved another place: s 12(1). Other reports may be made by telephone to the Crime Manager in the person’s police area command or police district: s 12A of the Act; cl 18(1) of the Regulations.

Analysis of the Magistrate’s Reasons

33. At the close of the prosecution case in the Local Court, the appellant made a no case to answer submission, primarily based on the statutory interpretation argument. In her first judgment, the Magistrate rejected that application for reasons which I will return to. The appellant did not call any evidence in the defence case and the matter proceeded to final submissions. In her second judgment, the Magistrate was satisfied that the prosecution had proved the elements of the offence beyond reasonable doubt, based on the factual findings she made in the first judgment.

34. Having conducted an independent review of the legal argument and the evidence, I am not satisfied that the Magistrate made any error of consequence. To the contrary, the Magistrate’s decision on the proper construction of the statute was principled and her application of the largely unchallenged facts to the law was straight forward. I am not satisfied that the Magistrate’s decision was wrong. To the contrary, I am satisfied that it was correct and there are some additional reasons why that is so, which I will return to.

The first judgment

35. The Magistrate commenced her first judgment by setting out the evidence and making findings of fact that were largely unchallenged on the appeal.

36. The Magistrate correctly set out the appellant’s primary submission.

37. The Magistrate accepted the appellant’s argument that as a matter of context that there was nothing in the Act to preclude a s 11 report “also counting as an annual report”. The Magistrate referred to this as a “side issue” because it was true irrespective of which statutory interpretation she adopted. I do not agree with the first of those conclusions and it follows that I do not accept the second. A s 11 report does not have to be made in person and a registrable person only needs to report the matters that have changed, and thus can be made in a way that would preclude it from satisfying the requirements an annual report. On the facts, the appellant did make his s 11 reports in a way that satisfied the requirements of an annual report, but he was not required to do so. The application of the facts of this particular case do not assist in deciding the correct statutory interpretation because the provision must be capable of being applied to a myriad of factual scenarios. I am satisfied that the Magistrate did not rely on this finding in coming to her final decision and it can be put to one side.

38. The Magistrate correctly set out the prosecution’s statutory interpretation argument.

39. The Magistrate decided that there was some ambiguity in the meaning of s 10 of the Act. This was a reasonable conclusion based on the argument that was put to her.

40. The Magistrate set out the relevant passage of the second reading speech of the Honourable John Watkins MP of 23 June 2004 on the introduction of the amendments to introduce s 10 of the Act, which stated at [5]:

The Bill requires offenders to report to police each year in the same month as their first report, irrespective of whether their personal information has changed or not. All Australian police forces have agreed that the introduction of an annual registration requirement is an essential safeguard to the integrity of the system.

41. The Magistrate after expressing caution not to substitute the Minister’s words for the language of s 10 of the Act correctly concluded that this passage supported the prosecution’s argument.

42. The Magistrate then considered the objects of the Act set out in s 2A of the Act.

43. The Magistrate noted that the prosecution’s interpretation required a registrable person to make an annual report within the same month each year meaning that there could only ever be a maximum of 13 months between the making of annual reports. By contrast, the Magistrate stated that the appellant’s interpretation meant that there could be almost two years between the making of an annual report. The Magistrate concluded that the prosecution’s interpretation better achieved the objects of the Act by requiring more regular monitoring of a registrable person’s compliance with the Act.

44. The Magistrate correctly rejected the appellant’s submission that the prosecution’s interpretation could lead to unfair or absurd results, based on the appellant’s unrealistic hypothetical example.

45. Having decided the statutory interpretation point in favour of the prosecution, the Magistrate correctly decided that there was evidence in the prosecution case, considered at its highest, that appellant had failed to comply with his annual reporting obligation and accordingly that there was a case to answer.

Further reasons to support the Magistrate’s analysis of the statutory interpretation of s 10 of the Act

46. It is convenient at this juncture to set out the additional reasons as to why the Magistrate’s acceptance of the prosecution’s argument was correct, before proceeding further.

47. In my view, the language of s 10 of the Act can be read in a way that avoids ambiguity.

48. For legal purposes a “year” means 365 days (or 366 days in a leap year): Perry Herzfeld and Thomas Prince, Interpretation, 2^nd edition, Thomson Reuters, 2020, Sydney, [4.180], p 74; citing inter alia, Re Clubb; Ex parte Clubb v Westpac Banking Corporation (1990) 93 ALR 123 at 127-130.

49. On that meaning, s 10(1) of the Act requires a registerable person to report each 365 days, which creates a fixed date for the annual report being 365 days after the last annual report.

50. Section 10(2) of the Act operates to provide leeway in the timeframe for reporting, by extending the time for reporting to the end of the calendar month in which the registrable person first reported, so that a registerable person is not required to remember the precise date on which they first reported in order to comply.

46. The logical application of the appellant’s argument is that he could have made an annual report on any day after 5 May 2020 and before 31 May 2021. For example, he could have complied with his obligation to make an annual report by presenting to police and completing a Form 4 on 6 May 2020, or even early June 2020 and thereafter he would not have been required to report again until 31 May 2022 at the latest, assuming that there were no changes in his relevant personal information. This construction would allow almost two years between the dates on which a registrable person must report, assuming that there were no changes in their relevant personal information. This construction is inconsistent with the language of s 10(1) of the Act that requires a registerable person to report “each year” or each 365 days, because on the example considered, the registerable person would not be required to report in a 365-day period or even in the calendar year of 2021.

47. This construction is not perfect. It leads to a result that the time for making an annual report falls between the date that a person first reported and the end of that calendar month. So that for example, a person who first reported on 30 May only has their reporting period extended to 31 May. This anomaly does not cause any problems in this case and I do not need to consider the point further. I note that the police have taken a pragmatic approach by recording in their computerised system that the appellant was required to make his annual report within the calendar month of May. The prosecution’s interpretation in this case properly requires the section to be amended to make it clear that an annual report is to be made within the calendar month of the anniversary of the date on which the person first reported.

48. For the sake of completeness, the words “each year” can also be construed to mean annually, which is consistent with the reference to the obligation in the heading to s 10 of the Act. This adds some small measure of support to the prosecution’s interpretation.

The second judgment

54. In the second judgment the Magistrate correctly set out the elements of the offence and that the prosecution bore the onus of proving the elements of the offence to the criminal standard. The Magistrate noted that the appellant sought to establish that he had a reasonable excuse for not making an annual report and that he bore the onus of proving that on the balance of probabilities.

55. The Magistrate noted that the appellant contended that he had a reasonable excuse on two bases. First, that the appellant had already reported three times in 2020 and second, that the statutory notices given to him did not refer to the s 10 obligation to make an annual report in May 2021.

56. As to the first argument, the Magistrate correctly decided that the appellant’s compliance with his s 11 obligations could not amount to a reasonable excuse to comply with his s 10 obligation which was separate and distinct and intended to serve a different purpose under the legislation.

57. As to the second argument, the Magistrate relied on the unchallenged evidence of Senior Constable Johnson that the appellant was aware of his reporting obligations when he spoke to him in May 2020, and also on the admissions made at the time of his arrest to the effect that he was aware of his annual reporting obligation. In other words, the Magistrate found that the appellant knew of his obligations and was not relying on the content of the statutory notices. On this basis the Magistrate did not engage with the appellant’s argument about the content of the statutory notices. Whilst I accept the Magistrate’s reasoning was open to her on the evidence, I would also reject the appellant’s argument based on the content of the statutory notices for the reasons that follow.

58. Clause 12 of the Regulations sets out the required content of a statutory notice. Clause 12(2) sets out the only time related requirement as follows:

Each statutory notice must also contain a statement reminding the registrable person of his or her reporting period and specifying the date on which the reporting period ends.

59. The length of the reporting period is determined by s 14A of the Act. In this case the statutory notice made reference to the appellant’s reporting period and specified the date on which it ended. In addition, each of the Form 4s initialled and signed by the appellant contained the following entry on the top right hand corner of each page (which I understand as a reference to May 2021):

Annual Report Due: 05/2021

60. In addition, the appellant was issued with a Form 3 on each occasion he attended the police station that set out his reporting obligations under the Act. A copy of the Form 3 dated 30 September 2020 included the following entry on the first page:

You must attend at a police station to report your personal information each year and continue to do so each year.

Conclusion and Orders

61. For all of these reasons, I am not satisfied on the evidence that the Magistrate’s decision was wrong. Having conducted an independent review of the evidence, I am satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence.

62. The orders I make are:

1. Appeal against conviction dismissed.

2. I confirm the penalty imposed by the Magistrate.

**********

Decision last updated: 08 February 2023