KE (by his next friend and tutor NE) v Commissioner of Police

[2018] NSWSC 941

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	KE (by his next friend and tutor NE) v Commissioner of Police & Ors. [2018] NSWSC 941
Hearing dates:	30 May 2018
Decision date:	22 June 2018
Jurisdiction:	Common Law
Before:	Latham J
Decision:	I declare that the plaintiff is not a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW).  Costs are awarded in favour of the Plaintiff.
Catchwords:	ADMINISTRATIVE LAW – judicial review – decision of the Commissioner of Police – whether plaintiff qualifies as a ‘registrable person’ under Child Protection (Offenders Registration) Act 2000 (NSW) STATUTORY INTERPRETATION – determination that a person is a registrable person pursuant to s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW) – meaning of “a single offence” – meaning of “against the same person” – meaning of “an offence of the same kind”
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 (NSW), s 2A, 3, 3A, 3B, 4, 9, 12E, 12H, 14A, 14B, 18C, 19BB Child Protection (Prohibited Employment) Act 1998 (NSW) Commission for Children and Young People Act 1998 (NSW) Crimes Act 1900 (NSW), s 61N, 66EB, 80A, 80D, 80E, 91D, 91E, 91F, 91FB, 91G, 91H, 91J, 91K, 91L Crimes Legislation Amendment (Child Sexual Offences) Act 1998 (NSW) Criminal Code (Cth) Criminal Procedure Act 1986 (NSW), s 23 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Fardon v Attorney General for the State of Queensland [2004] HCA 46; 223 CLR 575 Kamm v State of NSW (No. 4) [2017] NSWCA 189; 95 NSWLR 179 Martin v R [2014] NSWCCA 124 Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Quinn v R (1991) 55 A Crim R 435 R v Archbold (1890) 6 WN 104 R v De Leeuw [2015] NSWCCA 183 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v Jones (1999) 108 A Crim R 50 R v Porte [2015] NSWCCA 174; 252 A Crim R 294 SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34 Westpac Banking Corporation v Australian Securities and Investment Commission [2009] FCA 1506; 181 FCR 379 Whiley v R [2010] NSWCCA 53
Texts Cited:	Allan, A., Allan, M. M., Marshall, P., & Kraszlan, K. ” Recidivism among male juvenile sexual offenders in Western Australia” (2003), 10(2) Psychiatry, Psychology and Law 359-378 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 June 2001 at 14854 Nisbet, I. A., Wilson, P. H., & Smallbone, S. W. “A prospective longitudinal study of sexual recidivism among adolescent sex offenders”, (2004) 16(3) Sexual Abuse: A Journal of Research and Treatment Warner, K. “Sentencing for Child Pornography”, (2010) 84 Australian Legal Journal 384 The Royal Commission into the NSW Police Service: Paedophile Inquiry of 1997
Category:	Principal judgment
Parties:	KE (Plaintiff) Commissioner of NSW Police (First Defendant) Children’s Court of NSW (Second Defendant)
Representation:	Counsel: E Ozen (Plaintiff) H El-Hage (First Defendant)   Solicitors: Higgins Lawyers (Plaintiff) Crown Solicitor’s Office (Defendant)
File Number(s):	2018/65975
Publication restriction:	An order is made under s 15A of the Children’s Criminal Proceedings Act, prohibiting publication of any information tending to identify the plaintiff.

Judgment

1. By a Further Amended Summons filed 11 April 2018 the plaintiff (a juvenile) seeks relief pursuant to s 69 of the Supreme Court Act1970 (NSW). Relief is sought by way of judicial review of the decisions of the first and second defendant in relation to the issue of a notice pursuant to s 4 of the Child Protection (Offenders Registration) Act2000 (NSW) (the Act). This notice is directed to “registrable persons”, defined under s 3A of the Act. As a result of the issue of the notice, the plaintiff was registered under the Act.

2. The plaintiff pleaded guilty, and was convicted and sentenced in January 2018 with respect to two offences under s 91H(2) of the Crimes Act1900 (NSW). One offence consisted of possessing child abuse material, the other consisted of disseminating that material. Both offences were committed on the same day in the same place and they involved the same child abuse material.

3. The plaintiff received the relevant notice in the registry following his conviction and was required to report to police within seven days. The plaintiff attended the police station in the presence of his legal representative, who objected to the plaintiff’s entry onto the Register, on the grounds that he came within the statutory exemption. However, the plaintiff was entered on the Register by the first defendant on 22 January 2018.

4. The dispute between the plaintiff and the first defendant may be distilled to this issue: Does the plaintiff come within the exception to s 3A provided for by s 3A(2)(c) and (5) of the Act, namely, are the two offences to which the plaintiff pleaded guilty under s 91H(2) of the Crimes Act “a single offence” in that they were “of the same kind arising from the same incident”.

5. A subsidiary issue is whether the possession offence and the dissemination offence were committed against the same person (the child the subject of the images), or whether the dissemination offence was also committed against a broader class of victims, namely the children who were potentially exposed to the material.

The Facts Underlying the Offences

6. The plaintiff was a student at a high school on 26 October 2016 when he gained access to a file on a friend’s mobile phone in the course of transferring music from that phone to his own. The file name referred to the friend’s girlfriend by name and contained 39 images of her, 20 of which were images of the girl’s breasts, vagina and buttocks. The girl was then 12 years of age.

7. The plaintiff copied the entire file to his personal folder, which was password protected, on the school’s server (the possession offence). The plaintiff then uploaded the file to a share folder on the school server, to which staff and students at the school had access (the dissemination offence). The plaintiff created a folder titled “porn” within the share folder and transferred all the images to that folder.

8. The staff were alerted to the existence of the folder by other students and the police were called.

The Legislation

9. The Act was a response to Recommendation 111 of the Royal Commission into the NSW Police Service: Paedophile Inquiry of 1997. It is part of a broader legislative scheme regulating the post release conduct of persons convicted of child sexual assault offences and related offences against children. Once an offender is registered under the Act, their employment and freedom of movement is impacted by the provisions of other legislation, including the Commission for Children and Young People Act1998 (NSW), the Child Protection (Prohibited Employment) Act1998 (NSW) and the Crimes Legislation Amendment (Child Sexual Offences) Act1998 (NSW).

10. The objects of the Act are set out in s 2A. They include ensuring the early detection of offences by recidivist child sex offenders, protecting children from serious harm, monitoring registrable persons and ensuring that registrable persons comply with the requirements imposed upon them by the Act.

11. The Act establishes a mechanism whereby persons convicted of “registrable offences” (Class 1 and Class 2 offences) become “registrable persons”. A “registrable person” is subject to intensive monitoring by police for a lengthy period of time, depending upon the severity of the offending. A notice under s 4 of the Act is automatically generated following conviction and sentence for “registrable offences”, with the result that the offender must report to police within seven days and provide the required personal information.

12. The reporting and monitoring requirements under the Act are onerous and extensive. Police have the power to take the fingerprints of “registrable persons”, which may be kept for the duration of the reporting period (s 12E and 12H). The obligation upon “registrable persons” to supply police, on an ongoing basis, with “relevant personal information” (s 9) includes any change of address, registration number of any vehicle generally used, details of proposed travel plans, details of any telecommunications carriage service and any internet provider, and any email address and/or internet user names. The “registrable person” may be prohibited from employment in any organisation involving children and may be prohibited from participating in any sporting or recreational activity that brings him/her into contact with children. The reporting and monitoring periods (8 years,15 years or life) are halved in the case of juveniles (s 14A and 14B).

13. Failure to comply with reporting requirements are offences under Division 8 of the Act. Police may, without prior notice, enter premises to verify information supplied by a “registrable person” (s 18C).

14. Class 1 offences are murder of a child, an offence involving sexual intercourse with a child that is not a Class 2 offence, persistent sexual abuse of a child, the sexual assault of a child by forced self-manipulation (s 80A of the Crimes Act), like offences against the laws of a foreign jurisdiction and offences of attempt, conspiracy and incitement to commit like offences.

15. Class 2 offences are the manslaughter of a child, acts of indecency against a child that are punishable by imprisonment for more than 12 months, the infliction of grievous bodily harm by an adult upon a child under 10 with intent to do so, procuring or grooming a child for unlawful sexual activity (s 66EB of the Crimes Act), kidnapping of a child by a person other than a parent or carer, sexual servitude of a child or conducting a business of that nature (s 80D and 80E of the Crimes Act), abduction of a child by a person who has never had parental responsibility for that child, offences involving child prostitution (s 91D, 91E, 91F of the Crimes Act), offences involving dealing with child abuse material (s 91G and 91H of the Crimes Act), offences of voyeurism committed against a child (s 91J, 91K, 91L of the Crimes Act), like offences against the laws of a foreign jurisdiction and offences of attempt, conspiracy and incitement to commit like offences.

16. Class 1 and Class 2 offences also include equivalent offences under the Criminal Code (Cth).

17. Section 3A defines “registrable person” as someone who has been sentenced by a court for a “registrable offence”. A “corresponding registrable person” (s 19BB of the Act) is a person who has been subject to registration for like offences in a foreign jurisdiction. Under Part 2A of the Act, a court may impose a child protection registration order upon a person convicted of an offence falling outside Class 1 and Class 2 offences, if an application is made by the prosecution or police and the court is satisfied that the person poses a risk to the lives or sexual safety of one or more children. The person is then deemed to have been found guilty of a Class 2 offence and becomes a “registrable person.”

18. Section 3A(2) of the Act provides for certain exceptions:-

(2) Unless a person is a corresponding registrable person, a person is not a registrable person merely because the person:

(a) is a person in respect of whom a courts has made an order under section 10 of the Crimes (Sentencing Procedure) Act1999 or section 33(1)(a) of the Children (Criminal Proceedings) Act 1987 (or an equivalent order under the laws of a foreign jurisdiction) in respect of a Class 1 or Class 2 offence, or

(b) (Repealed)

(c) as a child committed:

(i) a single offence involving an act of indecency, or

(ii) a single offence under section 91H of the Crimes Act 1900 or an offence of producing, disseminating or possessing child abuse material (in whatever terms expressed) under the laws of a foreign jurisdiction, or

(iii) a single offence under section 91J (1), 91K (1) or 91L (1) of the Crimes Act 1900, or

(iv) a single offence (including an offence committed under the laws of a foreign jurisdiction) that falls within a class of offence the regulations prescribe for the purposes of this subparagraph, or

(v) a single offence an element of which is an intention to commit an offence of a kind listed in this paragraph, or

(vi) a single offence of attempting, or of conspiracy or incitement, to commit an offence of a kind listed in this paragraph, or

(d) is a person whom a court has found guilty of a registrable offence before 15 October 2001, unless the person is an existing controlled person or the offence results in the making of a child protection registration order against the person.

19. Section 3A(5) provides that “[a] reference to a single offence in this section includes a reference to more than one offence of the same kind arising from the same incident.”

20. Subsection (3) of s 3 of the Act provides that “offences arise from the same incident only if they are committed within a single period of 24 hours and are committed against the same person.”

21. Section 3B provides that a person ceases to be a “registrable person” if an appeal against conviction succeeds, if an appeal against sentence results in a sentence which places the person outside the reach of the Act, or a child protection registration order is quashed.

22. In general terms, the legislature has carved out exemptions in the case of adults and juveniles who have received the benefit of a conditional discharge or the dismissal of the charges against them. In the case of juveniles, further exemptions apply which focus upon the commission of a ”single offence” involving an act of indecency, dealing in child abuse material, voyeurism, or ancillary offences. The definition of a “single offence” allows for the application of these exemptions to juveniles who have committed more than one offence in defined circumstances.

23. There are several features of the Act which support the conclusion that the policy behind the registration of offenders is aimed at recidivists, that is, those who habitually relapse into the commission of offences against children, post-sentencing. The objects of the Act specifically refer to recidivist offenders and the provisions relating to a “single offence” reflect that focus.

24. That this was the legislative intention is confirmed by the Second Reading speech of the then Minister for Police on 20 June 2001 (Hansard, Legislative Assembly 14854):-

The Act treats offences arising from the same incident as a single offence, as it is possible that an offender may be charged with multiple offences for the same action. The Act seeks to impose longer registration periods on recidivists, not people who receive multiple charges for a one-off offence against a single victim.

It was never the intention of the Government that lawyers would spend valuable court time arguing the meaning of “arising from the same incident”. Accordingly, new section 3(3) makes the meaning of that term precise and transparent. New section 3(3) adopts the 24 hour threshold used in distinguishing the separate incidents in the offence of persistent sexual abuse of a child. Offenders who commit offences outside a single period of 24 hours demonstrate clear recidivist behaviour and will not be able to satisfy the same incident test. The test also excludes persons who commit offences against more than one victim, even where those offences were committed at the same time.

25. The exemptions aimed at juvenile offenders, in particular, recognise that the consequences of registration impact severely and disproportionately upon them, in circumstances where immaturity and poor judgment contribute to a potentially isolated instance of offending. Those consequences would inhibit, if not terminate, access to educational opportunities, sporting activities and interactions with a peer group, all of which are important to the personal development and socialisation of young people. Moreover, the consequences of registration would adversely affect career choices and occupational development far into the future.

26. The assessment of risk or future dangerousness is notoriously difficult and potentially unreliable: Fardon v Attorney General for the State of Queensland [2004] HCA 46; 223 CLR 575 at [12] (Gleeson CJ); at [124]- (Kirby J). In the case of juveniles, research suggests that only 9% of adolescents convicted of sexual offences against children commit further sexual offences: Nisbet, I. A., Wilson, P. H., & Smallbone, S. W. “A prospective longitudinal study of sexual recidivism among adolescent sex offenders”, (2004) 16(3) Sexual Abuse: A Journal of Research and Treatment , 223-234; Allan, A., Allan, M. M., Marshall, P., & Kraszlan, K. “Recidivism among male juvenile sexual offenders in Western Australia” (2003), 10(2) Psychiatry, Psychology and Law 359-378.

27. Against this background, the targeting of recidivism, as one important measure in the assessment of risk, attempts to strike an appropriate balance between safeguarding children from serious harm and the far-reaching consequences to juvenile offenders of registration under the Act.

The Application of s 3(3) – “Against the Same Person”

28. It is accepted that the two offences were committed within a single 24 hour period and that the person against whom the possession offence was committed was the child the subject of the images.

29. As the discussion below demonstrates, offences of possession and dissemination do not require proof of a “victim”. They are complete upon proof that the offender controlled or used the material, which qualifies as “child abuse material”, in the requisite sense.

30. The first defendant maintains that the dissemination offence was not committed “against the same person” because the material was made available to children within the plaintiff’s school, thereby widening the scope of those adversely affected by the material to include “indirect victims”.

31. Before descending to the particular, it is noteworthy that the phrase “against the same person” is capable of application to a broad range of offences, not all of which are committed against an identified victim. Class 1 offences and the majority of Class 2 offences are, by definition, committed against an identified victim.

32. Moreover, s 3(3) applies for the purposes of s 14A of the Act, a provision which confines the length of the reporting period for adult offenders who have been convicted of a “single offence”. A “single offence” for these purposes includes two or more offences arising from the same incident (s 14A(4)).

33. Offences involving the possession, production and dissemination of child abuse material may be committed absent the identification of the child or children the subject of the images, and even in circumstances where the relevant images are representations of children: s 91FB(3) of the Crimes Act. This type of imagery has been referred to as pseudo-imagery or virtual child pornography: Warner, K. “Sentencing for Child Pornography” (2010) 84 Australian Legal Journal 384 at 387, 388, referring to the NSW Sentencing Council. Such offences are generally regarded as less serious: Whiley v R [2010] NSWCCA 53 at [63]-[71] (Whiley).

34. Despite the temptation to regard these offences as “victimless”, it has long been recognised that the production, possession and dissemination of child abuse material (or child pornography) victimises children by way of their corruption and exploitation in the production of that material: R v Jones (1999) 108 A Crim R 50 at [9]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 (Gent). The psychological, emotional and physical harm that is occasioned to the child by the production of the material is compounded by the potential for the material to be viewed and reproduced indefinitely, particularly if the dissemination occurs electronically: Warner, K. “Sentencing for Child Pornography” (2010) 84 Australian Legal Journal 384 at 385. Children traumatised in this way are not “indirect” victims simply because they may not be capable of identification.

28. Section 91H of the Crimes Act appears in Division 15A titled “Child abuse material”. The Division criminalises the use or procurement of children for the production of child abuse material and the production, dissemination and possession of child abuse material. Section 91H provides:-

(1) In this section:

“disseminate” child abuse material, includes:

(a) send, supply, exhibit, transmit or communicate it to another person, or

(b) make it available for access by another person, or

(c) enter into any agreement or arrangement to do so.

“possess” child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)).

“produce” child abuse material includes:

(a) film, photograph, print or otherwise make child abuse material, or

(b) alter or manipulate any image for the purpose of making child abuse material, or

(c) enter into any agreement or arrangement to do so.

(2) A person who produces, disseminates or possesses child abuse material is guilty of an offence.

Maximum penalty: imprisonment for 10 years.

36. Section 91FB of the Crimes Act defines “child abuse material” as:-

material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:

(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or

(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or

(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or

(d) the private parts of a person who is, appears to be or is implied to be, a child.

37. Whilst the Court Attendance Notice did not particularise the dissemination offence, the facts support the conclusion that it was constituted by the plaintiff providing access by other persons (both students and staff) to the relevant images on the file within the share folder on the school server (s 91H(1)(b)). The “child abuse material” which was disseminated depicted the private parts of the same child who was the person against whom the possession offence was committed (s 91FB(1)(d)).

38. In Gent, Johnson J (McClellan CJ at CL and Adams J agreeing) referred to the range of factors bearing upon the objective gravity of possession and importation offences, noting that

“…the number of images as such may not be the real point. In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised.” (at [99]) [Emphasis added.]

39. In Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 (Minehan), R v Porte [2015] NSWCCA 174; 252 A Crim R 294, and R v De Leeuw [2015] NSWCCA 183 (De Leeuw) the sentencing principles applicable to these offences were revisited. At [72] of De Leeuw, Johnson J (Ward JA and Garling J agreeing) reiterated the comment his Honour made in Gent set out above. In Whiley at [57], James J (McClellan CJ at CL and Rothman J agreeing) was of the view that the factors identified in Gent were equally applicable to an offence of producing child pornography.

40. It is clear from these authorities that in cases of dissemination of such material, the number of children depicted, the number of persons to whom the material is disseminated and the “risk of the material being seen or acquired by vulnerable persons, particularly children” (Minehan at [94]) are included in the factors that are relevant to the assessment of the objective gravity of the offence.

41. The potential for the material to be viewed by other children does not however, justify the characterisation of those children as persons against whom the offence is committed. That observation is not inconsistent with the nature and extent of the dissemination being a relevant factor in the assessment of objective gravity.

42. I note in passing that it is not an offence under the Crimes Act to expose a child to indecent material, unless the exposure is coupled with an intention to engage a child in unlawful sexual activity: s 66EB.

43. The recognition of “indirect victims” for the purposes of s 3(3) is problematic for another reason. Is a child who witnesses the indecent assault of another child an “indirect victim”? By analogy, children who view the images of a child’s “private act” as a result of an offence committed under s 91K(1) of the Crimes Act would be “indirect victims”. These vagaries render the application of s 3(3) throughout the Act uncertain and difficult. They would give rise to more lengthy reporting periods under s 14A merely on the basis that “indirect victims” may have been affected by the offending, notwithstanding that the offences were committed within a 24 hour period against the same direct victim.

44. In my view, the language of s 3(3) of the Act requires a direct nexus between the offending conduct and the victim. Throughout the definition of Class 1 and Class 2 offences, there are references to “the person against whom the offence is committed” being a child, that is, the victim of the offences: s 3(1). The principles of statutory construction demand that the phrase “against the same person” is interpreted consistently throughout the Act: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. There is no warrant to depart from that construction simply because of a variation between the passive and the active voice.

45. The child abuse material which was possessed and disseminated by the plaintiff was identical. The material the subject of each offence depicted the same private parts of the same child. Both offences were committed against the same person. The offences therefore arose from the same incident.

Offences of the Same Kind?

46. The statutory construction of “more than one offence of the same kind” begins with the text, that is, the natural and ordinary meaning of those words, having regard to the context and purpose of the Act: SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34. Whilst the legislation may properly be characterised as protective, that does not warrant a departure from this approach, or set aside the requirement to attribute meaning to words in the statute consistent with its objects: see Kamm v State of NSW (No. 4) [2017] NSWCA 189; 95 NSWLR 179 at [97], [147].

47. The natural and ordinary meaning of the phrase “of the same kind” is not controversial. Things bearing the same characteristics, or belonging to the same genus, class or type are said to be of the same kind. “Of the same kind” is obviously not “identical”: Westpac Banking Corporation v Australian Securities and Investment Commission [2009] FCA 1506; 181 FCR 379 at [30]. Thus, the plaintiff submits that the provision “an offence of the same kind” must signify more than “one instance of an identical offence”, otherwise the legislature would have adopted that course and drafted s 3A(5) accordingly. The cogency of that submission is acknowledged by the first defendant.

48. The first defendant’s argument proceeds upon the basis that the context of s 3A(5), taken together with s 3(3), requires a temporal and causal connection between the relevant offences that are said to be of the same kind. Even if the offences share common characteristics, they are not of the same kind unless they arise from the same causal circumstance (the same incident) involving the same victim(s).

49. The foundation of this submission is erroneous. Section 3(3) prescribes, for the purposes of the Act, what constitutes offences arising “from the same incident”. It is confined to the circumstances of the offending and says nothing about the similarity or otherwise of the offences. As I have already noted, it also operates to significantly reduce the reporting periods of adult offenders who have only been convicted of a single offence: s 14A. “Single offence” in this context is one Class 1 or Class 2 offence.

50. Section 3A(5) is confined in its operation to s 3A. The only references to a “single offence” in s 3A are in s 3A(2)(c), that is, it specifically enlarges the scope of a “single offence” for juvenile offenders. It provides content and meaning to “a single offence”, namely, that it includes more than one offence of the same kind, provided that they also meet the criteria in s 3(3). Logically, each provision performs a separate statutory task.

51. There is no basis upon which s 3A(5) should be confined further than its own terms dictate, or read down by the terms of s 3(3). The effect of this construction would be to render the phrase “of the same kind”, and therefore the entire provision, effectively meaningless.

52. Section 91H creates three separate or distinct offences, yet that does not determine that they are not “of the same kind”. The plaintiff points to s 23 of the Criminal Procedure Act1986 (NSW), and its previous incarnations, in support of the proposition that “distinct offences of the same kind” appearing in those provisions is consistent with a number of separate non-identical offences being “of the same kind”: Quinn v R (1991) 55 A Crim R 435; R v Archbold (1890) 6 WN 104. In Quinn, the offences under consideration were sexual offences (sexual intercourse without consent and indecent assault) and in Archbold they were offences of forging and uttering. In neither case was there discussion of what constituted offences of the same kind, but the absence of any controversy suggests that in each case it was considered that the offences in question came within the meaning of that phrase.

53. The first defendant submitted that the possession and dissemination offences were not of the same kind because:-

1. the elements of the offences were “logically distinct” (citing Martin v R [2014] NSWCCA 124 (Martin)),

2. their respective characteristics were markedly different in that “disseminate” includes an agreement to send or supply child abuse material, which does not require possession or control,

3. the words “or an offence of producing, disseminating … “ in s 3A(2)(c)(ii) indicates by the use of the singular that the legislature intended the offences to be treated differentially.

54. Martin was a sentencing appeal in respect of a number of possession and dissemination offences. The Court (Hoeben CJ at CL, Rothman and Beech-Jones JJ) allowed the appeal on the totality ground, but rejected the ground based upon manifest excess. It was in the context of re-sentencing the applicant that Beech-Jones J made the observation relied upon by the first defendant

55. The first defendant’s argument summarised at (ii) above is a re-statement of the same point, namely that the offences of possession and dissemination have different elements, albeit they both concern child abuse material. The logical extension of this approach is that distinct offences which broadly deal with the same subject matter, whether that is child abuse material, voyeurism or indecent behaviour, can never be offences “of the same kind”, given that their respective elements are different. When pressed to embrace this conclusion, the first defendant was understandably reluctant to do so.

56. As for the argument at (iii) above, it misconstrues the provision. The intention is plainly to pick up any offence in a foreign jurisdiction that corresponds to those appearing in s 91H, for the purposes of applying the exemption.

57. Section 3A(2)(c) delineates three different categories or species of offending in (i), (ii) and (iii) (an offence involving an act of indecency, an offence involving child abuse material, an offence involving voyeurism) and an ancillary offence “of a kind listed in this paragraph” ((v) and (vi)). Plainly, “of a kind listed in this paragraph” refers to the “kind” of offences set out in each of (i), (ii) and (iii).

58. A consistent and sensible reading of s 3A supports the conclusion that offences involving an act of indecency are offences “of the same kind” or genus, offences involving child abuse material are offences “of the same kind” or genus and offences involving voyeurism are offences “of the same kind” or genus.

Determination

59. In conclusion, the first defendant’s construction of both s 3(3) and s 3A(5) of the Act would significantly narrow the scope of the exemption applicable to juvenile offenders. The inclusion of “indirect victims” for the purposes of s 3(3) is productive of uncertainty in its application and correspondingly restricts the reach of s 3A(5) and s 14A. Section 3A(5) would effectively only apply to more than one identical offence.

60. The first defendant wrongly determined that the plaintiff did not come within s3A(2)(c) of the Act. The plaintiff committed two offences of the same kind arising out of the same incident.

61. The plaintiff and the first defendant agreed that, in the event that the Court found in favour of the plaintiff, the appropriate relief is to declare that the plaintiff is not a registrable person under the Act. Accordingly, I make that declaration.

62. Costs are awarded in favour of the plaintiff.

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Decision last updated: 22 June 2018