MELVAINE v Police - [2012] SASC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MELVAINE v POLICE
[2012] SASC 32
Judgment of The Honourable Justice Kourakis
(The Honourable Justice Kourakis)
9 March 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES
The appellant was convicted on three counts of unlawful sexual intercourse in 1992 – on 30 April 2008 the appellant was registered as a “registrable offender” under the Child Sex Offenders Registration Act 2006 (the Act) – as a “registrable offender” the appellant was and remains subject to specific reporting obligations under the Act – the appellant was charged with an offence under s 44(1) of the Act when he departed the State to travel out of Australia and did not report his intended travel to the police within the time requirements stipulated in s 17 – the Magistrate found that the appellant had failed to discharge his reporting obligations under s 17(1) of the Act – consequently the Magistrate found the charged offence proved beyond reasonable and convicted and fined the appellant – whether the Magistrate erred in the construction of s 17 of the Act – whether the lack of any “reasonable excuse” must be proved by the prosecution – whether the appellant had “a reasonable excuse” for his non-compliance with the Act - whether the penalty was manifestly excessive.
Held – appeal dismissed – the reporting obligations in s 17 of the Act are applicable to any person who intends to leave South Australia irrespective of their intended departure date – there is no evidence of a reasonable excuse for the appellant’s non-compliance with his reporting obligations the sentence was not manifestly excessive.
Child Sex Offenders Registration Act 2006 (SA) s17, s18, s22, s44, referred to.
Beckwith v The Queen (1976) 135 CLR 569; Dowling v Bowie (1952) 86 CLR 136, discussed.

MELVAINE v POLICE
[2012] SASC 32
Magistrates Appeal - Criminal:

KOURAKIS J: The appellant appeals against his conviction in the Magistrates Court of an offence against s 44(1) of the Child Sex Offenders Registration Act 2006 (the Act), committed when he failed to notify a police officer of his intention to travel overseas.
On 28 September 1992, in the District Court, the appellant pleaded guilty to three counts of unlawful sexual intercourse committed in July 1992. A suspended sentence of imprisonment was imposed on 16 November 1992. The Act commenced operation on 18 October 2007. Pursuant to s 6 of the Act, the appellant was a “registrable offender” and subject to the reporting obligations contained in Pt 3 of the Act. The appellant was registered under the Act on 30 April 2008 and does not dispute his status as a registrable offender. In broad terms, the Act imposes reporting obligations on registrable offenders, including, pursuant to s 17 of the Act, an obligation to notify authorised officers of the South Australian Police (SAPOL) of their intention to…

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.

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Details

AGLC: MELVAINE v Police [2012] SASC 32
Case: [2012] SASC 32
Decision Date: 9 March 2012

CaseChat Overview and Summary

The appellant, who had previously been convicted of unlawful sexual intercourse, was charged with an offence under section 44(1) of the Child Sex Offenders Registration Act 2006. The charge arose from the appellant's failure to report his intended travel outside South Australia to the police within the timeframe stipulated by section 17 of the Act. The Magistrate found the appellant guilty and fined him. The appellant appealed against both his conviction and the sentence imposed, raising issues regarding the interpretation of section 17 of the Act, the burden of proof concerning a reasonable excuse, and whether the penalty was excessive.

The court considered whether the Magistrate erred in interpreting section 17 of the Act, which imposes reporting obligations on registrable offenders intending to leave South Australia. The court held that section 17 applies regardless of the intended departure date, affirming the Magistrate's interpretation. The court further found that the prosecution is not required to prove a reasonable excuse for non-compliance with the Act. The appellant did not provide any evidence of a reasonable excuse for his failure to report, and the penalty imposed was not manifestly excessive.

The appeal was dismissed. The court concluded that the reporting obligations under section 17 of the Act are clear and apply irrespective of the intended departure date. The burden of proof for a reasonable excuse does not lie with the prosecution, and no reasonable excuse was demonstrated by the appellant. The sentence was deemed appropriate and not manifestly excessive.

Order: The appeal is dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It has not been shown that the sentence imposed was manifestly excessive. Conclusion I dismiss the appeal against conviction and sentence

Ratio Decidendi

Legal Principle Established

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