MJDH v Director of Public Prosecutions (SA) - [2013] SASC 68

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MJDH v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2013] SASC 68
Judgment of The Honourable Chief Justice Kourakis
10 May 2013
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - GENERALLY
This is an appeal against the sentence imposed by a Magistrate following the appellant’s plea of guilty to one count of gross indecency – the Magistrate sentenced the appellant to imprisonment for 12 months, suspended on the condition that the appellant enter into a supervised bond to be of good behaviour for two years – the Magistrate also made an order for compensation and an order that the appellant register his name with the Australian National Child Offender Register (ANCOR).
Whether the sentence is manifestly excessive – whether the Magistrate was correct to reject the account of the offending put by the appellant – whether the order for the appellant to register with ANCOR should have been made.
Held (Kourakis CJ): Appeal allowed and the sentence imposed by the Magistrate set aside for the purpose of giving the appellant an opportunity to give evidence in support of his account – the appellant’s account not proved on the balance of probabilities – the same sentence as was imposed by the Magistrate, save as to the making of the ANCOR order, imposed on appeal – a suspended sentence of 12 months imprisonment imposed.
Criminal Law Consolidation Act 1935 (SA) s 58(1)(a); Child Sex Offenders Registration Act 2006 (SA) s 4, s 6, s 6(1)(a), s 6(3)(a), s 9, Sch 1, referred to.
The Queen v Olbrich (1999) 199 CLR 270; Law v Deed [1970] SASR 374; The Queen v Morse (1979) 23 SASR 98; R v AWL [2003] SASC 416, considered.

MJDH v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2013] SASC 68
Magistrates Appeal: Criminal

Kourakis CJ: The appellant, MJDH, appeals against the sentence imposed in the Magistrates Court on 7 December 2012.
On 23 November 2012 the appellant pleaded guilty in the Adelaide Magistrates Court to one count of gross indecency in satisfaction of a number of other charges.[1] The prosecution case was based on the appellant’s admission to his wife that he had masturbated in the presence of their four-and-a-half-year-old daughter (D). Following the appellant’s plea, sentencing was adjourned to enable a psychological report to be prepared. Submissions on sentence were made before the Magistrate on 7 December 2012. The Magistrate received by way of sentencing materials the psychological report of Dr White, dated 4 December 2012, and a victim impact statement of the appellant’s wife.
[1]The charge remaining was that of committing an act of gross indecency in the presence of his child, being a person under the age of sixteen years, pursuant to section 58(1)(a) of the Criminal Law Consolidation Act 1935 (SA). No evidence was tendered with respect to a number of other charges.
The Magistrate, delivering ex-tempore remarks, sentenced the appellant to imprisonment for 12 months,[2] but suspended the sentence on the condition that he enter into a supervised bond to be of good behaviour for two years. In addition, an order for compensation[3] and an order that the appellant register his name with the Australian National Child Offender Register (ANCOR) within 28 days were made. [4]
The appellant appeals against the sentence imposed on the following grounds:
(a)the sentence is manifestly excessive;
(b)the order for the appellant to register with ANCOR is inappropriate; and
(c)insufficient weight was given to the psychological report of Dr White.
[2] Reduced from 18 months on account of the appellant’s guilty plea (33% discount).
[3] $5,421.14 payable to the appellant’s wife for relocation expenses.
[4]Pursuant to the provisions of the Child Sex Offenders Registration Act 2006 (SA).
The offence
Counsel for the Director of Public Prosecutions who appeared before the Magistrate informed the Court of the circumstances surrounding the offence as follows. On the morning of 4 June 2012 the appellant’s daughter, D, told her mother that she had put her hand on “Daddy’s penis and it was all sticky … like wee wee”. The appellant’s wife confronted him. The appellant admitted that he had laid down in D’s bed in the early hours of that morning and had masturbated. He admitted to his wife that he had masturbated in D’s presence on three or four occasions over the preceding 12 months. The appellant’s wife told him to leave the home and she reported the incident to police.
The appellant relied on the following account of the offending set out in the report of Dr White:[5]
[MJDH] said that he had gone to bed at around midnight, and had hoped to engage with his wife with sexual foreplay. He said, “She rejected me”. [MJDH] said he was still very aroused and felt very frustrated. He said, “She made me feel sexually inferior”. [MJDH] said that at that time his daughter called to him and he got up to see what was wrong. He said he lay down with his daughter after checking that she was alright. He said he had his back to her and masturbated. He said that she turned around to see him masturbating and asked “What are you going?” It was indicated that the following day his daughter told her mother what she had seen, and the mother reported it to the Police. [MJDH] said that he then attended the Sturt Police Station, where he was interviewed. [MJDH] said that he had pleaded “guilty” to the charge, and stated that he had never done anything like this before.
It is to be noted that the account given by the appellant to Dr White did not include any reference to D touching his penis. Nor did the appellant’s account make any reference to the previous three to four occasions that he had masturbated in D’s presence.
[5] FDN 4 of SCCIV-12-1728 (Lower Court File AMC-12-7901).
The course of submissions
In the course of submissions, the Magistrate, after referring to the account in Dr White’s report, said to the appellant’s solicitor:
I am slightly incredulous about it. I find it unconvincing but if that still remains your instructions there is no point in telling me again.
The appellant’s solicitor informed the Magistrate that the account was “not opposed” by prosecution. He informed the Magistrate that a written version of events had been put to the prosecution in the course of their negotiations, but that document was not provided to the Magistrate. The appellant’s solicitor elaborated a little on the account in Dr White’s report. He informed the Magistrate that the appellant went to D’s bed because she was having trouble sleeping. The appellant had done so at the request of his wife, as he had on previous occasions. The appellant’s solicitor informed the Magistrate that on this occasion the appellant was:
Sexually frustrated with respect to an encounter with his wife earlier in the evening that didn’t go as he expected so she turned him down so he was still feeling sexually frustrated and he masturbated.
The appellant’s solicitor told the Magistrate that the appellant had his back to D whilst he was masturbating.
When called upon in reply, counsel for the Director of Public Prosecutions told the Magistrate that the account in Dr White’s report “cannot be disputed”. However, he informed the Magistrate that the accepted factual basis of the plea included a touching of the appellant’s penis by D. Counsel for the Director of Public Prosecutions also informed the Magistrate that despite the assertion to the psychologist that nothing like this had happened before, it was part of the agreed factual basis that the appellant had masturbated in the presence of D on three or four previous occasions.
The appellant’s solicitor responded by informing the Magistrate that:
·the previous occasions were limited to occasions when D had walked in on the appellant whilst he was masturbating;
·following the breakdown of sexual relations with his wife the appellant had become addicted to masturbation; and
·the touching had occurred because D had woken up and reached over and “just by chance brushed” her hand on his penis.
On completion of those submissions, the Magistrate responded, “Yeah sure”.
I acknowledge that on one view those words are an expression of cynicism. However, they might also have indicated a resignation to sentencing on the agreed factual basis. The Magistrate did not make any other comment from which it might have been inferred that he was not going to accept the account given by the appellant. His Honour did not explicitly invite the appellant to support his account by giving evidence on oath.
The Magistrate then sentenced the appellant, making the following remarks:
I am asked to deal with you on the basis that you were sexually frustrated. You went to your child’s bed. You masturbated with your back to the child and the child reached across and touched your penis, and there had been prior instances of you masturbating in the child’s presence.
The inference that is put to me in the report of your statement to Jack White, and in the submissions to me, is that the child touching your penis was accidental and there is a high degree of minimisation of your culpability and blame shifting to your estranged wife because she did not satisfy you sexually. I have to say, even though I do not wish to spoil the plea, that there is a degree of unfairness in you blaming your wife and un-believability that you masturbated in your child’s bed without any intention of involving her in your sexual behaviour. I live in a land of credibility and I do not accept that your activity with your daughter was entirely sexually innocent and she just happened to reach across and touch your penis. You are minimising and you are blaming other people for what is your own deviant behaviour. But having said all that, I accept you have had a difficult childhood and I accept that you have no prior record. That is not unusual for this sort of offending. Your estranged wife is remarkably, notwithstanding your blaming of her, patient and sympathetic to you and willing to let you see your daughter again on a careful basis. I commend her for that and it might cause you to seek to reconsider who is the person who is at fault in all of this.
These are difficult matters. As I said it is typical that we deal with these matters where the person has a prior good record and there needs to be a degree of deterrence. This is serious enough offending with such a young child, in a position of trust to the child, that a gaol sentence is inevitable. I gaol you for 18 months. I give you a discount of six months for your plea of guilty. I suspend it upon you entering a bond to be of good behaviour for two years in the sum of $1000 with supervision. Undertake such psychological assessment as may be appropriate. Undertake such courses of treatment as may be appropriate generally in psychological matters, and specifically in relation to strong indications of paedophilia.
The reference to not wishing to “spoil the plea” in the second of the above paragraphs suggests that there remained some ambiguity over the approach the Magistrate would take to the agreed account of the offending before he commenced his remarks.
The Appeal
The appellant’s primary complaint advanced under the cover of ground 3 was that the Magistrate had erred in rejecting the account of the offending given in the report of Dr White on which the appellant’s solicitor had elaborated in submissions.
That appellant’s account, if accepted, mitigated the offending. The appellant therefore carried the onus of proving that account on the balance of probabilities.[6] In The Queen v Olbrich, Gleeson CJ, Gaudron, Hayne and Callinan JJ explained the shifting sentencing onus and standard of proof between prosecution and defence in sentencing in the following way:[7]
Courts of criminal appeal in Australia have considered the subject of fact finding for sentencing many times in the last thirty years. Not all of the questions that have been examined in those decisions must be considered now. For present purposes, it is enough to say that we reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous.
Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)
In the proceedings before the primary judge in this case, the prosecution did not submit that the sentence to be imposed on the respondent (a fifty-eight year old first offender who pleaded guilty to importing more than 1.1 kg of heroin) should be increased beyond what otherwise would be called for by those facts because the appellation "principal" could be attached to him. Rather, the respondent submitted that the sentence otherwise to be imposed on him should be mitigated because he was "a courier". The respondent bore the burden of proving this fact. The judge was not persuaded of it.
As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey — that a sentencing judge
"may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."
[6] The Queen v Olbrich (1999) 199 CLR 270.
[7] 199 CLR 270 at [24]-[27].
In my view, the pronouncement of the High Court in The Queen v Olbrich modifies, in an important respect, the principles set out by Bray CJ in Law v Deed.[8] The primary principle identified by Bray CJ in that case is the right of the defendant “to have nothing beyond the essential legal ingredients of the crime assumed against him if it is denied by him, unless and until it is proved to the satisfaction of the Court by sworn evidence subject to cross-examination” (emphasis added). That principle was not disturbed by the decision in The Queen v Olbrich.
[8] [1970] SASR 374 at 377-379.
The sworn evidence to which Bray CJ referred may be found in the committal declarations and hence the rule that a defendant must give sworn evidence to contradict or dispute a circumstance of aggravation appearing in them.
Bray CJ extended the principle governing circumstances of aggravation to matters put in mitigation as follows:[9]
The right of the defendant must be no less with regard to circumstances of mitigation such as those claimed in the present case. Here, however, there is no possibility normally of comparing sworn statements with sworn statements or unsworn statements with unsworn statements. The facts normally are within the knowledge of the defendant alone. Nevertheless, the Courts must “within the bounds of reasonable possibility” accept the defendant’s version.
It is the last sentence in that passage which, in my respectful view, has been overruled by the decision of the High Court in The Queen v Olbrich. The Queen v Olbrich holds that the defendant must establish circumstances of mitigation on the balance of probabilities unless they are accepted by the prosecution and the sentencing judge.
[9] Law v Deed [1970] SASR 374 at 378.
A defendant’s onus to prove a mitigating circumstance deprives the often heard prosecution submission, that the defendant’s account cannot be disputed, of any meaningful utility. The question is not whether the prosecution has positive evidence to contradict that mitigating circumstances. As this case shows, and Bray CJ observed in Law v Deed, the prosecution will seldom have any such evidence. The question is whether the prosecution accepts the defendant’s account or instead requires the defendant to prove a matter in mitigation on the balance of probabilities.
The dictates of procedural fairness play an important part in this aspect of sentencing procedure. A sentencing court should not, in the face of a challenge by the prosecution, or on its own initiative, reject a defendant’s explanation without according the defendant an opportunity to give evidence on oath in support of it. As Bray CJ explained in Law v Deed:[10]
Some stories which might appear incredible when related in oratio oblique by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination.
Subject to the qualification with respect to the onus, that proposition remains sound.
[10] [1970] SASR 374 at 378.
There is a final aspect of the sentencing procedure I have adumbrated to which I wish to draw attention. It may be that in the course of sentencing negotiations, the prosecution agrees that it will not challenge a defendant’s submissions in mitigation. However, in those negotiations attention should explicitly be given to the position which will be taken by both the defendant and the prosecutor in the event that the Court rejects the submission and requires the defendant to go into proof.
During the course of the hearing of the appeal I was persuaded that the uncertainty over the position which the Magistrate would adopt deprived the appellant of an adequate opportunity to support his account in the witness box. I indicated to counsel that I would allow the appeal on that ground. After hearing submissions I determined that the matter should not be remitted to the Magistrates Court. I also intimated that I was not prepared to accept the appellant’s account unless it was proved on the balance of probabilities by sworn evidence. I invited the appellant to give sworn evidence in support of his account.
Evidence on Appeal
The appellant was sworn and gave the following evidence. He married in 2003. He described a deterioration in the relationship with his wife following the death of her mother who passed away, just after D was born, in 2007. The appellant described supporting his wife as best he could through the periods of her depression that followed. They were both working long hours, the appellant in his Thebarton sound recording studio and his wife in a pre-school day care centre operated from their home. The appellant gave evidence that he “became addicted to masturbation” as the sexual relationship with his wife deteriorated.

With respect to the offence itself, the appellant explained that D had been moved from the parental bed where she had slept from birth into her own room just two weeks before the incident. On the night of the offending the appellant arrived home at about 11.00 pm. His wife was asleep. The appellant went to bed and made sexual advances that were rejected by his wife.
Later, at about 3.00 am, D called out for him. He went to her bed to settle her. D complained to him of discomfort between her legs. The appellant testified that D suffered a vaginal rash that was being treated by both he and his wife with the topical application of paw paw cream. The appellant gave evidence that it was too cold for him to get the paw paw cream from another part of the room. He testified:
A… It was up in the shelf and it was freezing cold and it was warm in her bed and I didn’t get up and get it. I just rubbed her and said “is that better, [D]”. She said “thanks Daddy, that’s it”. I rubbed her back. I always massaged her back to put her back to sleep.
His Honour:
…
Q Had you ever rubbed her vagina without paw paw cream before.
ANo, this was the first time, only because I couldn’t be bothered going to get it.
Q… What made you think that rubbing her in the vulval area without paw paw cream or other cream would help.
AI just did what she told me to do.
QI am asking you as an adult and father why you thought that rubbing that area without paw paw cream would help.
AI didn’t really think about it at the time, I just did what she said and I said “Is that better” and she said “Yes, that’s better”. There was nothing sexual involved, you’ve got to understand that. This whole thing isn’t anything to do with [D] and me getting off on a young child. It’s my daughter. I made some inappropriate behaviour, I accept that, but this is nothing to do with children, this has never happened before, it’s about being sexually frustrated and making some inappropriate behaviour and some bad decisions. My head wasn’t straight at the time and that’s what this is all about, basically.
The appellant explained his decision to masturbate in this way:
AYes, and it was more the fact that I was – kept saying to myself “Oh, look, just get up and go to the bathroom”. I’ve still got that erection. I wanted to so badly and it was freezing cold, it was early June. It was one of those really cold winter nights and in hindsight, yeah, I would give anything to take all this back and do that, do things right, you know. If I could see where all this has led and the mistakes that I’ve made, I would give anything to have that time again, your Honour. I mean that from the bottom of my heart.
The appellant testified that he had been lying in the bed for five to ten minutes before he started masturbating. He continued:
AWell, in my head I realised when I masturbated when she was asleep and then she woke up she goes “What are doing daddy”. I said “Daddy is being naughty, go back to sleep” and she did but I never – at the time, obviously, I wasn’t thinking straight because I did those actions that I’ll regret for the rest of my life.
QWould you have masturbated in her bed if you thought that she was awake and watching.
ADefinitely not. Absolutely not.
The appellant explained how it came to be that D touched his penis:
AWell, she woke up so I stopped and she said “What are you doing, daddy?” And she just reached over and there was – what do you call it, pre-ejactulative fluid on my penis because I’d already had the erection before and it was just, you know, it’s hard to explain but, yeah, it was just there, you know.
QSo you acknowledge that she touched your penis.
AYes, and I said – she goes “What are you doing, daddy?” And I said “Daddy’s been naughty, go back to sleep” and then I rubbed her again and did put her back to sleep and went back to my bed.
QWhen you say you “rubbed her again”, what did you rub.
AJust her back and put her back to sleep.
The appellant further explained the contact by disclosing that even though he was wearing pyjamas he had left his penis exposed when he turned around.
The appellant gave the following evidence about the other occasions on which he had masturbated in D’s presence. The first occasion occurred when D walked into his bedroom whilst he was masturbating in the bed. On another occasion D was in the shower with him and he turned away from her to masturbate believing that D could not see him.
Another incident occurred in summer when the appellant was in the bed in the studio, located in the family home, in which he occasionally worked. The appellant described the incident in this way:
AThere was another time – there was one other time in the – we had a room set up in – where I would sleep in a separate bed down in the bottom part, which was my section of the family daycare centre and that was like a double futon bed that I would just have set up so I could sleep because I liked to have the air conditioner on and very cold. I sweat a lot so my wife couldn’t stand it when it was cold in the bedroom so I’d go down there in the hot summer days and often [D] would want to come down there too and there was one occasion where she’d fallen asleep, she was in a very deep sleep and I masturbated then but she stayed asleep the whole time.
QSo that’s another example where something happened in her presence.
AYes, but she wasn’t awake at all.
QSo in that situation no engagement between you and her.
AAnd this is why she’s never mentioned this to [the appellant’s wife] before that incident because she wasn’t really aware.
His Honour
QThis occasion in the futon bed downstairs, was that during summer.
AYes.
QWhy didn’t you get up out of bed on that occasion.
AI was comfortable and I knew she was sleep and I knew she wouldn’t wake up and she didn’t, so, yes, it was still a bad error of judgment, but she didn’t wake up – she was in a very deep sleep and I knew she wouldn’t but I had put myself over the other side, we were sleeping back to – head to toe, so I was down the other end.
Assessment of the Evidence
The appellant testified in a persuasive manner. He answered questions directly and without any attempt to evade the embarrassing and, on their face, improbable aspects of his account. He was not argumentative. He maintained constant eye contact with his questioner. He appeared to deeply believe in the truth of his account and to express genuine regret for what, on his account, were a series of grave errors of judgment made without any paedophilic sexual motive.
On the other hand, it is, to my mind, quite improbable that the presence of his daughter on all four occasions was completely unrelated to his sexual arousal. In the ordinary course, the presence of a child can be expected to extinguish any sexual arousal felt by his or her parent.
The decision to masturbate on three occasions knowing that D was present, and, in the shower incident, awake, strongly suggests a prurient connection between the two. The appellant’s explanation for D’s touching of his penis on the occasion of the offence of which he was convicted is also very improbable.
Despite the persuasive delivery of the appellant’s testimony, I am not satisfied on the balance of probabilities that there was no sexual motivation in his offending.
In the face of the appellant’s testimony, the question whether I am satisfied beyond reasonable doubt that there was a prurient interest in D’s presence is more difficult. The appellant’s tendency to shift responsibility for his conduct onto his wife suggests limited insight, or willingness to confront his own motivations. It is perhaps for that reason that his testimony appeared to be sincerely given.
The appellant acknowledged in his testimony that he was emotionally and psychologically strained at the time of the offending and that he would have benefitted from counselling. Dr White’s report records that the appellant had a troubled childhood. He was sexually abused by his brother. The appellant also told Dr White that his mother was “not a very loving person”.
The assessment of Dr White that the motivation for the appellant’s conduct did not include a paedophilic tendency is of limited weight because he was not told of, or, at least, has failed to address the fact that D touched the appellant’s penis on the occasion charged. Nor was he informed of the detail of the earlier occasions.
The appellant’s frank disclosure of the earlier incidents is some reason to allow him the benefit of the doubt, but, on the other hand, he was effectively locked into doing so by his early admissions to his wife. The appellant’s testimony causes me to doubt that D had become the object of any sexual desire on his part. However, I am satisfied beyond reasonable doubt, by inferences which I draw from the admitted course of conduct itself, that D’s presence played a part in his arousal even though I am not able to determine precisely what that part was.
Resentencing
The maximum penalty prescribed by the law for the offence of Committing an Act of Gross Indecency is, for a first offence, 3 years imprisonment.[11] In fixing a proper sentence a sentencing court must consider the stipulated maximum penalty along with the standards of sentencing customarily observed with respect to such a crime, the place which the conduct occupies in the scale of seriousness of crime of that type and the personal circumstances of the offender.[12]
[11] Section 58(1)(a) of the Criminal Law Consolidation Act 1935 (SA).
[12] The Queen v Morse (1979) 23 SASR 98 at 100.
The appellant fell to be sentenced on the basis that the offence of gross indecency was motivated in part by sexual feelings which, in some undefined way, involved D’s presence. The offence was not mitigated by being an isolated incident. It was aggravated because the appellant surrendered his responsibility to protect his daughter to his psychologically and sexually disturbed state. The relationship of parent and child is a seriously aggravating circumstance. On the other hand, I am satisfied that with appropriate counselling the appellant can restore his psyche to a more balanced and healthy state.
The offence of gross indecency includes intentionally engaging in grossly indecent conduct in the presence of another, even if that person is unaware of the conduct and irrespective of any sexual motivation.[13] In my view a starting point of 18 months is appropriate having regard to the maximum penalty of 3 years for a first offence. A higher maximum penalty of 5 years is prescribed for subsequent offences.
[13] R v AWL [2003] SASC 416.
Like the Magistrate, I take the view that a reduction of one third from the starting point for the appellant’s prompt confession when he was confronted by his wife, for his subsequent cooperation with police, and his guilty plea, is appropriate.
I too would suspend the sentence on the conditions fixed by the Magistrate.
Ground 2 – ANCOR order
The DPP conceded that the Magistrate made an order for the appellant to register with ANCOR but contended that the order was unnecessary because, on his conviction, the appellant was by force of s 6 of the Child Sex Offenders Registration Act 2006 (SA) (CSOR Act) a registrable offender and subject to the operation of the CSOR Act.
The offence of gross indecency to which the appellant pleaded is a Class 2 Offence.[14] It is a statutory consequence of the sentence imposed by the Magistrate and which I will impose, that the appellant, in accordance with s 6(1)(a) of the CSOR Act, has obligations as a ‘registrable offender’. Because the appellant’s sentence did, and will, include a term of imprisonment and is a ‘supervised sentence’[15], he does not fall within the exception to that obligation set out at s 6(3)(a) of the CSOR Act. The power conferred by s 9 of the CSOR Act, which the Magistrate purported to exercise, is available with respect to offences which are not Class 1 or Class 2 offences and therefore not automatically subjected to regulation under the CSOR Act by s 6(1). The order for the appellant to register with ANCOR is therefore unnecessary.
[14]Section 4 and Schedule 1 Part 3 of the CSOR Act.
[15]Section 4 of the CSOR Act definition of a ‘supervised sentence’ includes a good behaviour bond under which the person entering into the bond is required to submit to strict supervision.
Summary
The appeal is allowed and the sentence imposed by the Magistrate set aside for the purpose of giving the appellant an opportunity to give evidence in support of his account.
Having heard that evidence, I impose a sentence of 12 months imprisonment but suspend that sentence. I order that the bond into which the appellant must enter be for a period of 18 months to take into account the period which has elapsed since he was sentenced by the Magistrate. The bond will be in the sum of $1,000. It is a condition of the bond that the appellant undertake such psychological assessment treatment and counselling as may be directed by his corrections officer. I award compensation to the appellant’s wife in the sum of $5,421.14.