MSB v Chief Commissioner of Police
[2018] VSC 374
•11 July 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 5214
| MSB | Plaintiff |
| v | |
| CHIEF COMMISSIONER OF POLICE | Defendant |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 June 2018 |
DATE OF JUDGMENT: | 11 July 2018 |
CASE MAY BE CITED AS: | MSB v Chief Commissioner of Police |
MEDIUM NEUTRAL CITATION: | [2018] VSC 374 |
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SEX OFFENDERS REGISTRATION – Registrable offender – Registrable offence – Possession of child pornography commenced as child and continued as adult – Guilty plea – Finding of Magistrates’ Court – Power of Chief Commissioner to serve a notice – Sex offender registration order – Sex Offenders Registration Act 2004 (Vic) ss 1(1), 1(2), 3, 6, 7, 11(1)-(6), 50, 51, 54, 55, 62(1), Class 2 offence, Sch 5, Crimes Act 1958 (Vic) s 70(1) (now repealed), Sentencing Act 1991 (Vic) s 75, Criminal Procedure Act 2009 (Vic) s 3.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E Kelly | Stary Norton Halphen |
| For the Defendant | Mr C Tran | Victorian Government Solicitors Office |
HIS HONOUR:
Introduction
The plaintiff seeks declaratory relief and judicial review of the decision of the Chief Commissioner of Police to serve notices on him as a registrable offender under s 54 of the Sex Offenders Registration Act 2004 (Vic) (‘Act’).
The plaintiff submits that he is not a registrable offender for two main reasons. First, he says that the Chief Commissioner is bound by decisions of the Broadmeadows Magistrates’ Court (‘Court’) not to make a sex offender registration order. Secondly, he says that he downloaded the child pornography when a child and is entitled to be dealt with on this basis. He also submits that under the Act, the power to make a sex offender registration order is reserved for a judicial officer and not the Chief Commissioner, and that the exercise of this power by the Chief Commissioner is therefore beyond power and invalid.
The Chief Commissioner says that the plaintiff is a registrable offender under the Act, having been found in possession of child pornography as an adult and sentenced for a registrable offence. He says that the ordinary application of the Act is unaffected by the Court decision, as the making of a sentence for a registrable offence empowers the Chief Commissioner to serve a written notice. He says that in the absence of express statutory power to do so, there is no jurisdiction for a judicial officer to dispense with the reporting obligations imposed by the Act on adults convicted of Class 2 offences.
Both parties rely on the affidavits filed in the proceeding. There are no disputed facts. The Chief Commissioner has consented to any necessary extension of time for the plaintiff to bring this proceeding.
Background facts
The plaintiff was born in December 1993. According to the police brief, in about 2010 the plaintiff commenced to view child exploitation material by downloading the material from a website onto his laptop and external disc drive. The plaintiff was then 16 years old.
On 21 May 2014, Victoria Police officers executed a search warrant at the plaintiff’s home, seizing 13 items including computers, tapes and USB drives. Two items were found to contain child pornography. The plaintiff was then 20 years old.
At that time, the plaintiff was represented by Ms Strugnell, a solicitor with Victoria Legal Aid. She met with the informant following the execution of the search warrant to view the images that had been obtained.
On 25 February 2015, the plaintiff was interviewed by the informant. He admitted to downloading the images to his laptop and hard drive while in secondary school, but said that he had not accessed the images since leaving school in 2012.
First plea hearing
On 30 June 2015, Ms Strugnell appeared before Magistrate Bentley on behalf of the plaintiff. A police prosecutor appeared on behalf of the informant. He read out a statement of alleged facts and a statement made by the plaintiff. Ms Strugnell accepted those summaries on the plaintiff’s behalf, and entered a plea of guilty to a charge under s 70(1) of the Crimes Act 1958 (Vic).[1]
[1]Crimes Act 1958 (Vic) ss 68(1) and 70(1), subsequently repealed by Crimes Amendment (Sexual Offences) Act 2016 (Vic) s 18, inserting Crimes Act 1958 (Vic) ss 51H (accessing child abuse material) and 51G (possession of child abuse material).
The particulars of the charge to which the plaintiff pleaded guilty were:
The accused… on the 21st May 2014, did knowingly possess 92 image files which depict a person who appears to be under the age of 18 years engaging in sexual activity or in an indecent context or manner.
In making a plea, Ms Strugnell confirmed that the images were downloaded in 2010, when the plaintiff was under 18 years of age, and that no image files had been accessed after early November 2012. She submitted that as the images were downloaded when the plaintiff was a child, the Court had a discretion in regards to registration under the Act. She handed up copies of ss 6 and 11 of the Act to the Court. She then handed up a copy of a letter from the plaintiff and three medical and psychological reports.
Having heard the submissions and read the materials, Magistrate Bentley adjourned the charge for six months by way of deferral of sentence, on condition that the plaintiff continue to engage with his treating psychologist and that a further report be prepared for the Court.
The Magistrate stated that he would defer making a decision as to whether the plaintiff should be the subject of a sex offender registration order so as to allow the prosecution to make submissions on the return date.
Second plea hearing
On 9 December 2015, Ms Strugnell again appeared for the plaintiff. She submitted that the plaintiff was under 18 years of age at the time he downloaded the images and that the Court had a discretion under s 6(3)(a) of the Act as to whether the plaintiff should be placed on the register of sex offenders.[2]
[2]Act s 6(3)(a), repealed by Sex Offenders Registration Amendment (Miscellaneous) Act 2017 (Vic) s 25(3).
She provided another report from the treating psychologist and submitted that if the plaintiff were placed on the sex offenders register, he would not be able to receive treatment for his eating disorder at a specialist hospital clinic as it was a ward for children and adolescents, as well as young adults.
A certified extract of the Court order shows that on 9 December 2015, Magistrate Bentley found the plaintiff guilty of knowingly possessing child pornography without conviction, and ordered by consent that all property seized be forfeited and destroyed. He placed the plaintiff on a bond of good behaviour for a period of 12 months. There is no mention in the Court order of any decision under s 11(2) of the Act or as to whether the plaintiff had to comply with the reporting obligations of the Act.
A note of the hearing made by Ms Strugnell suggests that Magistrate Bentley ruled that because the plaintiff was a child at the time when he downloaded the images, s 6(3)(a) of the Act applied and that the plaintiff was not registrable merely because of the sentence imposed.
Application for a sex offender registration order
On 15 March 2016, an application by the prosecutor for a sex offender registration order in relation to the plaintiff was adjourned by Magistrate Bentley to a date to be fixed. He directed that an outline of reasons for seeking such an order be provided by police.
On 20 December 2016, the application for a sex offender registration order was heard. The prosecutor submitted that as the plaintiff was sentenced for a registrable offence committed at a time when he was an adult, his entry onto the sex offenders register was automatic, and there was no discretion. The defence submitted that the plaintiff was under the age of 18 years at the time of the offence and that was why he was not put on the register. Magistrate Bentley considered that he was functus officio and struck out the application.
On 24 January 2017, the plaintiff received a ‘written notice to registrable offender’ under s 54 of the Act, stating that he was obliged to keep police informed of his whereabouts and other personal details for a period of eight years from 9 December 2015. The notice was disputed by the plaintiff’s solicitors.
In November 2017, the Victorian Government Solicitors Office informed the plaintiff’s solicitors that the Chief Commissioner intended to serve a second s 54 notice on the plaintiff.
Relevant provisions of the Act as at 21 May 2014
As at 21 May 2014, the purpose of the Act as set out in s 1(1) was:[3]
[3]The Act has been amended on many occasions since 2014.
(1)The purpose of this Act is—
(a)to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time—
(i)to reduce the likelihood that they will re-offend; and
(ii)to facilitate the investigation and prosecution of any future offences that they may commit;
(b)to prevent registrable offenders working in child-related employment;
…
The outline of the Act contained in s 1(2) stated that the Act:
(a)provides for the establishment of a Register of Sex Offenders; and
(b)requires certain offenders who are sentenced for registrable offences on or after 1 October 2004 to report specified personal details for inclusion in the Register (and extends this requirement to certain offenders sentenced for registrable offences before that date); and
(c)enables the sentencing court to order juvenile offenders and offenders who commit certain sexual offences against adult victims to comply with the reporting obligations of the Act; and
(d)requires those offenders to keep those details up to date, to report those details annually and to also report certain of their travel plans; and
(e)imposes those reporting obligations for a period of between 4 years and life, depending on the number, severity and timing of the offences committed, and the age of the offender at the time an offence was committed;
…
Section 3 of the Act defined the term ‘child’ to mean any person who is under the age of 18 years.
Part 2 of the Act defined the offenders to whom the Act applied. Section 6 of the Act described the circumstances in which a person was a registrable offender. Relevantly, they were:
(1)Subject to [specified sections], a registrable offender is a person whom a court has at any time … sentenced for a registrable offence.
Notes
1Sentence is broadly defined in section 3.
…
4The effect of this Act is that any adult offender sentenced at any time … for a class 1 or class 2 offence must comply with the reporting obligations of Part 3.
…
(3)Unless he or she is a registrable offender because of subsection (2), a person is not a registrable offender merely because he or she—
(a)as a child committed a Class 1 or Class 2 offence for which he or she has been sentenced;
…
Section 7 defined a ‘registrable offence’ to include a Class 2 offence. Schedule 2 to the Act listed Class 2 offences, including offences against s 70(1) of the Crimes Act 1958 (Vic).
Section 11 empowered a court to make a sex offender registration order in specified circumstances, providing:
(1)If a court finds a person guilty of an offence that is not a Class 1 or Class 2 offence (including an offence that is a Class 3 or Class 4 offence), it may order that the person comply with the reporting obligations of this Act.
(2)A court on sentencing a person for a Class 1 or Class 2 offence committed as a child may order that the person comply with the reporting obligations of this Act if, because of section 6(3)(a), the person is not a registrable offender.
(2A)If a court finds a person guilty of an offence committed as a child that is not a Class 1 or 2 offence (including a Class 3 or 4 offence) it may order that the person comply with the reporting obligations of this Act.
(3)The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.
(4)For the purposes of subsection (3), it is not necessary that the court be able to identify a risk to particular people, or a particular class of people.
(5)The court may only make an order under this section if it has imposed a sentence in relation to the offence…
(6)The court may only make an order under this section if an application for the making of the order is made by the prosecution not later than 30 days after the sentence is imposed.
…
Part 3 of the Act set out the reporting obligations of registrable offenders. It provided for notices to be given to registrable offenders of their reporting obligations and the consequences that may arise if there was a failure to comply. Section 50 provided:
(1)A registrable offender is to be given written notice of—
(a)his or her reporting obligations; and
(b)the consequences that may arise if he or she fails to comply with those obligations.
(2)A registrable offender is to be given a notice under this section as soon as practicable after any of the following events happens—
(a)he or she is sentenced for a registrable offence;
…
(3)A notice under this section is to be given by the person or body specified in, or determined in accordance with, the regulations.
…
(5)Despite anything in this Division, a court that—
(a)makes any order or imposes any sentence that has the effect of making a person a registrable offender for the purposes of this Act; or
(b)imposes any sentence on a person in relation to a registrable offence—
must ensure that the person is, at the time the order is made or the sentence imposed, given a written notice specifying the reporting period that applies to him or her consequent on the order or sentence.
…
Section 51 requires courts to provide information to the Chief Commissioner:
(1)This section applies if a court—
(a)makes any order or imposes any sentence that has the effect of making a person a registrable offender for the purposes of this Act; or
(b)imposes any sentence on a person in relation to a registrable offence
…
(2)The court must ensure that details of the order or sentence are provided to the Chief Commissioner of Police as soon as is practicable after the making or imposition of the order or sentence.
…
Section 54 authorises notices to be given by the Chief Commissioner to registrable offenders:
The Chief Commissioner of Police may, at any time, cause written notice to be given to a registrable offender of—
(a) his or her reporting obligations; and
(b) the consequences that may arise if he or she fails to comply with those obligations.
Section 55 of the Act provides that a failure to comply with a procedural requirement does not affect a registrable offender’s reporting obligations:
A failure by any person other than a registrable offender to comply with any procedural requirement imposed on the person by this Part or the regulations does not, of itself, affect a registrable offender's reporting obligations.
Note
This section aims to prevent a registrable offender who was not given notice of a reporting obligation by an official as required by this Part from arguing that the obligation does not apply to him or her as a result of that failure if there is evidence that the registrable offender was aware of the obligation through some other means…
Later amendments to the Act
By 9 December 2015, on resumption of the plea hearing, the Act had been amended. Section 11(2B) had been added to the Act, which provides that a sex offender registration order may exempt a person or modify a reporting obligation where the person is a child:
An order under subsection (2A), for any period during which the person is a child, may—
(a) exempt the person from any particular reporting obligation; or
(b) modify any particular reporting obligation.
…
No other relevant amendments had been made to the Act by 20 December 2016, when the application for a sex offender registration order was determined.
Subsequently, the Act has been amended to define a new concept of specified offence. A specified offence is defined to mean Class 1 and Class 2 offences listed in Schedule 5 of the Act, and includes the offence for which the plaintiff was sentenced.[4]
[4]Sex Offenders Registration Act 2004 (Vic) Schedule 2, as amended by Sex Offenders Registration Amendment (Miscellaneous) Act 2017 (Vic) s 11, which also inserted Sex Offenders Registration Act 2004 (Vic) Schedule 5 – specified offences. Schedule 5 includes an offence against the Crimes Act 1958 (Vic) ss 68(1) (production of child pornography), 70(1) (possession of child pornography), as in force before the commencement of s 18 of the Crimes Amendment (Sexual Offences) Act 2016 (Vic),
A court now has power to make a registration exemption order in the circumstances described in ss 11A–11G of the Act.[5] However, it is not apparent that the plaintiff is eligible to seek such an order.
[5]Sex Offenders Registration Act 2004 (Vic) ss 11A–11G, inserted by Sex Offenders Registration Amendment (Miscellaneous) Act 2017 (Vic) s 7.
Principles of statutory interpretation
The principles of construction relating to statutes are well established. In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Heydon JJ said:
[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[6]
[6]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Heydon JJ).
A plurality of the High Court recently emphasised the importance of context in SZTAL v Minister for Immigration and Border Protection:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[7]
[7]SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936, 940–941 [14] (Kiefel CJ, Nettle and Gordon JJ) (citations omitted).
In CIC Insurance Ltd v Bankstown Football Club Ltd, the majority of the High Court said:
[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.[8]
[8]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (citations omitted).
These principles are consistent with s 35(a) of the Interpretation of Legislation Act 1984 (Vic), which requires that when interpreting statutory provisions, a construction that would promote the purpose or object underlying the relevant Act be preferred to a construction that would not promote that purpose or object.
Power to serve a s 54 notice
In seeking judicial review of the Chief Commissioner’s decisions to serve s 54 notices, the plaintiff raises two issues. First, the plaintiff says that any discretion to make a determination that a person be placed on the sex offenders register is by way of judicial, rather than administrative action, and that if the sentencing court declines or fails to exercise its discretion to determine that a person is a registrable offender, the Chief Commissioner has no power to serve a s 54 notice. Second, absent such a power, the plaintiff submits that the exercise of the Chief Commissioner’s powers to serve a s 54 notice is invalid and amenable to judicial review.
The plaintiff relies on the decision of Magistrate Bentley, who did not make a sex offenders registration order. No application was made to review this decision in the Supreme Court.
The Chief Commissioner contends that the plaintiff is a registrable offender by operation of s 6(1) of the Act. As a result, the Chief Commissioner is empowered by the Act to serve a written notice on the plaintiff under s 54. The notice is therefore valid, and the plaintiff is required to comply with it. No sex offender registration order is necessary.
The scheme of the Act
It is an express purpose of the Act to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time. This procedure is intended to reduce the likelihood of re-offending and to facilitate the investigation and prosecution of any future offences that offenders may commit.[9] To achieve this purpose, the Act makes provision for different categories of sex offenders.[10]
[9]Act s 1(1).
[10]The position of interstate and overseas offenders and the obligations of courts on sentencing persons following the determination of appeals is not relevant here and is not further considered or discussed.
The first category arises where an adult offender is sentenced for a registrable offence. A registrable offence is a Class 1 or Class 2 offence as listed in Schedule 1 and 2 of the Act.[11] At the relevant time, s 6 defined a registrable offender as a person whom a court has at any time sentenced for a registrable offence. Note 4 under s 6 correctly states that the effect of the Act is that any adult offender for a registrable offence must comply with the reporting obligations of Part 3 of the Act.[12] For offences in this category, the reporting obligations under the Act operate in an obligatory manner under s 6(1).
[11]Act s 7(1) states that a registrable offence is (a) a Class 1 offence; or (b) a Class 2 offence; or (c) an offence that results in the making of a sex offender registration order.
[12]Ibid s 51.
The second category arises where a court finds a person guilty of an offence committed as an adult that is not a registrable offence. This category includes persons who commit Class 3 or Class 4 offences. In these circumstances, the court has a discretion under s 11(1) as to whether it will order that the person comply with the reporting obligations of the Act.
The third category arises where a court sentences a person for a registrable offence committed as a child.[13] The court has discretion under s 11(2) whether to order the person to comply with the reporting obligations under the Act. This category arises only where the offender was a child when the offence was committed and where the offence committed as a child is the only reason why the person might be a registrable offender. It does not arise, for example, where the person is a multiple offender and has committed a registrable offence both as a child and as an adult.[14]
[13]Ibid s 11(2).
[14]Ibid ss 6(3), 11(2).
Sex offender registration orders
Sex offender registration orders may be made by courts exercising jurisdiction under s 11(1) of the Act.[15] They are discretionary orders made within the statutory framework of s 11.
[15]Act s 3, defines ‘sex offender registration order’ as an order made under s 11 and includes a corresponding sex offender registration order.
The Act imposes a number of restrictions on the discretionary power of a court under s 11 to decide that the reporting obligations of the Act, or modified reporting obligations, should apply to an offender. First, the court must be satisfied beyond reasonable doubt, after taking into account any matter that it considers appropriate, that the person poses a risk to the sexual safety of one or more persons or of the community.[16] It is not necessary that the court be able to identify a risk to particular people, or to a particular class of people.[17] Secondly, a court may make such an order only if it has imposed a sentence in relation to the offence (other than certain types of orders relating to children).[18] The term ‘sentence’ is widely defined in the Act.[19] Thirdly, an order can only be made if the prosecution applies for the making of the order no later than 45 days after the sentence is imposed.[20]
[16]Ibid s 11(3).
[17]Ibid s 11(4).
[18]Ibid s 11(5), referring to s 360(1)(b)–(d) of the Children, Youth and Families Act 2005 (Vic).
[19]Ibid s 3.
[20]Ibid s 11(6).
Reporting obligations
Part 3 of the Act provides that a registrable offender is to be given written notice of his or her registration obligations, and the possible consequences of non-compliance, as soon as practicable after he or she is sentenced for a registrable offence.[21] Courts are required to ensure that a person is given a notice specifying the reporting period that applies to him or her where the court makes any order or sentence that has the effect of making a person a registrable offender, or where the court imposes any sentence on a person in relation to a registrable offence.[22] This includes providing information to the Chief Commissioner of the determination of any appeal against the finding of guilt or sentence in respect of a registrable offence, or against the making of a sex offender registration order in respect of an offence.[23] The Chief Commissioner is empowered, at any time, to cause written notice to be given to a registrable offender of his or her reporting obligations, and the consequences that may arise in the event of failure to comply with those obligations.[24]
[21]Ibid s 50(1)–(2).
[22]Ibid s 50(5).
[23]Ibid s 51(1).
[24]Ibid s 54.
Decisions of the Court of Appeal
The scheme of the Act and the effect of the key provisions have been fully articulated in decisions of the Court of Appeal. [25]
[25]See Bowden v The Queen (2013) 44 VR 229, 235–236 [23]–[27] (Redlich, Coghlan JJA and Dixon AJA); DPP v Ellis (2005) 11 VR 287, 293 [14], Callaway and Batt JJA agreeing at 297 [29]–[31]; WBM v Chief Commissioner of Police (2012) 43 VR 446, 457 [46], 458 [48] (Warren CJ); R v Cheetham (2006) 13 VR 304, 304-305, [3]–[5] (Nettle JA), Buchanan JA and Chernov JA agreeing at 308 [23]–[24].
In R v Cheetham, the Court of Appeal said:
The scheme of the Act is to require a ‘registrable offender’ to comply with reporting obligations prescribed by Div 1 of Pt 3 of the Act. Essentially there are two categories of offender: those who become registrable offenders by being sentenced for a Class 1 or Class 2 offence, and those who become registrable offenders upon the making of an order after being sentenced for a Class 3 or Class 4 offence.
Class 1 and Class 2 offences are designated sexual offences against children and, because they are offences against children, they are regarded as being more heinous than other sexual offences. Accordingly the Act operates such that, if a person is sentenced for a Class 1 or Class 2 offence, the person automatically becomes a registrable offender and thus bound to comply with the reporting obligations under the Act.
Class 3 and Class 4 offences are designated sexual offences against adults and, in the sense that they are offences against adults as opposed to children, they are regarded as being less heinous than Class 1 and Class 2 offences. They do not lead automatically to the offender becoming a registrable offender. The Act provides instead that the court may make a sex offenders registration order against a person found guilty of a Class 3 or Class 4 offence after sentencing the person for that offence, if the court is satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more persons or of the community. Subject to what is said below, the effect of ss 7(1)(c) and 11 would appear to be that, upon the making of the order, the person becomes a registrable offender and thus bound to comply with the reporting obligations under the Act.
…
As has been seen, the term ’registrable offender’ prima facie applies equally to a person who has become a registrable offender automatically upon being sentenced for a Class 1 or Class 2 offence and a person who has become a registrable offender by being subjected to a sex offenders registration order after being found guilty of a Class 3 or Class 4 offence and sentenced for that offence...[26]
[26](2006) 13 VR 304, 304-305, [3]–[5].
In WBM v Chief Commissioner of Police, Warren CJ observed:
It is also possible to make logical and necessary inferences of Parliamentary intent. In my view, it is plain that Parliament did not intend the Registration Act to apply to all sexual offenders convicted in Victoria. The Parliament has clearly created a sub-category of ‘certain offenders’ to whom the Registration Act may apply. ‘Certain offenders’ clearly includes only offenders who have been sentenced for a registrable offence.[27]
[27][2012] VSCA 159, [48].
The plaintiff’s situation
The certified extract of order
The certified extract of the Court register for 9 December 2015 shows the plaintiff’s date of birth in December 1993. It also certifies the date of the offence as 21 May 2014 when the plaintiff was 20 years of age. The record of the Court shows that the plaintiff was an adult on the date of the offence. It is not suggested that either date is incorrect. The fact that the plaintiff was an adult offender of a Class 2 offence appears on the face of the certified court record.
The plea of guilty
The plaintiff pleaded guilty to an offence under s 70(1) of the Crimes Act 1958 (Vic). It has been long established that a plea of guilty is an admission of all the elements in the offence, but does not amount to an admission of any circumstances of aggravation that may be asserted by the prosecution.[28] By pleading guilty to the offence, the plaintiff admitted the essential facts and law relating to the offence. The essential facts include the date on which the offence was committed.
[28]R v Hill (1979) VR 311, 312; R v Riley [1896] 1 QB 309, 318; R v Henry [1917] VLR 525; R v Inglis [1917] VLR 672; R v Broadbent [1964] VR 733; R v Richardson [1991] TASSC 2 [16]–[17]; R v Kardogeros [1991] 1 VR 269, 270; PPP v R [2010] 27 VR 68, 80–81 [42(6)–(7)].
The preliminary brief
The preliminary brief provided to the Court by the prosecutor on 30 June 2015 and admitted by the plaintiff, describes the plaintiff as a 21 year old born in Australia in December 1993. It also describes the execution of a search warrant at the plaintiff’s home on 21 May 2014. This resulted in the seizure of equipment and images when he was 20 years old.
The record of interview
The plaintiff’s record of interview also sets out the plaintiff’s date of birth and age, and includes the plaintiff’s responses as to when specific computer files were created and images downloaded.
The following conclusions are clear:
(a) the offence of knowingly possessing child pornography to which the plaintiff pleaded guilty, and for which he was sentenced on 9 December 2015, was a contravention of s 70(1) of the Crimes Act 1958 (Vic);
(b) this offence was a Class 2 offence and is now listed in Schedule 5 of the Act;
(c) the offence was committed on 21 May 2014;
(d) the plaintiff was an adult at the time of the offence; and
(e) he was sentenced under s 75 of the Sentencing Act 1991 (Vic). This is a sentence under Part 3BA of the Sentencing Act 1991 (Vic), and a sentence within the meaning of s 3 of the Criminal Procedure Act 2009 (Vic). It is in turn a sentence within the meaning of s 3 of the Act.
It follows as an obligatory consequence of the Act that the plaintiff, once sentenced, was a registrable offender under s 6(1) of the Act. He must be given written notice of his reporting obligations and the consequences that may arise if he fails to comply with them.
It follows that the Chief Commissioner is authorised to cause the written notice to be given to the plaintiff,[29] and that the reporting obligations of the Act apply to the plaintiff in accordance with their normal operation.
[29]Act ss 50, 54.
The effect of the proceedings before the Magistrate
The plaintiff advanced two submissions as to why he should not be subject to the ordinary operation of the Act.
The plaintiff’s first submission was that Magistrate Bentley had exercised a judicial discretion not to make a sex offender registration order under s 11 and that the ‘automatic operation’ of s 6(1) of the Act should not displace the exercise of discretion by a court.
The Chief Commissioner submitted that the Court’s decisions not to make an order under s 11(1) of the Act were irrelevant and reflected a misunderstanding on the part of the prosecutor. Not only did the Act operate automatically following the plaintiff’s sentence for a registrable offence committed as an adult, but the Court had no power or jurisdiction under s 11 to make a sex offender registration order at all.[30]
[30]Referring to Director of Public Prosecutions v Ellis (2005) 11 VR 287, 293 [14] (Calloway JA), 297 [29] (Batt JA), 297 [31] (Buchanan JA).
It is plain that Magistrate Bentley was in error if he considered that he had a discretion to make a sex offender registration order under s 11(2) on the basis that the plaintiff committed a registrable offence when a child, despite the fact that the plaintiff was undoubtedly an adult when the offence was committed.
The Magistrate had no jurisdiction to consider the possible exercise of the power contained in s 11(2). The provision had no application to the plaintiff. As a result, the decision of the Court not to exercise this jurisdiction was correct, as the Court did not have jurisdiction to exercise the power in the first place.
For these reasons, I conclude that:
(a) as a registrable adult offender, the plaintiff was, and is, subject to the reporting obligations of the Act;
(b) the jurisdiction of the Court under s 11(1) and (2) was not engaged as the plaintiff was a Class 2 offender and was not a child when the offence for which he was charged was committed;
(c) any order of the Court under s 11 of the Act in relation to the plaintiff would have been beyond its jurisdiction, wrong in law and liable to be quashed by the Supreme Court;
(d) the refusal of the Court to make any order under s 11(2) of the Act was the correct result; and
(e) the misunderstanding of the police prosecutor in bringing a s 11 application before the Court does not give rise to any estoppel against the Chief Commissioner or the operation of the Act.[31]
[31]Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 202–210; Attorney-General (NSW) v Quin (1990) 170 CLR 1, 17–18.
The application made to Magistrate Bentley under s 11(2) of the Act and his decision refusing to entertain the application, do not detract from the ordinary operation of the Act as it applies to a registrable offender who was an adult. The Chief Commissioner’s powers and obligation to inform the plaintiff of his reporting obligations are unaffected.
Durative nature of possession
The plaintiff’s second submission was that s 6(1) of the Act should not apply because s 6(3)(a) should be interpreted to exclude durative offences committed as a child, even if they were continued as an adult.
The plaintiff referred to R v Jongsma, where the Court of Appeal said:
Pushing a button, once or twice, is momentary. Possession is durative and, although possession on one day only was charged, the date being immaterial one can have regard in sentencing to the length of time of possession, which here would seem to be about a month, on the appellant’s version, though about a year longer to judge by the file dates on the printed version of images.[32]
[32][2004] VSCA 218, [28] (Batt JA) (citations omitted).
The plaintiff also referred to the Second Reading Speech for the bill for the Act where it was said:
That persons otherwise found guilty of what would be a registrable offence are therefore required to report to police is subject to one exception. Juvenile sex offenders will not be obligated to do so unless ordered by a court. In this context the government readily acknowledges the need to retain discretion when dealing with young offenders.[33]
[33]Victoria, Parliamentary Debates, Legislative Assembly, 3 June 2004 (Mr Andrew Haermeyer, Minister for Police and Emergency Services).
The Chief Commissioner submitted that the plaintiff commenced knowingly possessing child pornography when a child, but continued to offend when an adult. He was an adult when he was found in possession of child pornography. He submitted that possession or retention of child pornography is discrete and serious offending.[34] Even if the plaintiff committed earlier uncharged offending, this does not avoid the fact that he pleaded guilty to a discrete and separate offence of knowing possession committed when he was an adult. The plaintiff was not a registrable offender ‘merely because’ as a child he committed a Class 2 offence, but because he committed the offence as an adult.
[34]Citing Waldon v The Queen [2016] VSCA 260, [25].
The South Australian decision of Police v Kennedy relied on by the Chief Commissioner is instructive.[35] In that case, the offending material was obtained by the defendant in the 1970s when it was not an offence to possess that material. This remained the case, despite legislative changes, until 1992. In that year, a new offence was created by Parliament which made it unlawful to possess child pornography. In 1996, the defendant was found in possession of the material, which was held to constitute child pornography. Bleby J held that the defendant was guilty of possessing child pornography.
[35](1998) 71 SASR 175.
I accept as submitted by the Chief Commissioner:
(a) Knowing possession of child pornography is a durative offence. However, while the length of possession and the circumstances whereby possession was obtained are relevant to sentencing, the durative nature of possession does not transfer the date of the offence from when the defendant is found in possession of child pornography to the date that the defendant downloaded or obtained the offending images or material.
(b) The nature of a durative offence such as knowing possession of child pornography is such that the offence is committed on each day that the material is knowingly possessed. In the present case, this includes the period after December 2011 when the plaintiff attained 18 years of age, and includes the date when he was found in possession of child pornography.
(c) Section 6(3)(a) has no application to the plaintiff, as he pleaded guilty and was sentenced in relation to a Class 2 offence committed whilst an adult. The words ‘merely because’ make it clear that s 6(3)(a) does not apply if the person is a registrable offender by reason of one or more Class 1 or Class 2 offences committed as an adult.
(d) The interpretation of the Act advanced by the Chief Commissioner is more consistent with the purposes of the Act and the outline found in s 1(2) of the Act, particularly s 1(2)(b) and (c).
Conclusion
The Chief Commissioner has power under s 54 of the Act to cause the plaintiff to be given written notice of his reporting obligations and the consequences that may arise if he fails to comply with his obligations.
The proceeding will be dismissed.
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