Mulholland v Tasmania - [2017] TASCCA 2

[2017] TASCCA 2

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Mulholland v Tasmania [2017] TASCCA 2

PARTIES:  MULHOLLAND, Samuel William Murray
  v
  STATE OF TASMANIA

FILE NO:  1230/2016
DELIVERED ON:  14 March 2017
DELIVERED AT:  Hobart
HEARING DATE:  8 March 2017
JUDGMENT OF:  Tennent, Pearce and Brett JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Offender asserts manifest excessiveness – Rape – Sentence of imprisonment for 3½ years not manifestly excessive.

Aust Dig Criminal Law [3521]

Criminal Law – Sentence – Relevant factors – Nature and circumstances of offender – Mental disorder - Relevance to sentence not demonstrated.

R v Verdins [2007] VSCA 102, 16 VR 269, Director of Public Prosecutions v O'Neill [2015] VSCA 325, 47 VR 395 and Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1, applied.
Aust Dig Criminal Law [3264]

Criminal Law – Sentence – Relevant factors – Nature and circumstances of offender – Other matters – Consequences of conviction – Relevance of registration under Community Protection (Offender Reporting) Act 2005 as extra curial punishment.

R v KNL [2005] NSWCCA 260, 154 A Crim R 268; TMTW v The Queen [2008] NSWCCA 50 and R v CV [2013] ACTCA 22, 233 A Crim R 67, considered.
Aust Dig Criminal Law [3269]

REPRESENTATION:

Counsel:
             Appellant:  G Barns
             Respondent:  J Hartnett
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASCCA 2
Number of paragraphs: 34

Serial No 2/2017
File No 1230/2016

SAMUEL WILLIAM MURRAY MULHOLLAND
v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
PEARCE J
BRETT J
14 March 2017

Order of the Court (8 March 2017)

Appeal dismissed.

Serial No 2/2017
File No 1230/2016

SAMUEL WILLIAM MURRAY MULHOLLAND
v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
14 March 2017

On 8 March 2017, following the hearing of this appeal, I joined in the making of an order dismissing it. I have now had the benefit of reading reasons prepared by Pearce J as to why he joined in the making of the order of dismissal. I agree with those reasons.

File No 1230/2016

SAMUEL WILLIAM MURRAY MULHOLLAND
v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
14 March 2017

The appellant, Samuel Mulholland, was found guilty by a jury of rape. He was sentenced by Porter J to imprisonment for 3½ years from 18 March 2016 with eligibility for parole after having served half the sentence. His Honour ordered that the appellant's name be placed on the register under the Community Protection (Offender Reporting) Act 2005 (the Act) and that he comply with the requirements under that Act for a period of three years following release. This appeal challenges the sentence on the sole ground that it is manifestly excessive.
On 8 March 2017, after the appeal was heard, I joined in an order dismissing it. These are my reasons for doing so.

The factual basis of sentence

The learned sentencing judge made findings of fact for sentencing to which there is no challenge. The crime was committed on 2 December 2014. At the time the complainant was aged 33 and the appellant was aged 29. The complainant lived alone with her 6 year old daughter. She met the appellant on an internet dating site and they exchanged messages for about three days before agreeing to meet in person. They met at a hotel after the complainant had picked her daughter up from school. The appellant told her he did not drive. At his request she agreed that he could come to her house after he said that he would have one of his friends pick him up "after a couple of hours". They bought alcohol on the way. The sentencing judge then described the circumstances of the crime as follows:
"They sat in the lounge, talking, drinking and watching television. After a short time the complainant put her daughter to bed, after which the two continued to talk and drink. They shared some intimate personal information. The complainant told the appellant that she had lost her father and sister to suicide and that she suffered from depression. He revealed suffering from a mental illness. They watched movies for a while. The appellant put his hand on the complainant's hand and then kissed her on the mouth. She was content with those things. Her evidence, which I accept, was that she told the appellant several times that he could not stay, intimating that nothing was going to happen. At about this time the appellant made contact with his friend and told the complainant that his friend had been drinking and would come when he sobered up. Ms B and the appellant then lay on the lounge and the appellant touched her breasts. I accept that the complainant then told him that she did not want to have sex and that it was not going to happen; she told him he could not stay. There was a further discussion about him leaving. In evidence, she said that he started getting a little heavy again with touching her. She said to him about five times that they were not having sex and that it was not going to happen. She said that this was in addition to physical ways of saying no by pushing his hands away and by her body language. Just after she said that she did not want to have sex, he climbed on top of her. She said that by that time it did not matter what she was saying or what she was going to do. He removed the three pieces of clothing she had on, took down his trousers and underpants, lay on top of her, put his fingers in her vagina and then had vaginal sexual intercourse with her. She said that immediately before he penetrated her, she could not breathe or move. After the act had finished, the complainant said to the appellant that he had just raped her. He said, 'I know, I'm sorry about that'. She told him that she had said 'No' five times, to which he replied, 'Yes, I know'. The complainant went to her bedroom, cleaned herself up and put on fresh clothes. When she went back to the lounge room the appellant was asleep. She tried to ring her mother and then rang a male friend saying that she had been raped. She repeated that to her mother when she was finally able to contact her. Police arrived at about 6am. The appellant was still there. She was reluctant to speak but revealed on direct questioning that sexual intercourse had taken place to which she did not consent, and the appellant was arrested."
When interviewed by the police the appellant admitted the act of intercourse. He also admitted the conversation immediately afterwards, but attempted to explain it on the basis that the complainant had made him feel bad and he felt sorry for her. The sentencing judge rejected the appellant's claim, given to the police and repeated during the trial, that the complainant's statements about not having sex were some time before the act of intercourse, and that she had subsequently allowed him to perform oral sex on her and intimated her willingness for intercourse. The verdict established the absence of consent. His Honour found that the appellant ought to have been aware from what the complainant said immediately before intercourse that she was not consenting, that he did not believe she was consenting and was completely indifferent to whether she was or not.
The appellant did not wear a condom during intercourse and no other precautions were taken against pregnancy. The appellant had the sexually transmitted disease, herpes. He admitted this to the police. It was at the forefront of his mind because he had recently argued with another woman about it. Fortunately, neither pregnancy nor transmission of the disease eventuated.

The appellant's personal circumstances

At the time of sentence the appellant was 31, single and living alone. He had an unremarkable upbringing. His parents are separated but supportive of him. When in high school he experienced paranoia and mild self-harming behaviour. He was diagnosed with schizophrenia and has been treated for the illness since he was about 16. He suffers hallucinations if not on his medication which he has by way of monthly injections. He has been very largely co-operative with his doctors and compliant with his medication regime, although drinking on occasions has led to lapses and hospitalisation. The sentencing judge was told that a feature of schizophrenia is deficits in mood and social interaction, even when the illness is controlled.
Notwithstanding his illness, the appellant has a good work record. He worked in several different industries, and before his imprisonment was completing qualifications as a boilermaker welder. He has no recorded offending history of any significance other than some traffic offending, some of which was alcohol related.

Manifest excess

The starting point, as always in appeals on this ground, is reference to the principles which limit the circumstances in which intervention of an appellate court is justified. They have been stated in many cases. I set them out in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8], and they were recently re-stated by Estcourt J in Stebbins v Tasmania [2016] TASCCA 6 at [34]-[37]. The principles derive from a passage from the decision of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 505 which, for reasons which will become apparent, I set out again:
"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
An assertion that a sentence is manifestly excessive is an error of the second type referred to in House. The appellant must show that the sentence is unreasonable or plainly unjust. In this case, in contending that the sentence is manifestly excessive, the appellant referred to and relied on two particular sentencing factors:
· the appellant's mental illness; and
· the punitive effect of the order made under the Act.

Consideration of the sentence

The crime of rape is always serious. It involves infliction of violence and degradation on victims. It generally calls for a sentence reflecting the need for punishment, denunciation and retribution, providing the victim with appropriate vindication and protecting the public. Rape is a crime which also ordinarily requires a sentence which seeks to deter others from similar conduct. In Sentencing in Tasmania, 2nd ed, par11.409, Professor Warner noted that a single count of rape ordinarily attracts a sentence of imprisonment of three to four years, and that a sentence of five years or more is appropriate for serious cases. Her text was cited with approval by this Court, albeit in a slightly different context, in Director of Public Prosecutions v Farmer [2005] TASSC 15, 13 Tas R 418, per Slicer J at 426 [14], and Evans J at 442 [37]. According to the Sentencing Advisory Council Research Paper on Sex Offence Sentencing, April 2013, between 2001 and 2011, 92% of sentences for a single count of rape were immediate custodial sentences. The minimum term for a single count of rape was 12 months' imprisonment and maximum five years' imprisonment. Nothing said by this Court in Baldock v Tasmania [2015] TASCCA 3, an appeal dealing with a sentence for a very serious single instance of rape, suggests error in the length of the sentence now under appeal. On the information available to me there are numerous examples of longer sentences for single instances of rape. The sentencing judge was not bound to any particular range, but the material to which I have just referred gives some indication about whether the sentence he imposed reveals error or misapplication of principle.
Some of the features of more serious examples of the crime of rape were not present in this case. There was little violence over and above the force necessary to commit the rape, no weapon was used, the appellant had no previous convictions for rape or other serious offences of a violent or sexual kind, the victim was neither very old nor very young, was not subject to any other serious form of sexual indignity or perversion, and the rape was not repeated or prolonged. Conversely, there were features of the crime which called for a substantial term of imprisonment. The appellant imposed his will on the complainant, despite her physical resistance and verbal protests, for his sexual gratification. He ran the risk of causing pregnancy and transmitting disease. The crime was committed in the victim's home. The appellant knew that her 6 year old daughter was in bed asleep. That is relevant for two reasons. Firstly, although the child was not directly exposed to the crime, she was exposed to its immediate aftermath and to the longer term effects on her mother. Secondly, knowledge of the presence of her child in the house would undoubtedly have added to the trauma to which the complainant was exposed.
As is invariably the case for victims of rape, the complainant was greatly affected. Her victim impact statement shows that she felt humiliated and powerless. She had great difficulty reliving the event through the police investigation. The stress was greatly exacerbated when she was told that the appellant had herpes. She has since suffered from nightmares and lack of sleep. She already had emotional and psychological difficulties because of family tragedies. She used alcohol as a method of trying to cope with those things and had difficulties with self-harm. After this incident she was admitted to a psychiatric unit a number of times in relation to self-harm and suicidal thoughts. She finished her job a few weeks before the crime but, as a result of the crime, was not able to work again for about seven months.
The appellant was not entitled to the mitigation a plea of guilty would have entailed. A plea of guilty is ordinarily a factor pointing to a reduction in sentence, particularly for sexual crimes. The complainant was not spared from having to give evidence, the consequent additional trauma of having to recall and relive the crime committed against her, and the embarrassment and humiliation of having to give a public account of events and subject herself to cross-examination.
There is an additional factor at work in this case. In my view, the increasing use of internet dating sites emphasises the importance of general deterrence as a sentencing consideration. Although it was not suggested that the appellant planned to rape the complainant before going to her house, he availed himself of the opportunity presented by internet dating to commit the crime. Those who similarly use the opportunity to commit sexual crime must understand that heavy punishment will follow. The appellant took advantage of the complainant's willingness to allow him into her home and abused the trust she extended to him by doing so, and by engaging in some consensual intimate conduct.
The appellant did not submit that, leaving aside the two factors specifically relied upon, the sentence imposed was outside the proper exercise of the sentencing discretion.

The particular factors relied on by the appellant

I return to the two particular factors relied on by the appellant. In written submissions the appellant contended that no weight was given to either factor. The failure to give weight to a material consideration is an error of the first type referred to in House, referred to also in Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 at 339 [58]. It is an assertion of a specific error. It is different from a case in which the complaint is that the sentence is manifestly excessive, and fundamentally changes the function of the appellate court: AB v The Queen [1999] HCA 46, 198 CLR 111 per Hayne J at 159-160 [129]-[130]; Kentwell v The Queen [2014] HCA 37, 252 CLR 601 at 615 [35]. However no specific error is alleged as a ground of appeal and, in oral submissions made to the Court during the hearing, the contention that no weight was given to those factors was not advanced. What is contended is that both factors are relevant and, in determining sentence, insufficient weight must have been given to them. A contention that not enough weight was attributed to a material sentencing consideration favourable to the accused adds nothing to a ground that the sentence is manifestly excessive. It is proper to direct the attention of an appeal court to, or emphasise the importance of, an individual sentencing consideration. However, if the sentence is not manifestly excessive when all factors relevant to sentence are taken into account, then it cannot be said that not enough weight was attributed to the particular factor.
Error is not established. Excess is not plainly apparent. The sentence is not unreasonable or plainly unjust. As I will explain, the appellant did not demonstrate that the two sentencing factors he relies on are, either individually or in combination, of such weight that, when all relevant factors are considered, the sentence imposed is so harsh as to be indicative of error or departure from principle: Griffiths v The Queen (1977) 137 CLR 293 at 310.
I deal first with the contention arising from the appellant's mental illness. The relevance of mental impairment to sentence was reviewed by this Court in Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 at [36]-[42]. It is convenient to set out the passage from the reasons of Porter J, with whom Tennent J agreed, at [36]:
"[36] It is well established that psychiatric illness or impaired mental function is relevant to the sentencing process in a number of ways. Perhaps most commonly, such conditions may substantially lessen moral culpability because of consequential diminished self-control and impaired judgment, or it may be that factors of general deterrence, retribution and denunciation have little weight: Muldrock v The Queen (2011) 244 CLR 120 at 139 [54]; Hurd v The Queen [1988] Tas R 126 at 129, 131. In R v Tsiaras [1996] 1 VR 398 at 400, the court set out five ways in which serious psychiatric illness not amounting to insanity is relevant to the sentencing process. Those principles were reconsidered and restated by Maxwell P, Buchanan and Vincent JJA in R v Verdins (2007) 16 VR 269 at 276. That restatement was adopted in Startup v Tasmania [2010] TASCCA 5, and reads as follows:
'[32] Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:
1   The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2   The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3   Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4   Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5   The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6   Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment'."

There was no doubt that the appellant has a mental disorder or abnormality or impairment of mental function which may have been relevant to sentence: R v Verdins (2007) 16 VR 269 at 271 [5], [8]. However, before the sentencing judge the appellant's counsel expressly disavowed any reliance on the appellant's deficits as being causative of or contributing in any way to his criminal conduct. She did so after having interviewed the appellant's treating psychiatrist at the Tasmanian Mental Health Service, Dr Mohammed Khan. The sentencing judge was informed by counsel of the result of the interview. Dr Khan had been treating the appellant since 2014 but had the records of the appellant's treatment from when he was first seen aged 16. Without medication, which is administered by fortnightly injections which the appellant will require for the remainder of his life, the appellant would exhibit hallucinatory and paranoid ideations. The condition was stable and there was no indication of recent psychotic episodes, which suggested that the medication was effective. In the period leading up to the trial there had been an increase in anxiety and stress experienced by the appellant. Dr Khan attributed this to the criminal proceedings, but said that it had not caused the emergence of symptoms of the illness. It was submitted that, according to Dr Khan, "all people with schizophrenia … show deficits in mood and cognitive functioning and in their social interactions", and that he would "expect to see deficits in day to day functioning from anyone who's treated with such an illness". After counsel for the State sought to clarify whether it was contended on behalf of the appellant that there was a "link to the offending or that it lowers his moral culpability in any way", the following exchange between the sentencing judge and counsel for the appellant occurred:
"HIS HONOUR: … just so everybody's clear about it. That's by way of background, not putting any of these deficits which have been identified had any particular operative effect on the night?
COUNSEL: Yes that's right. I specifically asked Dr Khan as to that and there can be no parallel drawn between his symptoms, any effect it might – that he shows on medication. There's no connection to the crime at the time. He's specifically been asked that and I don't seek to rely on it at all."
The result of the submission made by counsel for the appellant before the sentencing judge is that she, properly, expressly disavowed any reliance on the first, third and fourth of the factors extracted from Verdins. That is, it was not contended that the appellant's mental illness affected his moral culpability or the need for denunciation and general or specific deterrence. Counsel for the appellant in this appeal does not resile from that position. What the appellant now contends, however, is that the fifth, and possibly the sixth, Verdins factors remain relevant and, had they been given proper weight, would bear on the kind of sentence to be imposed and should have resulted in a different sentence. It is submitted that the appellant's mental illness was relevant "in relation to the type and length of sentence" because of the "impact of imprisonment".
In this case the possible effect and impact of imprisonment arising from the appellant's mental illness is not a factor of any weight. It falls far short of being a factor of such weight as to indicate error in the sentence. As was pointed out in Director of Public Prosecutions (Vic) v O'Neill [2015] VSCA 325, 47 VR 395, the fifth and sixth limbs of Verdins may operate where the existing impairment will make prison more onerous, or where prison may exacerbate the mental condition. No such submission was made to the sentencing judge. That was for good reason. Cogent evidence is required to establish the contended effect of the mental condition. The particular effect or impact of the condition must be established. The usual evidence is in the form of expert opinion which sentencing judges should consider with rigour: O'Neill at 415 [78]. In this case, the material which originated from Dr Khan did not support either contention. Such evidence as there was suggested the contrary. The trial process had caused the appellant to become more stressed and anxious, but no re-appearance of symptoms of schizophrenia had emerged. The appellant's condition had been stable for some time. There is every reason to conclude that he will obtain the treatment and medication he requires either in prison, or in the secure mental health facility attached to the prison.
I next deal with the appellant's contention concerning the order made under the Act. The appellant contends that the sentencing judge erred by failing to give enough weight to the punitive effect of the order. Counsel for the respondent conceded that the order is relevant to sentence as a form of extra curial punishment, but submitted that it is a factor of little weight in this case. The respondent's contentions should be accepted.
The Act, s 6(1), requires the making of an order directing that the Registrar under the Act cause the name of a person whom the court sentences for a reportable offence to be placed on the Register and that the offender comply with the reporting obligations under the Act. The power to make the order is directory and not discretionary: Traynor v McCullough [2011] TASSC 41, 218 A Crim R 177, referring to the Acts Interpretation Act 1931, s 10A(1), and S v Tasmania [2007] TASSC 62, 16 Tas R 292. An order must be made unless the court is satisfied that the person does not pose a risk of committing a reportable offence in the future. In this case, the sentencing judge was not so satisfied. Because rape is a class 3 offence under the Act, there was power to determine a reporting period up to 15 years for a single instance of the crime: s 24(2)(b) and Sch 3. His Honour ordered that the appellant's name be placed on the register and that he comply with the requirements under that Act for a period of three years following release.
The Act is, by its long title, an "Act to require certain offenders who commit sexual or certain other serious offences to keep police informed of their whereabouts and other personal details for a period of time (to reduce the likelihood that they will reoffend and to facilitate the investigation of any future offences that they may commit), to enable courts to make orders specifying certain offenders to be reportable offenders, and for related purposes." The object of the Act is protection of the community. The reporting obligations are set out in the Act, Pt 3. For some, the obligations can be relatively onerous and impinge on the liberty of the person made subject to an order. The Act requires an offender to report to the Registrar details of the offender's name, address, age, employment, certain affiliations (especially those relevant to contact with children) and a great many other personal details. After the initial report the details must be reported again at least annually, as well as in the event of any change. Intention to travel outside Tasmania must also be notified. The Registrar may photograph and fingerprint offenders. The statutory provisions enable the identity and whereabouts of reporting offenders to be monitored to reduce the likelihood they will re-offend, and facilitate the investigation and prosecution of any future sexual offences they may commit.
An order made under the Act is not a sentencing order: S v Tasmania per Evans J at 307 [27]. The sentencing orders that may be made by the court are detailed in the Sentencing Act 1997, s 7. A reporting order is not one of them. In contrast to the position in Victoria and New South Wales, the Tasmanian legislation does not prohibit a sentencing court from taking into account for the purposes of sentencing the registration of a person on a community protection register.
A loss or detriment suffered by an offender as a result of having committed a crime may, in some circumstances, properly be taken into account in determining sentence. Such a loss or detriment is sometimes referred to as extra-curial punishment. An example may be injury suffered by an offender in committing a crime, or inflicted on the offender as retribution or revenge, or some type of financial consequence: R v Barci (1994) 76 A Crim R 103; R v Daetz; R v Wilson [2003] NSWCCA 216, 139 A Crim R 398; R v R L P [2009] VSCA 271, 213 A Crim R 461; R v O'Connor [2014] NSWCCA 53, 239 A Crim R 487. However, the weight to be attributed to extra-curial punishment depends on the circumstances of the case, and in some cases it may attract little or no weight: R v Daetz; R v Wilson per James J, with whom Tobias JA and Hulme J agreed, at 411 [62].
Counsel for the appellant referred to a series of cases in which the relevance of registration of an offender under equivalent legislation as extra-curial punishment was considered. In R v KNL [2005] NSWCCA 260, 154 A Crim R 268, the New South Wales Court of Criminal Appeal considered a Crown appeal against a bond imposed on a 19 year old man who pleaded guilty to sexual intercourse with a 12 year old girl, mistakenly believing she was 16. The potential impact of mandatory registration under the Child Protection (Offenders Registration) Act 2000 (NSW) was a factor given considerable weight by the sentencing judge. Latham J, with whom Brownie AJA and Buddin J agreed, said at 277-278 [49]-[50]:
"49 Before leaving this aspect of the matter, I doubt that, in the circumstances of this case, the requirements as to registration under the Offenders Registration Act could be properly characterised as extra-curial punishment entitling the respondent to any mitigation of penalty. The respondent was not, at the time of sentence, or likely in the future to be, pursuing an occupation which gave him access to children. Many pieces of legislation require persons to register their details with police or other public authorities, in the interests of public health and safety, for example, legislation relating to the possession of firearms. The cases which have thus far considered the notion of extra-curial punishment have been restricted to physical and/or financial penalties sustained by offenders, or loss of employment in which the offender was engaged or qualified to be engaged, arising out of the commission of the offence. (See generally R v Daetz: R v Wilson [2003] NSWCCA 216).
50 I do not mean to suggest that there could never be a case where extra-curial punishment might arise from the requirements of the Offenders Registration Act, but this case fell far short of any penal consequence being visited upon the respondent because of a conviction. Even allowing for some regard to the requirements of registration and the potential restriction on employment, that factor deserved very little weight; R v Daetz at par 62."
The issue was discussed by the New South Wales Court of Criminal Appeal again in TMTW v The Queen [2008] NSWCCA 50. That appeal concerned a sentence imposed on a man who had assaulted a young boy in the course of interrogating him about whether he had sexually assaulted the man's 6 year old daughter. The assaults included applying pliers to the victim's penis and scrotum. The crime was one which mandated registration of the offender under the NSW legislation, even though the court found the offender did not pose a risk of future offending of a sexual nature. In the course of her reasons, Simpson J, with whom McLellan CJ at CL and James J agreed, after referring to R v KNL, at [52]-[53], accepted that the registration and reporting regime could amount to extra-curial punishment. Her Honour found that although the burden of reporting was such that it ought not be accorded any weight in the sentencing decision in the circumstances of that case, the stigma of being labelled a sex offender was a relevant, albeit less tangible, consideration and "not entirely irrelevant". The NSW legislation was amended in the same year to remove registration as a relevant sentencing consideration.
The Court of Appeal of the Australian Capital Territory, where no such legislative prohibition exists, concluded that the making of a reporting order is relevant to sentence as a form of extra-curial punishment: R v CV [2013] ACTCA 22, 233 A Crim R 67 at [50]-[54]. In that case a 16 year old boy pleaded guilty to sexual intercourse with a 12 year old girl mistakenly believing she was also 16. Registration under the Crimes (Child Sex Offenders) Act 2005 (ACT) for 7½ years was required if a conviction was recorded. The plurality concluded that the effect of registration and the reporting obligations were relevant to sentence. The court pointed out that "the fact that the Child Sex Offenders Act has a protective, rather than punitive, purpose does not mean that it does not also have a punitive effect on the offender". On the facts of that case, the potential punitive impact on the offender in terms of employment, restrictions on travel and reporting obligations over the term of the order were considerable.
In TMTW v The Queen and R v CV, there was some debate about whether there was a difference between the approach adopted in those cases and the approach adopted in R v KNL. I do not see any such conflict. The reasons of Latham J in KNL reveal that her Honour contemplated that there may be circumstances in which the making of an order was relevant, but there were no such circumstances, at least none of any weight, on the facts of that case. In my view, the principle which emerges from this line of authority is that imposition of the registration and reporting obligations on an offender is relevant to sentence, even though the purpose of the legislation is primarily protective and not punitive, but the weight, if any, to be attributed to it depends on the nature and extent of any actual punitive effect on an offender in the circumstances of each case, judged in the context of the nature and gravity of the offence. I think that this Court should follow that approach. It accords with the comments of Crawford J (as he then was) in W v Tasmania [2007] TASSC 24 at [24], that a sentencing court could take a reporting order into account as a consequence of conviction, but it was ordinarily a factor which should not have much influence on sentence because the object of the legislation was primarily protective rather than punitive. In Director of Public Prosecutions (Acting) v CBF Porter J stated that, when considering whether the sentence under consideration in that appeal was manifestly inadequate, the order under the Community Protection (Offender Reporting) Act "should not be overlooked".
In this case, there was no material put before the sentencing judge from which it can be concluded that the supposed punitive effect of the reporting order is a consequence of conviction of any weight. It was not submitted that the order would impact on the ability of the appellant to, for example, obtain or maintain employment, or travel. It was not submitted that any other reporting obligation arising under the legislation, which will remain in place for three years, will be very onerous in his circumstances. It was not suggested that he would be unduly stigmatised as a result of the order. There is no reason for this Court to conclude that the order will have a punitive impact of any significance, certainly not so as to override considerations of punishment, denunciation and deterrence for a crime of this nature and indicate error in the sentence.

Conclusion and disposition

For those reasons I concluded that the sentence imposed on the appellant was not manifestly excessive, and joined in the order dismissing the appeal.

File No 1230/2016

SAMUEL WILLIAM MURRAY MULHOLLAND
v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BRETT J
14 March 2017

I agree with the reasons for judgment of Pearce J. They accurately reflect my reasons for joining in an order dismissing the appeal.