Newson v Police - [2015] SASC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NEWSON v POLICE
[2015] SASC 105
Judgment of The Honourable Justice Sulan
28 July 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES
Appeal against sentence. Appellant pleaded guilty to four counts of failing to comply with his reporting obligations without reasonable excuse while being a registrable offender under the Child Sex Offenders Registration Act 2006 (SA). The Magistrate imposed a sentence of eight weeks' imprisonment, reduced from 13 weeks, suspended upon entering into a good behaviour bond for 12 months. Counsel for the appellant contended that the sentence imposed was manifestly excessive and that the Magistrate failed to consider whether a non-custodial sentence was appropriate as required under s 11 of the Criminal Law (Sentencing) Act 1988 (SA). Counsel for the respondent submitted that no error can be demonstrated and that the Magistrate had regard to the various reports, submissions from counsel and relevant circumstances in arriving at a sentence that is within the appropriate range.
The Magistrate sufficiently considered the circumstances of offending and the appellant's personal circumstances. The sentence imposed was not manifestly excessive.
Appeal dismissed.
Child Sex Offenders Registration Act 2006 (SA) s 13(1), s 34, s 44(1); Criminal Law (Sentencing) Act 1988 (SA) s 11; Telecommunications Act 1977 (Cth), referred to.
R v Manunta (1989) 54 SASR 17, considered.

NEWSON v POLICE
[2015] SASC 105
Magistrates Appeal: Criminal

SULAN J: This is an appeal against sentence. The appellant, Richard David Newson, pleaded guilty to four counts of failing to comply with his reporting obligations without reasonable excuse while being a registrable offender under the Child Sex Offenders Registration Act 2006 (SA) (“the Act”).[1] I refer to the obligations as “the ANCOR obligations”. On 1 April 2015 the appellant was sentenced to a single sentence of 13 weeks’ imprisonment, reduced to eight weeks on account of his guilty pleas, suspended upon him entering into a good behaviour bond for 12 months.
[1] Section 44(1).
The appellant complains that the sentence was manifestly excessive and that the Magistrate erred in giving undue weight to aggravating factors and giving inadequate weight to mitigating circumstances relating to the appellant’s offending. Further grounds of appeal contend that the Magistrate wrongly concluded that the appellant did not genuinely accept the seriousness of his previous criminal conduct, and did not recognise the necessity for compliance with the ANCOR obligations. It is contended that the Magistrate was in error in rejecting a psychiatric opinion that the appellant was an extremely low risk of child sex offending, and in finding that there was a significant risk of further breaches of his reporting obligations.
The Act
On 31 July 2006, during the second reading speech, the Attorney‑General stated that the object of the Act is to protect children from persons who may have a propensity to commit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Newson v Police

Details

AGLC: Newson v Police [2015] SASC 105
Case: [2015] SASC 105
Decision Date: 28 July 2015

CaseChat Overview and Summary

Newson appealed against his sentence for breaches of his obligations under the Sex Offender Registration Act 2004 (SA). The appellant had previously been convicted of sexual offences and was required to comply with various reporting obligations under the Act. He was required to report the use of any electronic communication services, including mobile phones and internet services. The appellant had three mobile phones which he had not reported to the authorities. He was also found to have used these phones to access dating sites. The appellant was charged with failing to comply with his reporting obligations under the Act. The appellant was convicted by a Magistrate in the Magistrates Court and was sentenced to imprisonment. The appellant appealed the sentence, contending that it was manifestly excessive and plainly wrong. The appeal was dismissed. The court found that the appellant had deliberately breached his reporting obligations and that the Magistrate had given proper consideration to the appellant’s circumstances and the seriousness of the offending. The sentence imposed was appropriate to ensure the protection of children and to deter the appellant from further breaches of the Act. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The Act provides a comprehensive list of reporting requirements. Failure to comply with the reporting requirements carries penalties of imprisonment up to a maximum of five years for the more serious breaches of the reporting obligations where the offender has been in contact with children.Background The appellant was 37 years old at the time of the offending. He lives with his parents. He has been treated by psychiatrists and psychologists over many years. The appellant has reduced cognitive abilities, and his level of understanding of the nuances of society is extremely limited. He has been diagnosed with Attention Deficit Disorder. He was sexually abused as a child. Partly as a consequence of that abuse and his low intellectual and cognitive functioning, the appellant has had difficulties with his sexual interaction with others. He recognises that he requires ongoing counselling to assist him to deal with his problems. He is continuing to undertake that counselling. The appellant has been convicted of a number of sexual offences. In October 1994, the appellant was convicted in the Magistrates Court of four counts of indecent assault. The appellant engaged in acts of fellatio with two boys aged seven and nine years. Various medical reports were provided to the Court at that time. The appellant was described as naïve, immature and vulnerable. He was sentenced to 12 months’ imprisonment, suspended upon entering a good behaviour bond for 18 months. On 30 October 2001, the appellant was convicted by a jury of two counts of rape. Both counts occurred on 9 May 2000 when the appellant performed an act of fellatio upon a male under the age of 17 years, and caused that same victim to perform an act of fellatio upon him without consent. The victim was walking home from the railway station in Oaklands Park at around 10.20 pm. The appellant was driving his car in the area and stopped to accost and threaten the victim. The victim did not know the appellant. Numerous reports were presented to the Judge which confirmed that the appellant continued to suffer from significant physical, mental and emotional problems. The appellant was sentenced to four years’ imprisonment, with a non‑parole period of eight months. The offending was too serious to justify suspension of the sentence. Since that offending, the appellant has been convicted of driving with excess blood alcohol in 2008 and forging a prescription to obtain drugs in 2010. The appellant became a registered child sex offender consequent upon his conviction for two counts of rape in 2001. The appellant’s reporting obligations to the Australian National Child Sex Offender’s Register (ANCOR) requires the disclosure of details of any carriage service used or intended to be used by him. The appellant was required to disclose email addresses, passwords, internet user names, instant messaging user names, chat room user names or any other access code, and to provide any user name or identity used or intended to be used by the person through the internet or other electronic communication service.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Counsel for the respondent submitted that no error can be identified in the Magistrate’s remarks and that the sentence imposed was within an appropriate range and therefore was not manifestly excessive or plainly wrong. Counsel submitted that the Magistrate had regard to all the relevant material and the submissions of counsel. Counsel argued that it was open to the Magistrate to conclude that the appellant’s resentment of his inclusion on the ANCOR register was the explanation for the offending. Consideration The primary purpose of the Act and the reason for the extensive reporting requirements provided in the Act is to ensure the protection of children from sexual abuse. In order for the effective compliance with the objects of the Act, persons who are registered must strictly comply with the reporting requirements. The obligations to report ensure that police are able to monitor the activities of sex offenders. The reporting requirement also should have the effect of deterring offenders from future illegal conduct. The gravamen of the subject offences is the failure to comply with the obligation to report. As with any offending, there are degrees of seriousness. An offender may commit a relatively minor breach of the Act if the offender inadvertently fails to report, for example, the make or model of a motor vehicle owned by the offender. An offender may fail to report a change of address within a timely manner which the offender subsequently reports. This was not a case of a minor or insignificant breach of the Act. The appellant had in his possession three mobile phones, none of which were notified to ANCOR. Further, when examined, the majority of the mobile phone applications which required unique user names and passwords to access were related to dating sites. The appellant was aware of his obligations, but chose not to comply with them. Amongst the reasons he gave included his refusal to accept that he should be on the ANCOR register. The appellant gave various explanations for his possession of the phones, including his resentment to being on the ANCOR register and his belief that he should not be on it. His conduct was deliberate and continuous. The Magistrate gave consideration to all relevant matters. In sentencing the appellant, the Magistrate concluded that there was a continued risk of further reporting breaches, and that the sentence she imposed was to act as a personal deterrent to the appellant and an incentive to him to maintain absolute diligence about compliance with reporting conditions in the future. The finding was open to the Magistrate. The Magistrate had regard to the personal circumstances of the appellant and to the fact that he has continued receiving counselling and appeared to have recognised the seriousness of his offending. The offending was sufficiently serious to conclude that a sentence of imprisonment was appropriate. I reject the contention that the Magistrate failed to comply with s 11 of the Sentencing Act. This was a serious breach of the appellant’s reporting obligations.