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 sexual offences against children, requiring them to keep the Commissioner of Police informed of their personal details.
Section 13(1) of the Act specifies the personal details which must be notified to the Commissioner. They include details of any carriage services (within the meaning of the Telecommunications Act 1997 (Cth)) used or intended to be used by the person; details of any internet service provider or provider of a carriage service used or intended to be used by the person; details of the type of any internet connections used, or intended to be used, by the person, including whether the connection is a wireless, broadband, ADSL or dial-up connection; details of any email addresses, passwords, internet user names, instant messaging user names, chat room user names or any other access code, user name or identity used, or intended to be used by the person through the internet or other electronic communication service.[2]
[2] Child Sex Offenders Registration Act 2006 (SA) ss 13(1)(m), (n), (o) and (p).
Section 44(1) of the Act provides that a person who fails to comply with any of his reporting obligations without a reasonable excuse commits an offence, the maximum penalty for which is $10,000 or imprisonment for two years.
Section 34 of the Act defines the period for which an offender is required to remain on the register. The period is determined by the seriousness of the offence and the offender’s previous record for sexual offences against children.
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.
On 19 September 2013 police searched the appellant’s home and seized three mobile phones which are the subject of counts one to three. Count four relates to 25 applications contained in the phones and secured by log-ins and passwords. The majority of the applications were dating sites. The appellant admitted that he failed to disclose the phones and the application details.
The appellant applied to the treatment intervention program court but was deemed ineligible for the program due to the circumstances of offending and his unwillingness to accept the he was required to comply with the ANCOR obligations. Since pleading guilty the appellant commenced psychological counselling pursuant to a mental health care plan.
The Magistrate’s sentencing remarks
The appellant offered multiple explanations for why he had failed to disclose his possession of the phones. He told police that he had loaned them to friends and did not report the phones out of embarrassment. During the treatment intervention program assessment the appellant stated he bought the phones impulsively and that he had them for work purposes because he was a team leader of an energy sales team. The Magistrate rejected the appellant’s explanations. The Magistrate remarked:
You stated that you resented the fact that you were on the ANCOR register and didn’t believe you should be on it and that this was probably the reason why you didn’t report it. In my view this latter statement reflects the true situation.
The Magistrate had regard to a pre-sentence report. Her Honour commented:
However the writer has expressed the view that you minimise responsibility for your actions by stating that you were not aware of ANCOR conditions and that you have to inform them about every single electronic device which you have in your possession. Your various statements, notwithstanding the allowances which I make for your compromise, give rise to a genuine concern about your insight, willingness and capacity to abide by your continuing ANCOR reporting conditions. Notwithstanding submissions from counsel and your attendance at recent counselling sessions, it does tend to give rise to a concern that you do not genuinely accept the seriousness of your previous criminal conduct and you do not recognise the necessity for compliance with the ANCOR obligations.
Her Honour had regard to counsel’s submissions. She observed:
The court has been urged to regard your offending as at the lower end of the scale of seriousness. Counsel advocates that a good behaviour bond be imposed, without supervision, taking account of recent reports which are said to demonstrate a change in your attitude. You are still a relatively young person at age 38. Mr Mancini further argues that a term of imprisonment is not warranted for this offending emphasising that there was no victim of your offences. That however, in my view, oversimplifies the matter and under values the importance of the system designed to protect children from predatory sexual advances.
The Magistrate referred to the submission that the appellant is a low risk to the community in light of his lack of offending over a long period and his attendance at counselling sessions. Her Honour referred to a report prepared by the appellants’ treating psychiatrist. She said:
A psychiatric report was prepared by Dr Lavender in March this year. He has been treating you for a number of mental health issues since 1992. His summary of your various challenges partly explains your past offending in that you were said to suffer emotional immaturity, impulsivity and fragile sense of self. You struggle with stress and continue to make poor decisions. You have supportive parents who are said to be frustrated and concerned about your long standing difficulties. You and they have struggled to accept your homosexuality. An additional more recent concern is said to be your use of methamphetamines for which you have sought counselling. Clearly this has the potential to exacerbate some features of your behaviour and may impact on your capacity to comply with your reporting conditions if you do continue to use those substances. I note that you have given Dr Lavender the impression that you are very mindful of your obligations under the ANCOR scheme and have adopted policies to avoid breaches. Whilst you may have stated as much to Dr Lavender, I have serious reservations about that nevertheless. Dr Lavender expressed a view that you represented an extremely low to negligible risk to potential offending with males or females under the age of 18 in the future. Again given your expressions of denial over the past eight months or so from time to time concerning the original offending, I am sceptical of this view as well.
The Magistrate gave the appellant credit for making progress in a mental health care plan. The appellant has sought and continues to engage in psychological counselling. Her Honour had regard to letters of support and letters from the appellant and stated:
You indicate that you accept now that you must report all sorts of things to ANCOR despite the inconvenience. However you continue to believe, so you say, that there is no real need for you to be on the ANCOR register and to report.
The Magistrate had regard to the risk of the appellant offending in the future. She stated:
I have thought very carefully about an appropriate sentence in this case and I bear in mind that there has been a long period of time which has passed since you were dealt with for the substantive very serious charges of rape. I have formed the view that a custodial penalty is called for but it will be a very short one. In my view such a penalty is called for to take account of competing factors one of which is an assessment of the likelihood of further reporting breaches. Notwithstanding the submissions put to me today on the available material I regard the risk of further reporting breaches still to remain significant. I hope that the risk will diminish in time and I am also hopeful that the sentence I impose will act as an incentive to you to be absolutely diligent about compliance with your reporting conditions in the future.
Her Honour suspended the sentence of eight weeks’ imprisonment subject to the appellant entering into a bond for 12 months.
Submissions of counsel
Counsel for the appellant submitted that the Magistrate failed to identify the reason for not imposing a penalty other than imprisonment. Counsel submitted that the Magistrate failed to comply with the requirements of s 11 of the Criminal Law (Sentencing) Act 1988 (SA). Section 11 provides:
11—Imprisonment not to be imposed except in certain circumstances
(1)     A sentence of imprisonment may only be imposed—
(a)     if, in the opinion of the court—
(i)    the defendant has shown a tendency to violence towards   other         persons; or
(ii)     the defendant is likely to commit a serious offence if allowed   to go at large; or
(iii)    the defendant has previously been convicted of an offence                   punishable by imprisonment;     or
(iv)    any other sentence would be inappropriate, having regard to   the gravity or circumstances of the offence; or
(b)     if a sentence of imprisonment is necessary to give proper effect to   the policies of the criminal law stated in section 10.
(2)     This section does not apply to a sentence of imprisonment imposed for           the enforcement of sentence.
Counsel submitted that, in the circumstances of this offence, the Magistrate was in error in concluding that a sentence other than imprisonment would be inappropriate. Counsel submitted that the Magistrate was required to have regard to all the circumstances of the offending and the personal circumstances of the appellant and then step back, consider all the sentencing options and then determine whether imprisonment was the only appropriate option. He submitted that when all the relevant circumstances are considered in this case, the Magistrate was in error in concluding that any other sentence would be inappropriate. He submitted that the Magistrate failed to give reasons for concluding that s 11(1)(iv) did not apply.
In R v Manunta,[3] King CJ, with whom Legoe and Bollen JJ agreed, discussed s 11(1) of the Criminal Law (Sentencing) Act 1988 (SA). He observed:
Apart from that, the Court in determining pursuant to par (d) whether any sentence other than imprisonment would be inappropriate having regard to the gravity or circumstances of the offence, is required, in my opinion, to give the usual weight to the traditional purposes of sentencing, namely the observation of a just proportion between the seriousness of the offending and the punishment, general deterrence, personal deterrence and rehabilitation.
[3] (1989) 54 SASR 17 at 24.
In the present case, having regard to the circumstances of this offending, which include that the appellant chose to ignore his reporting obligations because he believed he should not be a registered person, and having regard to the number and continuous breaches of the Act, I am of the view that counsel’s contention must be rejected. In my view, this was a case in which a sentence of imprisonment was an appropriate sentence. The Magistrate was correct in determining that, in the circumstances of this case, another sentence, other than imprisonment, was inappropriate.
That then brings me to the specific complaints.
Counsel contends that imposing a custodial sentence was manifestly excessive given the appellant’s personal circumstances. He submitted that the Magistrate erred in finding that the appellant did not accept the seriousness of previous offending and that he did not acknowledge the requirement to comply with the ANCOR obligations. Counsel further contended that the Magistrate erred in giving too much weight to the purpose of the ANCOR system and in rejecting the appellant’s view about reporting obligations. He submitted that a sentence of imprisonment for breaching reporting obligations under the Act should be reserved for more serious offences which involve potential harm to children.
Counsel submitted that the Magistrate’s observations that there was a concern that the appellant did not genuinely accept the seriousness of his previous criminal conduct and that he did not recognise the necessity of compliance with the ANCOR obligations was an error, as there was evidence before the Magistrate from the appellant’s treating psychiatrist that he did have sufficient insight into his conduct and that, in the opinion of his psychiatrist, he was a very low risk of reoffending.
The Magistrate gave due consideration to the report of the appellant’s psychologist and due consideration to the submissions of counsel. It was open to her to conclude as she did, given the circumstances of the offending and the appellant’s previous expressions that he did not consider he should be subject to reporting requirements, that there are genuine concerns about the appellant possibly reoffending.
Counsel submitted that the Magistrate erred in rejecting the opinion of the appellant’s psychiatrist that there is an extremely low risk of the appellant committing child sex offences in the future and in her concluding that there is a significant risk of further breaches by the appellant of his ANCOR obligations. The Magistrate was not compelled to accept the opinion of the psychiatrist. The appellant, by his conduct and by his previous statements, suggested that he did not comprehend the seriousness of his conduct. Further, he consciously ignored his ANCOR obligations because he considered that he should not be registered as a sex offender.
Counsel submitted that, at the time the appellant came to be sentenced, he posed a much less significant risk than at the time he failed to notify the Commissioner of his possession of the three mobile phones. Counsel submitted that, by pleading guilty and expressing his contrition and undertaking further counselling and treatment, he had done everything that was available to him to demonstrate that he understood the severity of his conduct. He had taken steps to ensure no further breaches would occur.

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.
In my view, it cannot be said that a sentence of imprisonment was plainly unjust. No error in approach has been demonstrated.
I would dismiss the appeal.