Police v EO (a pseudonym)

[2022] NSWLC 27

Local Court

New South Wales

Medium Neutral Citation:

Police v EO (a pseudonym) [2022] NSWLC 27

Hearing dates:

16 February 2022

Decision date:

23 February 2022

Jurisdiction:

Criminal

Before:

O’Brien LCM

Decision:

See under Determination

Catchwords:

CRIME — Application for Child Protection Registration Order

Legislation Cited:

Crimes Act 1900 (NSW), ss 35(2), 59(1)

Child Protection (Offenders Registration) Act 2000 (NSW), ss 3AA(1), 3AA(3), 3E

Cases Cited:

O’Neill v Commissioner of Police [2020] NSWSC 1805

Category:

Principal judgment

Parties:

NSW Police (Applicant)
EO (Respondent)

Representation:

Solicitors:
Sergeant Novatin (Applicant)
Mr Hibbard (Respondent)

File Number(s):

2020/00314175

Publication restriction:

In this judgment, the respondent and the victim are referred to by pseudonyms, and information that could lead to the identification of the respondent or the victim has been redacted.
The name of the respondent and the name of the victim are not to be published, nor is any other material that could lead to the identification of the respondent or the victim: s 7 Court Suppression and Non-Publication Orders Act 2010 (NSW).

JUDGMENT

1. EO, the respondent, was convicted in the District Court of New South Wales of recklessly cause grievous bodily harm (DV) contrary to the provisions of section 35(2) of the Crimes Act 1900 (the “Act”). There were two Form 1 offences each of assault occasioning actual bodily harm (DV) contrary to section 59(1) of the Act. The victim in each case was the respondent’s 12 week old daughter, FO.

2. Following his conviction, the respondent was, on 1 October 2019, sentenced to a term of 4 years and 6 months full time custody. Mr Hibbard for the respondent informed the court that the non-parole period is set to expire in July this year.

3. A non-publication order applies to these proceedings and it is for this reason that the respondent and the victim are referred to by pseudonym initials.

4. The prosecution has brought the current application pursuant to the Child Protection (Offenders Registration) Act 2000 (the “CPOR Act”) seeking what is described as a Child Protection Registration Order (CPRO). The application is opposed.

5. I have reduced my reasons to writing so that they are clear for the assistance of both the applicant and the respondent.

History of the proceedings

6. The application is dated 28 September 2020 and appears to have been served upon the respondent whilst in custody the day after. It was first listed for mention at the Local Court Port Kembla on 4 November 2020. On that day the respondent was represented and the matter was adjourned to 2 December 2020 to enable the respondent to obtain legal advice and otherwise consider his position.

7. The matter was again adjourned on the next occasion for seven days because his legal representative had been unable to obtain his instructions.

8. On 9 December 2020 the Court was informed that the application was opposed and, from the written submissions prepared by Mr Kearney, then appearing for the respondent, it would appear that the Court, on that day, adjourned the matter to 10 February 2021 and made directions that the applicant was to file written submissions by 20 January 2021 and the response by 3 February 2021.

9. Mr Kearney posits that the applicant’s submissions had not been filed by 1 February 2021 and, following inquiries made with the applicant, received a brief of evidence two days later which comprised, essentially the matters relevant to the substantive offences – apart from the written application in these proceedings.

10. On 10 February 2021 the application was listed for hearing at Wollongong where it was set down for hearing on 28 August that year. The hearing did not proceed that day and the application was listed for hearing on 16 February of this year. At the same time I made orders for the applicant to serve what was described as a brief by 20 September 2021. I suspect that what was intended was submissions and any material relied upon to support the application. In any event that direction was not complied with.

The Facts

11. The hearing proceeded on 16 February 2022 and my attention was directed to the Statement of Agreed Facts that were tendered in the proceedings before the District Court which form the basis of the factual findings of the respondent’s criminal liability and I do not propose to repeat them in detail here.

12. The respondent and his partner GO were already known to Family and Community Services (FACS) in 2019 before FO was born about concerns with respect to, among other things, drug use. During a visit by the respondent to FACS at Coniston about housing issues, caseworkers observed bruising to the face of FO which was not visible during a home visit by those caseworkers when they had attended the respondent’s home a week earlier.

13. A detailed medical examination was conducted of FO following her removal from the care of the respondent and his partner, GO, the child’s mother, the next day which revealed multiple rib fractures caused by direct impact to the ribs or squeezing of the rib cage, bruising under the right eye and under her left forehead caused by the application of blunt force and a fractured right wrist caused by the respondent forcefully grabbing FO’s arm and forcefully grabbing it at the wrist.

14. The respondent denied responsibility for the injuries sustained by FO but later made admissions to GO which were lawfully recorded using covert means after which he was later arrested.

Issues

15. As I apprehend from the written submissions supplemented by oral submissions made by the legal representatives for the respondent and the oral submissions raised by the applicant at the hearing, the issues which arise for determination by the court are:

1. Does the application properly identify the relevant provisions of the legislation pursuant to which relief claimed is sought?

2. Does the application properly identify the relief sought?

3. Does the application properly address the test set out in s 3AA(1) of the CPOR Act?

4. If so, does the application address the matters to be taken into account set out in s 3AA(3) of the CPOR Act?

First Issue – does the application properly identify the relevant provisions of the legislation pursuant to which the relief claimed is sought?

16. The commentary in the Bench Book is instructive:

1. The Local Court may, on application by the Commissioner of Police, order a person who has been sentenced by a court of NSW in respect of an offence that is not a Class 1 offence or a Class 2 offence (defined in s 3) to comply with the reporting obligations under the Act. An order can only be made if the person poses a risk to the lives or sexual safety of one or more children, or of children generally, and the sentence imposed for the relevant offence was not an order under s 10 Crimes (Sentencing Procedure) Act1999 or s 33(1)(a) Children (Criminal Proceedings) Act1987: s 3E(2).

2. The enquiry regarding the risk under s 3E(2) is constrained by s 3AA. Generally, a conclusion about the existence of a risk should be based on something stronger than a police officer’s speculation or suspicion: O’Neill v Commissioner of Police [2020] NSWSC 1805 at [12].

3. A risk is posed if there is a risk the person will engage in conduct that may constitute a Class 1 or Class 2 offence against or in respect of a child or children: s 3AA(1). The following factors must be taken into account in determining such a risk:

1. the seriousness of each registrable offence committed

2. the person’s age at the time each of those offences was committed

3. each victim’s age at the time the offence/s was committed

4. the seriousness of any other offences committed by the person

5. the impact on the person if the order is made compared with the likelihood the person may commit a registrable offence

6. any other matter the court considers relevant: s 3AA(3).

4. Where the person has not previously been convicted of any offence relevant to child safety, substantial evidence is required before an order should be made: O’Neill (supra) at [6] – [7]. Unless the case involves past convictions for offences of a sexual or violent nature against children, or proof of significant, unequivocal past misconduct towards children, making a decision as to the level of risk may be difficult without a report from a psychologist or psychiatrist: [6] – [7].

17. The application is, with great respect to the draftsperson, poorly drafted in that it fails to:

1. identify the section of the CPORAct pursuant to which the relief is sought using the symbol “?” instead of the relevant section;

2. identify the orders sought; and

3. specify the grounds upon which the application is made.

18. In his written submissions, Mr Kearney assumes that the application is brought pursuant to s 3E of the CPOR Act. The bench papers record a handwritten addition of 3E where that section should appear and I can only assume that the application was amended by consent although that is not explicitly stated on the papers and I was otherwise not addressed about that issue. I will however proceed on that basis.

Second Issue – does the application properly address the relief sought?

19. As observed by the court in O’Neill (supra) at [19]:

“The purported formulation of an "Order Sought" in the document filed did not actually formulate an order at all and use of the heading of Pt 2A of the Act, 'Child Protection Registration Orders', does not convert the document filed into a s 3E application”.

20. In the application filed in court the following words appear after the heading “Orders sought”:

“Child Protection Registration Order”

21. In my view and again with respect to the author of the document, this description fails to satisfactorily describe the relief sought and is otherwise on its face a meaningless order.

Third Issue – does the application properly address the test set out in section 3AA of the CPOR Act?

22. Attached to the application is a document purporting to set out the grounds for the application but which in fact appears to be a history of the matter dealing with initial inquiries and the subsequent investigation and as I discern from the document an implicit invitation for the Court to determine for itself what the applicant relies upon as the grounds for the relief sought. It is, in my view, an unsatisfactory way in which to particularise the grounds relied upon to found the application.

23. Mr Kearney submitted that the application failed to meet the test identified in s 3AA(1) to which reference is made in paragraph 16(c) of this judgment. He observed that the material relied upon was simply a replication of the material relevant to the substantial offences for which the respondent was convicted and sentenced. He submitted that the CPOR Act requires, in this case, (noting that these are not offences which automatically trigger the reporting obligations created by the relevant legislation) the applicant to do more than simply refer to the fact that the respondent was convicted of a certain offence. Whilst a prior conviction for an offence of violence against his daughter is a relevant factor (see below) that submission in my view falls on fertile ground.

Fourth Issue – does the application properly address the matters to be taken into account set out in section 3AA(3) of the CPOR Act?

24. As was observed in O’Neill (supra):

“Section 3AA makes it clear the enquiry under s 3E(2)(a) about whether the person poses a risk to children is not at large but is constrained and directed by the statute. It shows a conclusion about the existence of a risk cannot be drawn lightly. The fact three out of six mandatory considerations (in s 3AA(3)(a), (b) and (c)) are directed to cases where the respondent has been convicted of an offence against a child or children, indicates that, in other cases, the contention a respondent is a threat to children would have to be based on something stronger than a police officer's speculation or suspicion.”

25. Clearly, the respondent has been convicted of an offence involving violent conduct towards a child, in this instance his daughter – aged 12 weeks at the time of his offending conduct.

26. It was submitted by Mr Hibbard at the hearing that the effect of an order made would require reporting for 8 years. It was submitted, for the purposes ostensibly of s 3AA(3)(e) and (f), that FO is currently protected by an Apprehended Domestic Violence Order and that the respondent will be subject to supervision on parole upon his release from imprisonment all of which would militate against the necessity of an order (in what terms is not clear) being made against the respondent.

27. The application in its present form does not specifically address the factors set out in s 3AA(3) and relies upon a reading of the brief of evidence prepared for the charges which have now been dealt with to finality and for which the respondent is serving a sentence of imprisonment. The Court it would seem is being asked to draw the necessary inference that he poses the risk referred to in s 3AA(1) from the fact that the respondent was convicted of an offence for violence against his daughter then 12 weeks of age when in his care.

28. Taking each of the subsections of s 3AA(3) in turn:

1. it is clear that the offending conduct is serious;

2. the respondent was 20 years old at the time of the offending;

3. the victim was 12 weeks old at the time of the offending;

4. the other Form 1 offences were also serious offences;

5. the impact of an order (although the terms of such an order is not clear from the wording employed in the application) made under the legislation would impose reporting obligations for, it was submitted, an 8 year period - in circumstances where the respondent, upon his release, will be the subject of supervision on parole for some time and the victim has the protection of an Apprehended Domestic Violence Order;

6. there is otherwise no evidence before the court with respect to the question of the likelihood of the respondent offending in a similar way in the future.

Determination

29. I am not satisfied on the material which has been brought to my attention that it is clear what the terms are for the order sought nor whether the grounds exist for the making of any such order under the CPOR Act nor whether it is appropriate to do so.

30. Accordingly, the application is refused.

Michael O’Brien LCM

Wollongong Local Court

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Decision last updated: 20 December 2023