R v KF

[2025] NSWDC 457

District Court

New South Wales

Medium Neutral Citation:

R v KF [2025] NSWDC 457

Hearing dates:

3 June 2025, 12 June 2025, 17 October 2025

Date of orders:

7 November 2025

Decision date:

07 November 2025

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

(1)   The order will be made as sought by the Crown. The parties are asked to prepare an appropriate short minute of order in line with these reasons

Catchwords:

MENTAL HEALTH — Criminal proceedings — Special hearing

Legislation Cited:

Child Protection (Offender’s Registration) Act 2000

Children (Criminal Proceedings) Act 1987

Crimes Act (Commonwealth)

Crimes (Sentencing Procedure) Act 1999

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Pre-Trial Diversion of Offenders Act 1985

Cases Cited:

Kelly v The Queen [2004] 218 CLR 216

Taylor v Commissioner of Police NSW [2024] NSWCA 285

Category:

Consequential orders

Parties:

Director of Public Prosecutions (Crown)
KF (Accused)

Representation:

Counsel:
Mr M. Heffernan for the Crown
Mr B. Cochrane for the Accused

Solicitors:
Director of Public Prosecutions for the Crown
James Fuggle Rummery Solicitors for the Accused

File Number(s):

2023166135

JUDGMENT

Introduction

1. On 5 December 2024 following a fitness hearing KF (“the defendant”) was found to be unfit to be tried in respect of numerous charges of sexual offending. On 12 June 2025, following a special hearing special verdicts were entered pursuant to s59(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (“the Mental Health Act”), that the acts comprising counts 1-6 inclusive and 8 set out in indictment 22.2 are proven, “but the defendant is not criminally responsible”. Upon the return of such a verdict the Court may make one or more of the orders set out in s33(1) of the Mental Health Act.

2. On 17 October 2025, pursuant to section 33(1)(c), orders were made that the defendant be released on certain conditions. In addition to those conditions, the Crown sought an order under s3C(1)(a) of the Child Protection (Offender’s Registration) Act 2000 (“the CPOR Act”). The defendant resists such an order being made on the basis that the orders made under s33(1)(c) are not a sentence, and that as s3C(1)(a) requires there to be a “sentence” to be enlivened, there is no basis for the making of the order.

The issue

3. Section 3C relevantly is in the following terms:

(1) A court (the "sentencing court" ) that sentences a person for a registrable offence must make an order (a "registrable person order" ) that the person is a registrable person if--

(a) for a person who was an adult when the registrable offence was committed--the sentencing court imposes a sentence for the registrable offence, other than a no conviction order, or

(b) for a person who was a child when the registrable offence was committed--

(i) the sentencing court imposes a sentence for the registrable offence, other than a no conviction order, and

(ii) the prosecution requests the registrable person order be made, and

(iii) the sentencing court is satisfied the registrable person order is necessary because the person poses a risk to the lives or sexual safety of one or more children or of children generally………

"no conviction order" means an order under--

(a) the Crimes (Sentencing Procedure) Act 1999 , section 10, or

(b) the Children (Criminal Proceedings) Act 1987 , section 33(1)(a).

4. A registrable offence is defined to mean a class 1 or class 2 offence. The parties agree the offences in question are registrable offences. The parties recognise that the issue is whether the defendant comes within section 3C as a result of the orders that have been made. The parties express the issue slightly differently. The Crown poses the question as whether “an order for a person’s release, conditionally or unconditionally under s33(1) of the Mental Health Act constitutes a sentence for the purpose of s3C of the CPOR Act”. The defendant says the question for determination is whether or not the orders made in this case constitute a sentence for the purpose of the definition of that term contained in s2B of the CPOR Act. The question posed by the Crown is the more accurate statement of the issue, though it is seemingly posed based on all the words of s33(1)(c), whereas the question on the facts of this case is limited to a conditional release. The question posed by the defendant may tend to shift the focus of the issue because the definition in s2B is inclusive, something that the defendant recognises. It is not a question of satisfying the definition; as with any inclusive provision, what may constitute a sentence may be something other than what is set out in the inclusive provision. That is not to disregard the point that the definition will assist in determining what other orders, actions or undertakings may relevantly be a sentence.

Definitions and Taylor

5. This approach to the definitions section of the CPOR Act is consistent with what was said in a case referred to by the parties of Taylor v Commissioner of Police NSW [2024] NSWCA 285. That case was considering the definitions of the CPOR Act, and in particular the meaning of “sentence”. The judgment shows that there has been some amendment to the CPOR Act for the definition of “sentence” was contained in section 3 as opposed to section 2B, though the actual definition itself is in the same terms. Although considering the meaning of “sentence”, the case considers the question in light of Commonwealth legislation and the effect of subsection (e) of the definition of sentence and so is not precisely on point. It does however provide assistance. In particular at [14] and in reference to the decision of the primary judge which was seemingly accepted it had been said of the definition of “sentence” that subsections (a) to (d) “Provide illustrations of orders and undertakings under New South Wales law that may not be “sentences” in the ordinary meaning of that word but are equivalent in the sense of being other options available to a court when a person had been found to have committed an offence”. I would note at the outset that that would seem to be an apt description of a conditional release under section 33(1).

6. At [17] it was emphasised that sub sections (a)-(d) “are only examples and that the definition in section 3 (now 2B) is not exhaustive”. Again at [19], albeit with reference to the Commonwealth legislation, it was said of the definition of sentence “the definition is nonexhaustive and may therefore extend to types of orders or undertakings not specifically identified but sufficiently similar to the examples identified”.

7. At [20] of Taylor reference was made to the High Court decision of Kelly v The Queen [2004] 218 CLR 216 at [84] and [103]. It was said that definition clauses “are no more than an aid to the construction of the statute and do not operate in any other way”. It was further noted from Kelly that the function of the definition is not to enact substantive law but is to aid in construing the statute. McHugh J said “nothing is more likely to defeat the intention of the legislature than to give a definition a narrow literal meaning and then use that meaning to negate the evident policy or purpose of a substantial enactment”. The proper approach was said to be to read the words of the definition into the substantive enactment and then construe the substantive enactment in its extended or confined sentence in its context and bearing in mind its purpose and the mischief that it was designed to overcome.

8. Part of the issue in Taylor concerned section 20(1)(a) of the Commonwealth Crimes Act which provides for the conditional release of convicted offenders and was held to be similar in operation to section 9 of the NSW Crimes (Sentencing Procedure) Act 1999 (CSPA). It was held that a section 9 outcome would render the defendant a registrable person, and thus that provision and the Commonwealth provision were equivalent, so that the s20(1)(a) result was caught by subsection (e) of the definition of sentence and the offender was registrable. More to the point however was at [24] of Taylor which set out a hierarchy of outcomes in respect of a person found guilty of a registrable offence. It was noted that section 10A of the CSPA is expressly included as a sentence by the definition section. The next part of the hierarchy was described as follows:

(3) The court proceeds to conviction and imposes conditions on the offender’s release (CSP Act, s 9(1)(a)). Although this outcome is not explicitly provided for in the definition of “sentence”, it would be incongruent with the above if a person who is convicted but not subject to additional conditions is treated more harshly than a person who is convicted subject to conditions. As such, the offender will be a “registrable person” under s 3A(1) of the CPOR Act.

9. By that same reasoning, it would be incongruent if a person found to have committed the acts constituting the offence, and released on conditions, was treated less harshly than a person released without conditions.

10. The last point made in Taylor was to point out that on the appellant’s argument the protective objects of the CPOR Act would be defeated. This was because offenders convicted with no penalty under section 10A of the CSPA would be registrable persons but offenders convicted and placed on a conditional release order which is more serious than a section 10A order would not. This point serves to emphasise the purpose and protective nature of the legislation. It should not be forgotten that the conduct of the defendant that has been found to have occurred in this case included sexual intercourse with a child. That there may be a need for protection is self-evident.

What is a “sentence” for the purposes of s3C CPOR Act.

11. Section 2B of the CPOR relevantly provides as follows in relation to “sentence”:

"sentence" includes the following--

(a) any order under section 65(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 that causes a person to be kept in custody or an order of detention under section 33(1) or 61(2) of that Act,

(b) any order under section 33 (1) of the Children (Criminal Proceedings) Act 1987,

(c) any action taken under section 10A of the Crimes (Sentencing Procedure) Act 1999,

(d) any undertaking under section 23 of the Pre-Trial Diversion of Offenders Act 1985 ,

(e) any sentence or equivalent order or undertaking imposed under the laws of a foreign jurisdiction.

12. The definition of “sentence” is inclusive and not exhaustive. The section makes clear that certain types of outcomes fall within the definition of sentence.

13. In Taylor at [13] the ordinary meaning of “sentence” in the context of the criminal law was considered, at least as that word is used in paragraph (e) of the definition. It was said, at [13] “the ordinary meaning of that word in the context of the criminal law… an order that definitively disposes of the consequences of conviction or a definitive decision on the punishment or absence of it which is to be the consequence of conviction”, citations omitted.

14. I would note a helpful definition of “sentence” in the CSPA. By section 3 CSPA, sentence when used as a noun, means the penalty imposed for an offence.

15. Subsection (a) of the definition in s2B CPOR Act makes plain that orders resulting in a person being in custody or detention under section 65(2), section 33(1) or section 61(2) of the Mental Health Act fall within the definition of “sentence”. Section 65(2) and section 61(2) of the Mental Health Act are in division 3 of part 4 of that Act which deals with special hearings. Section 65(1) requires the court to refer the defendant to the Mental Health Tribunal if the court nominates a limiting term. The expression limiting term is found in section 63 of the Mental Health Act. It is a term the court must nominate where the court would have imposed a sentence of imprisonment for the offence if the special hearing had been an ordinary trial and is the best estimate of the sentence the court would have imposed. Plainly given the process involved with section 65 and section 63 it may be arguable that as the limiting term is nominated followed by a referral to the Mental Health Tribunal that it may be something short of a sentence of imprisonment or perhaps any penalty at all. The definition of the CPOR Act makes clear that such an outcome falls within the definition of sentence so that the defendant is a registrable person. Furthermore, the nomination of a limiting term may follow a verdict of on the limited evidence available the defendant committed the offence charged. By s62 it expressly does not constitute a basis in law for a conviction. In the present case orders have been made following a special verdict, that is, a conclusion to the hearing that is not a conviction, and yet with the consequence of the making of orders and the imposition of conditions. This strongly supports the view that the orders under s33(1) are, for the purposes of s3C of the CPOR Act, a sentence.

16. Section 61(2) of the Mental Health Act provides that the court may make any order or take any action in respect of the defendant after a special verdict of act proven but not criminally responsible is reached as it could on reaching the same verdict under Part 3. In other words if the special verdict is reached at a special hearing then after the special verdict is reached the same actions may be taken as if it had been an “ordinary” trial. The last sentence of subsection (a) of the definition includes any order of detention under section 61(2). As with the provision concerning section 65 the purpose would most likely seem to be to ensure that although the proceeding was a special hearing, orders made as a consequence which would ordinarily be considered to be a sentence if made in an ordinary hearing are to be treated as a sentence.

17. The comments just made equally apply to the reference in the definitions to any order for detention made under section 33(1) which is of course the section under which the orders in this case have been made. That section applies to both special hearings and ordinary hearings. It is a verdict finding that a person is not criminally responsible. Again it may be seen that in those circumstances some doubt might arise as to whether the orders made following that are a “sentence” given that it is a special verdict where the defendant is not held criminally responsible. The definition makes clear this is not so. Section 33(1) sets out the types of orders that can be made; the definition in s2B of the CPOR Act refers to two of them which refer to custody or detention; it is the following subsection that refers to a release on condition. The definition as set out at subsection (a) when viewed against the other definition provisions which include as a sentence a s10A CSPA outcome, together with the purpose of the Act, catches Orders made under s33(1)(a), (b) and (c). Just whether the orders made under (d) are caught would need to be decided when the order to be made was known.

18. Subsection (b) of the definition refers to section 33(1) of the Children (Criminal Proceedings) Act 1987. By section 3C such an order is a no conviction order so that section 3C does not apply to such orders. In other words such an order is a sentence for the purpose of the definitions of the CPOR Act generally, but it is expressly excluded as from the operation of section 3C by section 3C itself.

19. Subsection (c) of the definition includes as a sentence action taken under section 10A of the CSPA. In other words where there is a conviction recorded but no other penalty imposed the person is registrable. That is plainly a reference to a non-custodial outcome. It supports the view expressed at [16] and [17] above.

20. Subsection (d) of the definition refers to an undertaking under section 23 of the Pre-Trial Diversion of Offenders Act 1985. By section 2A of that Act the purpose of that Act is to provide for the protection of children who have been the victims of sexual assault by a parent or a parent’s spouse or defacto partner. The Act provides for the establishment of a program. Section 23 deals with people charged with a child sexual assault offence who have pleaded guilty. The court requests the person to give an undertaking to participate in the program. Section 23 goes on to provide that whilst participating in the program the defendant will comply with all reasonable directions given by the director including as to access to any other person premises or place. This again is a non-custodial outcome expressly said to fall within the definition of sentence for the purpose of the CPOR Act.

21. Subsection (e) of the definition deals with equivalent laws of a foreign jurisdiction and need not be considered further.

The defendant’s argument

22. The defendant argues that the mandatory registration provisions do not apply where a release order is made, but only where the defendant is detained. This focuses solely on the definition referring to provisions of the Mental Health Act with their root in the provisions relating to special hearings, as detailed above. This interpretation seeks to make the definition effectively exhaustive, rather than inclusive. What subsection (a) does is indicate that registrable person orders can be made in those types of proceedings. It is relevant to consider the other subsections of the definition, which notably include non detention orders.

23. A further argument was that to make the order was somehow to deprive the defendant of his fundamental rights. The legislation is clear. The provision is mandatory, and it applies to the defendant because section 3C is satisfied. The defendant has been sentenced for a registrable offence.

24. The defendant argues that whether a registrable person order is made under s3C is determined by the seriousness of the penalty and the safety of children.

25. The registration provisions called in aid by the defendant for this argument apply to offences that are not a class 1 or class 2 offences. The offences relevant to the defendant are class 1 or class 2 offenses and are more serious. It is fairly obvious why there is the emphasis on a consideration of risk where registration is discretionary; it is a consideration relevant to how to exercise the discretion. The scheme is different for the making of a mandatory registrable person order, which applies where the defendant has been sentenced for the registrable offence. It is mandatory, and does not require the consideration of risk factors. The nature of the offence is enough in the view of Parliament to require registration.

26. The defendant makes the same argument concerning discretion by reference to the provisions of section 3G which apply where a person has been granted bail. In those circumstances the matter is not yet proven so it is appropriate that in such circumstances concerning a class 1 or class 2 offence the position is different than after the offence has been proven. Hence the need to consider the question of risk in connection with a class 1 or class 2 offence when bail is being sought.

27. The point of the defendant is that the sexual safety of children remains the discretionary touchstone. From there a more general submission is made seeking to attach to the mandatory registration provisions some kind of assessment of risk. The problem with this argument is that the assessment of risk need only be considered where there is a discretion to be exercised. The order being sought by the Crown is a mandatory one. This takes the ground away from this argument of the defendant, providing of course the necessary preconditions are met (and here it is accepted they are all met save for the question of whether the defendant is relevantly subject to a sentence). There is no doubt that the object of the Act is the protection of children but in the case of a class 1 or class 2 offence, the Act dictates that protection in the form of registration is required due to the nature of the offence, and without requiring an assessment of risk.

Conclusions

28. The present argument reduces down to whether a release on conditions falls within the definition of sentence. The short answer to that is it is a penalty, and thus a sentence, because it places restrictions on the defendant by reason of the conditions made on 17 October 2025. The orders dispose of the matter following the entry of the special verdict. That the orders made are not custody or detention orders of the type referred to in subsection (a) of the definition of “sentence” is not determinative. That provision is inclusive, not exhaustive, and is dealing with orders made either following special hearings, or which are special verdicts. In either case it is a circumstance where the outcome differs from the “ordinary” finding of guilt, and possible recording of a conviction. It logically follows that where as a result of that same style of proceeding a release order is made on conditions, those orders also fall within the definition of “sentence”, a conclusion well supported by the following subsections of the definition making clear that in respect of other legislation, non detention orders are a sentence, and thus caught by the mandatory scheme. The nature of the definition is not exhaustive, so it is no answer to this to say that subsection (a) of the definition does not include release orders on condition following a special verdict from a special hearing. The principles of interpretation relating to the use of definition provisions spoken of in Kelly support this approach.

29. The interpretation argued by the defendant leads to incongruous results. It would result in some orders for release into the community being subject to the registration orders, and not others, without any rationale as to why that would be so. This was the point being made in Taylor at [27], and referred to at [10] above.

30. It is true in order for a release order to be made the Court needs to be satisfied on the balance of probabilities that the safety of the defendant or any member of the public will not be seriously endangered by the defendant’s release (s33(3)), but that does not render the orders imposed any less a sentence, either generally or under the definition relevant to s3C. The mandatory registration provisions thus apply. Such registration provides further protection for children, and is entirely consistent with the objects of the CPOR Act.

31. The order will be made as sought by the Crown. The parties are asked to prepare an appropriate short minute of order in line with these reasons.

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Decision last updated: 12 November 2025