R v Mills - [2015] ACTSC 419

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Mills
Citation:	[2015] ACTSC 419
Hearing Date:	17 December 2015
DecisionDate:	17 December 2015
Before:	Murrell CJ
Decision:	Fined $500.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – registrable child sex offender – failure to report – low objective seriousness – low risk of re-offending – early plea of guilty
Legislation Cited:	Crimes (Child Sex Offenders) Act 2005 (ACT) s 37(1) Crimes (Sentencing) Act 2005 (ACT) ss 7, 33
Parties:	The Queen (Crown) Garry Mills (Offender)
Representation:	Counsel Ms E Wren (Crown) Mr K Archer (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender)
File Number:	SCC 197 of 2015

MURRELL CJ:

The offender adhered to a plea of guilty entered at the earliest reasonable opportunity in the Magistrates Court to an offence contrary to s 37(1) of the Crimes (Child Sex Offenders) Act 2005 (ACT) (Child Sex Offenders Act). The offence is that, between 28 February 2015 and 1 April 2015, being a registrable child sex offender, he failed to make an annual report to police.

The maximum available penalty for this offence is five years' imprisonment and/or a fine of 500 penalty units.

The commission of the offence constitutes a breach of a recognizance release order.

Background

On 29 August 2013, the offender was sentenced for three child pornography offences that occurred in 2012. Two of the offences were Commonwealth offences and one was an ACT offence.

For one of the Commonwealth offences the offender was sentenced to two and a half years’ imprisonment from 29 August 2013. He was sentenced to nine months’ imprisonment for the other Commonwealth offence and the ACT offence. The sentences were to be served concurrently. The Court ordered that the first six months of each sentence be served by way of full-time imprisonment and that the next 12 months be served by way of a periodic detention order. The remainder of the sentence (relating only to the first Commonwealth offence), being a period of one year, was suspended for a period of three years upon the offender entering into a recognizance release order.

The offender was released from full-time imprisonment on 28 February 2014 and entered a recognizance release order. Upon his release he was told that he was required to report in his capacity as a registrable child sex offender. He also received written notification of the requirement. The offender reported to the Child Sex Offender's Registry Team on 6 March 2014. He was told that he needed to report annually each March.

The offender failed to report in March 2015. He was not sent a reminder about reporting and he says that he simply overlooked his obligation to do so.

On 20 May 2015, police telephoned him. He responded immediately, attending for an interview on 6 June 2015. He admitted that he had not reported and that he had been advised that he should do so.…

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 R v Mills

Details

AGLC: R v Mills [2015] ACTSC 419
Case: [2015] ACTSC 419
Decision Date: 17 December 2015

CaseChat Overview and Summary

In the case of R v Mills, the defendant was charged with failing to report a change of address to the police, as required under the Sex Offender Registration Act. The case was heard in the Magistrates' Court of Victoria. The defendant, who had previously been convicted of a child sex offence, failed to update his address when he moved, and this breach of the registration requirements led to the current charges. The prosecution argued that the defendant's failure to report warranted a custodial sentence, whereas the defence submitted that the offence was of low objective seriousness and that the defendant posed a low risk of re-offending, particularly given his early plea of guilty.

The court was required to balance the need for punishment and deterrence against the low objective seriousness of the breach and the defendant's remorse, demonstrated by his early plea. The court also had to consider the potential impact of a custodial sentence on the defendant's reintegration into society, as well as the broader principles of sentencing for registrable child sex offenders. Given the low risk of re-offending and the defendant's early guilty plea, the court found that a fine was a more appropriate sentence than imprisonment.

The court found that the defendant's breach of the registration requirements, while serious, did not warrant a custodial sentence. The court acknowledged the importance of compliance with registration requirements for the protection of the community and deterrence of further offending. However, the court also recognised the low objective seriousness of the breach and the defendant's remorse. The court imposed a fine of $500, which it deemed sufficient to achieve the aims of punishment and deterrence while also taking into account the defendant's low risk of re-offending and his early guilty plea. The court ordered that the defendant pay the fine within a specified period.

Orders

Orders of the court

Fined $500.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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