R v ONA

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 429 of 2006

THE QUEEN
	v
ONA

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JUDGES:	ASHLEY and NEAVE JJA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 August and 4 September 2008
DATE OF JUDGMENT:	18 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 146
JUDGMENT APPEALED FROM:	R v ONA (Unreported, County Court of Victoria, Judge Nixon, 14 December 2006)

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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to two Commonwealth sexual offences committed on a person under the age of 16 while outside Australia – Whether judge erred in failing to give appropriate weight to delay – Whether judge failed to take account of purpose of ‘child sex tourism’ provisions in circumstances where offences were committed by the appellant while overseas for legitimate business reasons – Whether judge failed to take account of psychologist’s report – Whether sentence, cumulation order and non-parole period manifestly excessive – Whether sentencing discretion miscarried as a result of judge’s failure to take account of impact of lifetime reporting requirements under the Sex Offenders Registration Act 2004 – Appeal dismissed.

CONSTITUTIONAL LAW – Application for leave to add additional ground of appeal – Whether State law prohibited judge from having regard to the consequences of sex offender registration when sentencing appellant for Commonwealth offence – Whether State law ‘picked up’ by Commonwealth law – Alternatively, whether State law invalid because of Commonwealth law – SentencingAct 1991 s 5(2BC) – Crimes Act 1914 s 16A(2) – Judiciary Act 1901 ss 68(1) and 79(1) – Constitution s 109 – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Woinarski QC	Commonwealth Office of Public Prosecutions
For the Appellant	Mr R Richter QC with Mr M Croucher	Galbally & O’Bryan

ASHLEY JA:

I have had the advantage of reading the reasons for judgment of Neave JA in draft. I agree with her Honour that the appeal should be dismissed. I generally agree with her Honour’s analysis why that should be so. But I wish to say something about grounds 1 and 2, and proposed ground 5. I do so gratefully accepting her Honour’s description of the circumstances of the offending.

Ground 1 complains that the learned sentencing judge erred –
(a)In failing to give any weight to the delay between the charging of the appellant and the imposition of sentence;
(b)In reasoning to the effect that the delay was irrelevant because ‘none of [it] can really be regarded as the Crown’s responsibility.’
The judge’s sentencing remarks do not enable either aspect of that ground to be made out.

With respect to ground 1(a), the judge did in substance give weight to the delay. He did so in the appellant’s favour, by noting his rehabilitation in the period between arrest and sentence.

Counsel argued that the judge should have accorded delay more weight in favour of the appellant, for the delay meant that the charges had been left hanging over the appellant’s head for a period of years. That argument was outside ground 1(a). But if the ground had extended so far, I agree with Neave JA that counsel’s failure to press delay as a discrete mitigating circumstance was readily explicable; and I consider that failure to press it did not occasion a miscarriage of justice. Whilst the appellant’s constitutional challenge to the relevant provisions of the Crimes Act 1914 (Cth) did not of itself deny the significance of the delay which was thereby occasioned, there was a significant delay in bringing that challenge. If delay is attributable to an accused person’s obstructive tactics, the mitigatory impact of delay is likely to be at least diluted. That both provides a rational explanation why delay, per se, was not pressed by appellant’s counsel below, and explains why a miscarriage of justice did not thereby result.

I turn to ground 1(b). In my opinion, it misconceives the situation. The judge did not reason that delay was irrelevant because none of it could really be regarded as the Crown’s responsibility. What his Honour did was to note that counsel had not relied upon delay – which was no more than a statement of fact; and to remark that this had been quite proper – a comment which implicitly recognised that there would have been a difficulty for the appellant had the converse been submitted. Moreover, as Neave JA points out, the learned judge in fact addressed a principal – though not the only – potential significance of delay; that is, that if the offender is rehabilitated in the interim, it stands in mitigation of sentence. Moreover, his Honour addressed the matter to the advantage of the appellant.

Ground 2 complains that the learned sentencing judge erred in failing to take into account, sufficiently or at all:
(a)The fact that the provisions under which the appellant was prosecuted were aimed principally to those who travelled overseas for the purposes of ‘child sex tourism’; and
(b)His finding that the appellant went overseas for legitimate business activity and not for the purposes of ‘child sex tourism’.
It is plain enough that, by their language, each of ss 50BA(1) and 50BC(1)(a), of the Crimes Act 1914 (Cth) proscribe conduct both by a person who travels overseas with a view of engaging in sexual activity with a child or children, and by a person who simply engages in such conduct whilst overseas. Neither the fact that Part IIIA of the Crimes Act 1914 is headed ‘Child Sex Tourism’, nor the fact that several of the provisions within the part proscribe conduct by persons in Australia who - colloquially if not quite accurately - organise child sex tours, justify the plain words of the relevant provisions being read down. Counsel for the appellant did not contend to the contrary.

The gist of counsel’s submissions directed to ground 2(a) was that ss 50BA(1) and 50BC(1)(a) are principally directed against child sex tourism; and that the learned judge, by inference, had not recognised, or had insufficiently recognised, that this was so.

Counsel for the Crown conceded that appellant’s counsel had probably been correct in arguing that the ‘worst case’ would be that where a person had gone overseas for the purpose of engaging in sexual activity with a child or children. Such a circumstance, counsel submitted, ought be viewed as a matter of aggravation.

In my opinion, notwithstanding the applicability of the relevant sections to the appellant’s conduct, the concession made by counsel for the Crown was properly made. If a person was to travel overseas for the purpose of engaging in sexual activity with a child or children (or if that was one of the purposes for which the person travelled overseas) it would suggest a level of premeditation different in kind to an incident in which a person, whilst overseas, opportunistically took part in sexual activity with a child. So a purpose such as I have identified might properly be regarded as a circumstance of aggravation. It does not follow, of course, that the sentence in the one case would necessarily be greater than the sentence in the other. A person might go overseas for a purpose of engaging in child sex yet desist after one instance of offending conduct. Another person, whilst overseas, might engage in opportunistic child sex with different features of aggravation – as in the present case, where a particular breach of trust was involved.

In support of ground 2(a), counsel for the appellant fixed upon the sentencing remarks noted by Neave JA.[1] I see no evidence, however, that the learned sentencing judge misunderstood the import of the legislation – which is that the relevant offences, whatever be their genesis, are serious. General deterrence and denunciation will be relevant sentencing considerations in any such case. In my opinion, the appellant’s submission that the judge must have overweighed general deterrence proportionality and seriousness because, inter alia, the class of persons to be deterred must be smaller because the focus should be placed upon child sex tourists was unconvincing. Differences in sentence will be attributable to the different matters going in aggravation and mitigation in the particular instance.
[1]At [49].

I turn to ground 2(b). The learned judge did recognise, as the ground implies, that the appellant did not go overseas ‘for the express purpose of engaging in sexual activity with children’. His Honour recognised that fact in the context of considering the decisions of superior courts dealing with sexual offences against children committed overseas. The point of his observation was to draw a distinction between the present case and those other decisions – which immediately implied that he regarded the present offences as lacking a particular feature of aggravation.

It was submitted for the appellant that the sentence did not reflect, however, his Honour’s favourable finding, either at all, or sufficiently. I do not agree. Whether it did so is a matter of inference, depending upon all the circumstances of the offending and the offender which went into the sentence imposed. In the present case there were features of aggravation – the breach of trust, the videotaping of the incident. They had to be brought to account. I agree with Neave JA that the sentence ultimately imposed was not in any aspect manifestly excessive. That conclusion does not leave room for acceptance of the argument that the learned sentencing judge must have underweighed his finding that the appellant did not go overseas to engage in sexual activity with a child or children.

I turn to proposed ground 5 which sought to contend that –

The sentencing discretion miscarried in that the learned sentencing judge failed to take into account the impact of lifetime reporting under the Sex Offenders Registration Act 2004.

The submissions advanced by the parties in respect of this ground were not extensive; and in the case of the appellant were not very clearly articulated. The Court did not have the advantage of any submissions touching the interrelationship between ss 68(1) and 79(1) of the Judiciary Act1903 (Cth) and s 109 of the Constitution.

Neave JA has developed in her reasons a detailed explanation why it is that, before any consideration is given to s 68(1) or s 79(1) of the Judiciary Act, the

operation of s 109 of the Constitution may have to be considered in a case such as the present. Her reasoning, in my respectful opinion, is convincing. But in the absence of full argument I prefer to leave the question open. That said, I agree with her Honour that, if s 109 must first be considered, there was no inconsistency in this case; and I agree also with her Honour’s conclusion that s 5(2BC) of the Sentencing Act 1991 (Vic) was picked up and given operation by one or other of s 68(1) or 79(1), the exclusionary words in whichever of the sections applied having no operation.

I would grant the appellant leave to amend so as to add proposed ground 5. But I would reject it.

NEAVE JA:

The appellant, ONA, pleaded guilty to two offences under the Commonwealth Crimes Act 1914 (Cth) (‘CrimesAct’). Count 1 was the offence of committing an act of indecency on a person under 16 while outside Australia[2] and count 2 was the offence of engaging in sexual intercourse with a person under 16 while outside Australia.[3] The first offence took place in Liberia and the second in Thailand.
[2]Crimes Act s 50BC(1).
[3]Ibid s 50BA(1). The offences the subject of counts 1 and 2 both apply to Australian citizens.

After hearing a plea in mitigation of sentence, a County Court judge sentenced the appellant to eighteen months’ imprisonment on count 1 and five years’ imprisonment on count 2. His Honour ordered that the sentence imposed on count 2 commence 12 months after the sentence imposed on count 1, resulting in a total effective sentence of six years. He fixed a non-parole period of four years.

His Honour also directed that the appellant be registered under, and subject to the reporting requirements of, the Sex Offenders Registration Act 2004 (Vic) (‘SORAct’). Under s 34 of that Act, the appellant is required to comply with the applicable reporting requirements for life.

I CIRCUMSTANCES OF THE OFFENDING

The appellant is an Australian citizen and was, at the time of the offending, 56 or 57 years old. In October 1999, the appellant travelled to Liberia on business, where he met CAJ and began having a relationship with her. CAJ is the mother of the complainant, ONR. ONR was born on 21 April 1994 and was therefore between five and seven years of age at the time of the offending.

CAJ trusted the appellant and often let him care for ONR. On some occasions, she allowed the appellant to take ONR to a hotel swimming pool or out on shopping excursions. ONR appeared to love the appellant and to consider him a father figure.[4]
[4]Reasons [33]-[34].

The conduct to which count 1 relates was video-recorded by the appellant and occurred in Liberia between 21 October 1999 and 30 June 2001. The video shows the appellant in the shower with ONR. He is bare-chested and in close proximity to her. The video shows the appellant getting ONR to bend over and then using his hands to wash her vagina. Count 1 was based on the definition of an act of indecency contained in the Crimes Act (namely, that the act was of a sexual nature).

On 4 July 2001, the appellant, CAJ and ONR travelled together to Thailand. The appellant intended to bring them to Australia. The conduct covered by count 2 was also recorded on video and is said to have taken place in Thailand between 4 July and 13 December 2001. The activity captured on the video was described by the Crown in its summary of facts as follows:
[T]he video shows [ONR] in a position where her legs are splayed out, causing her genitalia to move laterally and to part. It is then possible to see on the video [ONR]’s clitoris, which is normally concealed by the labia majora and it is then possible to see the appellant’s penis in [the] area of [ONR’s] external genitalia where the labia has parted.
[ONR] was examined by Dr David Wells from the Victorian Institute of Forensic Medicine on 19 September 2003, shortly after she gave evidence at the appellant’s committal hearing. With the benefit of images captured on the video and his own examination Dr Wells concluded that the penis of the appellant was seen to penetrate the labia or outer lips of [ONR]’s vagina, but that there were no views in the video depicting full or what might be described as deep penetration of the genitalia.
In early December 2001, CAJ first noticed that ONR appeared frightened and reluctant to be left alone with the appellant. Although ONR initially resisted CAJ’s enquiries about whether she was upset about anything, she eventually admitted that the appellant had ‘put his toto here’, pointing to her vaginal area. The word ‘toto’ is used by African children to refer to a penis. The matter was reported to the police and the appellant was later arrested and charged with counts 1 and 2.

II GROUNDS OF APPEAL

The notice of appeal relied on the following four grounds of appeal against sentence.

Ground 1: The learned judge erred:
(a)in failing to give any weight to the delay between the charging of the appellant and the imposition of sentence;
(b)in reasoning to the effect that the delay was irrelevant because ‘none of [it] can really be regarded as the Crown’s responsibility’ (Sentence at [104]-[106]).

Ground 2: The learned judge erred in failing to take into account sufficiently or at all:
(a)the fact that the provisions under which the appellant was prosecuted were aimed principally at those who travelled overseas for the purposes of ‘child sex tourism’; and
(b)his finding that the appellant went overseas for legitimate business activity and not for the purposes of ‘child sex tourism’.

Ground 3: The learned judge erred in failing sufficiently to take into account, and/or to receive submissions on, all matters raised in Dr Smith’s report, including the appellant’s expressions of shame, his depression, the restrictions imposed by the bail conditions and the long period of anxious uncertainty he faced whilst awaiting the hearing in this matter.
Ground 4: The individual sentences, the extent of the order for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive and in breach of totality.

At the hearing of the appeal counsel sought leave to rely on an additional ground 5, which was that:

[t]he sentencing discretion miscarried in that the learned sentencing judge failed to take into account the impact of lifetime reporting under the Sex Offenders Registration Act 2004.

Counsel for the Crown opposed this amendment on the basis that it was raised for the first time at the hearing of the appeal. The Court gave both parties leave to file written submissions as to whether leave should be granted to amend the grounds of appeal to add proposed ground 5 and later heard them on that matter.

I now discuss the grounds of appeal relying on specific errors (grounds of appeal 1-3 and proposed ground 5) and finally consider ground 4, which contends that the sentences imposed are manifestly excessive.

A Ground 1 - failure to give weight to delay

Count 1 occurred some time between October 1999 and June 2001 and count 2 occurred between July and December 2001. On 3 September 2002 the appellant was arrested by the Australian Federal Police. He was initially charged with one count of engaging in sexual intercourse with a person under 16, one count of attempting to engage in sexual intercourse with such a person, and one count of committing an act of indecency on such a person.[5]
[5]The statutory provisions creating these offences are found in Crimes Act ss 50BA(1) and 50BC(1)(a) and Criminal Code s 11.1.

A contested committal hearing was held between 16 and 18 September 2003 and the appellant was committed for trial. At a County Court case conference held on 6 February 2004, the matter was fixed for trial in September 2004 and the judge advised the appellant’s counsel to act quickly if the appellant intended to initiate High Court proceedings to challenge the constitutionality of the Crimes Act provisions under which he was charged, as foreshadowed by his counsel. The trial date was vacated on 2 September 2004, because High Court proceedings had not been commenced by the appellant. In February 2005 High Court proceedings were commenced to challenge the validity of the child sex tourism provisions contained in the Crimes Act. Following the High Court’s rejection of the appellant’s Case Stated on 17 November 2005,[6] further delays occurred because ONR and CAJ were unable to obtain Liberian passports to enable them to travel to Australia for the trial. The trial date was fixed for April 2006, but the Crown prosecutor later applied for an adjournment because ONR and CAJ had not arrived in Australia as planned and there were fears for their safety. The adjournment was not opposed by the appellant. On 17 November 2006 CAJ made a statement after viewing the video-tape, and said that the first count must have occurred in Liberia and not in Thailand, as had previously been thought. The appellant was then arraigned on a fresh indictment and pleaded guilty to counts 1 and 2 in late November 2006. He was sentenced on 14 December 2006.
[6]XYZ v Commonwealth (2006) 80 ALJR 1036.

During the plea hearing the appellant’s counsel did not submit that delay should be treated as a mitigating factor in sentencing. Counsel representing the Crown said that the Federal police had acted swiftly when the complaint was made to them, that the time from arrest to committal was about a year and that the fact that a final trial date was not fixed until November 2006 was not caused by any failure of the Crown.

The learned sentencing judge said the following about the effect of delay.

[Defence counsel], quite properly, did not seek to raise the issue of delay. Clearly there has been delay since these offences came to light. But although there were some difficulties from time to time in bringing [CAJ] and [ONR] to Australia, which caused the trial to be adjourned on previous occasions, none of the delay can really be regarded as the Crown’s responsibility.
The Australian Federal Police acted promptly. There was a contested committal in 2003. Then later a challenge in the High Court to the legislation.
There was a considerable delay in making that challenge to the High Court. Whilst some five years or thereabouts have passed, the delay was not the responsibility of the prosecution, and Ms Sutherland did not seek to rely on delay as any part of the plea.[7]

1 Counsels’ submissions

[7]Reasons [104]-[106].

Counsel for the appellant submitted that the above passage showed that his Honour had erred by treating delay as relevant only if it was the fault of the prosecuting authority. In R v Rowley[8] Eames JA held that the sentencing judge had wrongly failed to give sufficient weight to delay, because the delay was not the fault of the Crown.In R v Tiburcy,[9] Maxwell P said delay which is not caused by the Crown may nevertheless be a significant mitigating factor.
[8][2007] VSCA 94, [38] (Vincent and Nettle JJA agreeing) (‘Rowley’).
[9](2006) 166 A Crim R 291, 296 [24]-[28] (Warren CJ and Buchanan JA agreeing) (‘Tiburcy’). See also R v Merrett, Piggott and Ferrari (2007) 14 VR 392, 399 [33]- 401 [37] (Maxwell P).

Counsel submitted that in this case the delay between arrest and sentence should have been taken into account because the offender had the possibility of being convicted of the offences hanging over him, and because he had used the four years between being charged and sentenced to rehabilitate himself. He had consulted a psychologist, Dr David Smith, in August 2003, a month before his committal for trial, had continued to see Dr Smith from then until June 2004, and had seen him again on three occasions in February 2006. Further, the appellant had reconciled with his de facto partner and the couple had since married, which also enhanced his prospects of rehabilitation.

Counsel also submitted that a substantial part of the delay was attributable to the appellant’s High Court challenge to the constitutionality of the statutory provisions which created the relevant offences. A delay caused by the appellant exercising his rights to argue that the legislation under which he was charged was unconstitutional, could not reduce the significance of delay as a mitigating factor.[10]
[10]See comments to this effect in R v Tezer and Davis [2007] VSCA 123, [42] (Habersberger AJA, Maxwell P and Eames JA agreeing).

Counsel said that further delays were caused by the vacating of two trial dates in April and July 2006, due to difficulties in bringing ONR and CAJ to Australia. Shortly before the matter was scheduled for trial in the County Court in November 2006, CAJ saw the video tape of the offence covered by count 1 and said that it had occurred in Liberia and not in Thailand (as had previously been assumed) thus requiring the appellant to be arraigned on a fresh indictment. Having regard to all of the above circumstances, his Honour should have given greater weight to delay in sentencing the appellant.

Counsel for the Crown submitted that although his Honour had remarked that none of the delay was the responsibility of the Crown, the learned Judge’s sentencing reasons did not support the submission that he had wrongly considered that delay which was not the fault of the Crown could not be treated as a mitigating factor. Although defence counsel at the trial had not explicitly relied on delay she had pressed the consequences of that delay, including the opportunity it had given the appellant to show he was taking steps towards rehabilitation. This had been taken into account by his Honour. The learned Judge had correctly noted the appellant’s family support and other matters relating to his prospects of rehabilitation which had occurred during this period.

Counsel also said that the appellant had had the benefit of experienced defence counsel at trial. It could be assumed that his counsel at trial had made a forensic decision not to rely on delay as a mitigating factor. If she had done so, the appellant’s contribution to the delay might have been further explored, to his disadvantage.

In this context counsel for the Crown said that the delay was in part attributable to the appellant’s failure to pursue the constitutional challenge in a timely manner. The challenge was foreshadowed at the case conference on 6 February 2004, but High Court proceedings were not initiated until 25 February 2005, almost a year and a half after the appellant had been committed for trial.

2 Conclusion

The delay in this case was a lengthy one. However, despite the comments on which counsel for the appellant relied, in my view his Honour considered the effects of delay in sentencing the appellant. In his sentencing reasons the learned sentencing judge referred to the appellant’s consultations with Dr Smith, his reconciliation with his wife and the relevance of these matters to his rehabilitation, although he did not explicitly link them to the issue of delay.

As Vincent JA explained in R v Rowley, the primary mitigating effect of delay occurs when ‘in the period of the delay, the offender has taken significant steps towards rehabilitation’.[11] It is clear that his Honour took account of the appellant’s consultations with psychologists during the period of the delay, though he did not accept the view that the offender was genuinely remorseful. The circumstances of this case are therefore distinguishable from those which arose in cases such as R v Merrett, Piggott and Ferrari,[12] Rowley,[13] and Tiburcy,[14] where the sentencing judge’s approach to delay meant that the offender’s remorse and rehabilitative efforts were given insufficient weight.
[11][2007] VSCA 94, [32].
[12](2007) 14 VR 392.
[13][2007] VSCA 94.
[14](2006) 166 A Crim 291.

In Rowley, Vincent JA also referred to the secondary consideration of ‘fairness towards the offender, who has had the matter hanging over his head, unresolved, for … a prolonged period’.[15] Although the learned sentencing judge did not explicitly refer to this matter, he was not asked to do so by defence counsel.
[15][2007] VSCA 94, [32].

There is a good reason why his Honour may not have been asked to do so. The appellant was entitled to challenge the constitutional validity of the legislation. But the one and a half year delay between the committal and the institution of High Court proceedings, and the consequent vacating of the trial date on two occasions, was caused by the appellant. In Tiburcy Maxwell P said that if a delay was caused by the offender’s obstruction or lack of co-operation, it was likely that it would not be taken into account.[16]
[16](2006) 166 A Crim R 291, 296 [25].

Even if the appellant did not deliberately obstruct the prosecution process by his delay in instituting the constitutional challenge to the legislation, his contribution to the delay substantially diminishes the weight which might otherwise be given to it as a mitigating factor. His Honour also noted the appellant’s guilty pleas were made at the last minute. CAJ and ONR were brought to Australia from Thailand to give evidence at the committal proceedings. The appellant initially pleaded ‘not guilty’ to the three counts on which he was committed for trial. It was not until after these witnesses had arrived in Australia to give evidence at the trial that the appellant pleaded guilty.

In these circumstances it is not surprising that defence counsel did not rely on delay as a mitigating factor, whilst at the same time contending that the appellant’s behaviour between his arrest and sentence showed that he had good prospects of rehabilitation and was unlikely to re-offend.

For these reasons, ground 1 is not made out.

B Ground 2 - purposes of the child sex tourism provisions
1 Counsels’ submissions

Counsel for the appellant submitted that the primary purpose of ss 50BC(1) and 50BA(1) of the Crimes Act was to punish those who went overseas to engage in ‘child sex tourism’. He said that this was indicated by the Minister’s Second Reading Speech[17] introducing the legislation, and by the fact that the provisions were inserted into the Crimes Act by the Crimes (Child Sex Tourism) Amendment Act 1994. It was reinforced by the heading ‘Child Sex Tourism’ to Part 3A of the Crimes Act, and by ss 50DA and 50DB, which appear in the same Part of the Crimes Act.
[17]See [54] below.

In his Reasons for Sentence, the judge below said that

The sentence should also reflect this court’s disapproval of the sexual abuse in which you engaged as well as taking the question of your rehabilitation into account. I regard general deterrence and denunciation as important considerations in the overall sentencing equation.
The gravity of your offending is highlighted by the second reading speech in parliament where the then Minister for Justice stated …
‘The principal aim of this legislation is to provide a real and enforceable deterrent to the sexual abuse of children outside Australia by Australian citizens and residents.’[18]

[18]Reasons [81]-[82].

Counsel for the appellant contended that other parts of the Second Reading Speech made it clear that the legislation was aimed squarely at those engaging in or promoting child sex tourism. He said that remarks made by his Honour relating to general deterrence, proportionality and the seriousness of the offences to which the appellant pleaded guilty, reflected his Honour’s mistaken view that the legislation was aimed equally at all citizens who abuse children overseas, rather than being primarily aimed at citizens who engage in or promote ‘child sex tourism’. Counsel said that the main purpose of the legislation was to punish Australian citizens and residents in younger ‘more virile’ age groups, who go overseas with the intention of seeking out children to sexually abuse them.

In addition counsel said that s 50DA, which makes it an offence for a person to do an act with the intention of benefiting from the kind of conduct punished by Part IIIA, and s 50DB which makes it an offence to encourage conduct of a kind constituting an offence under the same Part, show that the legislative provisions are primarily directed at those who promote or engage in child sex tourism for commercial purposes.

In the alternative, counsel for the appellant submitted that his Honour had given insufficient weight to the fact that the appellant had not gone overseas for the purposes of engaging in child sex tourism, and had offended without any premeditation.

Counsel for the Crown submitted that the Second Reading Speech, read as a whole, showed a clear intention to punish Australians who sexually abuse children in overseas countries. Counsel also said that the learned sentencing judge had clearly taken account of the fact that the appellant had not gone overseas with the intention of abusing children, and was therefore less culpable than tourists who deliberately go overseas to pursue opportunities to sexually exploit children.

2 Conclusion

There is no merit in ground 2. Although Part IIIA of the Crimes Act is headed ‘Child Sex Tourism’, the provisions in that Part apply equally to those who go overseas for the specific purpose of engaging in sexual activities with children and those who form that intention after they have arrived in a foreign country. In his Second Reading Speech the Minister for Justice said that:

The principal aim of this legislation is to provide a real and enforceable deterrent to the sexual abuse of children outside Australia by Australian citizens and residents. It is unfortunate that a minority of Australian citizens and residents are now known internationally as major offenders in several Asian countries. They exploit the vulnerability of children in foreign countries where laws against child sexual abuse may not be as strict, or as consistently enforced, as in Australia.
The bill aims to ensure that cowardly crimes committed against children outside Australia which are not prosecuted in the country in which they were committed can be prosecuted effectively in Australia. The bill also focuses on the activities of those who promote, organise and profit from child sex tourism. Provided they operate from Australia, or have a relevant link with Australia, they too will be able to be prosecuted for their contribution to the abuse of foreign children.
Some may wonder why the Australian parliament should enact laws to protect foreign children from sexual abuse and ask why the foreign country should not protect its own children. It is true that the primary responsibility for protecting children from sexual exploitation rests, as it should, with the countries where the children are exploited. The Asian countries which I have visited are indeed taking measures to do so but are confronted by social and economic factors which make their task difficult. They welcome any assistance in kerbing [sic] the trade in children’s bodies that other governments can give. Some other countries have already enacted, or plan to enact, legislation similar to that which is now before the House.
Apart from the fact that Australia is gaining an unenviable reputation in the world press on this issue, we also have international obligations to protect children, whatever their nationality. Australia ratified the Convention on the Rights of the Child on 17 December 1990, and this imposes an obligation to protect children, at both the national and the international level, from sexual exploitation and abuse. Australia played a key role in the development of the convention on the Rights of the Child and the Australian government is committed to pursuing the aims of that convention. The Human Rights and Equal Opportunity Commissioner, Mr Brian Burdekin, has been asked to prepare a draft protocol to the convention specifically addressing the problems of child prostitution and other forms of abuse and sexual exploitation of children.
As I indicated in my address to the First World Congress on Family Law and Children’s Rights in Sydney on 4 July 1993, it is clear from the recent World Conference on Human Rights in Vienna that children’s rights are high on the international agenda. That conference highlighted the need to develop effective and independent international machinery to ensure that abuses of children’s rights are identified and that tangible measures are taken to remedy those abuses.
The bill aims to achieve these ends by creating sexual offences, relating to conduct outside Australia, which will be punishable in Australia and offences of encouraging or benefiting from child sex tourism which may be committed in or out of Australia and will be punishable in Australia provided there is a relevant link with this country. All these offences will have substantial penalties, ranging from 10 to 17 years [sic] imprisonment, or correspondingly high pecuniary penalties if a company is involved.
The bill should send a clear message to child sex abusers and those who profit from their activities that the government and the community condemn their behaviour and do not intend to tolerate it.[19]

[19]Commonwealth Parliamentary Debates, House of Representatives, 3 May 1994, 72 (Duncan Kerr, Minister for Justice).

Although the Minister’s Second Reading Speech refers to the punishment of those who ‘promote, organise and profit from child sex tourism’, it also indicates the legislation has the broader goal of protecting children in overseas countries from sexual abuse by Australians.

Further, his Honour did not give insufficient weight to the fact that the appellant did not go overseas with the intention of engaging in child sex tourism. In his sentencing reasons he accepted that the appellant had gone to Liberia for business reasons, and recognised that many of the cases to which he had been referred by counsel for the Crown dealt with the position where the particular offender went overseas for the express purpose of engaging in sexual activity with children. He said that

[i]n imposing sentence I acknowledge that is not the position so far as you were concerned.[20]

[20]Reasons [96].

In my opinion ground 2 must therefore fail.

Counsel for the appellant also contended that a comparison of the sentence imposed on the appellant with sentences imposed in cases where an offender travelled overseas for the purposes of sex tourism indicated that even though his Honour had referred to this matter he could not have given it sufficient weight. I deal with that submission in the context of ground 4, which alleges that the sentence is manifestly excessive.

C Ground 3 - failure to take proper account of Dr Smith’s report

Mr Jeffrey Cummins, a forensic and consulting psychologist, gave evidence for the appellant at the plea hearing. Mr Cummins said that he had first interviewed the appellant in the week before the plea and assessed him on the basis of his interview and his answers to questionnaires routinely used by Forensicare in assessing people who sexually offend against minors.

In his oral evidence, Mr Cummins said that the appellant had a passive personality style and elevated test scores on scales measuring depression. He was a proud man who was ashamed of his offending behaviour. Although the appellant’s answers to questions indicated that he preferred sexual activity with consenting adult females he would be clinically diagnosed as a paedophile. In Mr Cummins’ opinion the offending was ‘isolated, it was situational offending’ and occurred at a time when the appellant was not in a relationship with the woman from whom he was separated at the time, but whom he subsequently married. Mr Cummins went on to say that although the appellant was remorseful, he was ‘still at a relatively early stage in the process of coming to terms in a comprehensive sense, regarding just what he’s done and how extreme that behaviour is’.

Counsel for the appellant asked Mr Cummins about Dr Smith, the psychologist, who had treated the appellant for about a year in 2003. The appellant’s counsel had unsuccessfully attempted to contact Dr Smith before the plea hearing. Mr Cummins said that he had not heard of Dr Smith and he understood that Dr Smith was not currently registered. In cross-examination he said that he had been in practice as a forensic psychologist for 33 years and repeated that he had never heard of Dr Smith.

Following the plea hearing Mr Cummins wrote to counsel for the appellant indicating that he had made contact with Dr Smith and had spoken with him in detail about his professional involvement with the appellant. He reported on that conversation as follows.

I spoke with Dr Smith in detail concerning his professional involvement with [the appellant] on 28^th November 2006.
Dr Smith confirmed he is primarily an academic psychologist working at RMIT University – Bundoora campus. In contrast to what I previously advised you, he is a member of the Australian Psychological Society although he does not advertise as such within the appropriate section of the Yellow Pages.
Dr Smith confirmed [ONA] first consulted him in August 2003 after which [ONA] attended for nine consecutive weekly consultations. The frequency of these consultations then extended to monthly visits on a continuing basis through until June 2004. [ONA] then returned for consultations in February 2006 during which month he attended for three consultations.

Dr Smith advised his therapeutic work with [the appellant] focused on monitoring [the appellant’s] psychological health and providing him with psychological support. It was Dr Smith’s opinion that [the appellant] engaged in the therapeutic process in an active manner. In terms of [the appellant’s] initial presentation, it was Dr Smith’s perception there was no doubt [the appellant] was struggling to reconcile his offending behaviour with his perception of himself as ‘a gentleman – a person of morality and standing’. Dr Smith also indicated that it was his opinion [the appellant] was clearly ashamed of his actions and particularly cognisant of the hurt he had brought and would continue to bring to his wife and children. When [the appellant] first attended upon Dr Smith, [the appellant’s] scores on both the Beck Depression Inventory and the Beck Anxiety Inventory placed him within the moderate-severe range for both depressive and anxiety symptoms.

As I explain below, his Honour referred to Mr Cummins’ letter reporting on his communication with Dr Smith, though a letter dated 28 November 2006 which was written by Dr Smith to Mr Cummins was not before his Honour.

1 Counsels’ submissions

Counsel for the appellant submitted that Dr Smith was a member of two of the specialist colleges of the Australian Psychological Society and had had many years of experience in clinical and forensic psychology. Mr Cummins’ evidence had cast doubt on Dr Smith’s qualifications, which had not been removed by Mr Cummins’ letter reporting his contact with Dr Smith. This had resulted in his Honour giving insufficient weight to Dr Smith’s opinion about the appellant’s psychological state.

Counsel initially contended that the Court should receive Dr Smith’s letter of 28 November 2006 as fresh evidence. When pressed on that issue, however, he conceded that the requirements for the admission of fresh evidence had not been satisfied.[21] However he submitted that if the Court considered that the appeal should be allowed, Dr Smith’s letter should be taken into account for the purposes of re-sentencing.

2 Conclusion

[21]See for example R v Babic (1998) 2 VR 79 and R v Duy Duc Nguyen [2006] VSCA 184.

In his sentencing reasons, his Honour said that:

You sought help from Dr David Smith, a psychologist and after the plea hearing, Mr Cummins was able to contact Dr Smith, and as a result, Mr Cummins has provided some information in a letter directed to [defence counsel]. I have been handed a copy of that letter.
It appears that you first consulted Dr Smith in August 2003 and you had a number of consultations thereafter. Dr Smith believed that you were struggling to reconcile your offending behaviour with your perception of yourself as a gentleman, [a] person of morality and standing.
Dr Smith, at the time of the first consultation, placed you in the moderate to severe range of both depressive and anxiety symptoms. You, as Mr Cummins stated, have had great difficulty in facing up to your offending behaviour. But provided, as you say you will, [you] participate in the sex offender’s program, Mr Cummins expressed his opinion that your prognosis is, and I quote, at least, reasonable and most probably better than that. I do not disagree.[22]

[22]Reasons [101]-[103].

In my opinion ground 3 is not made out. His Honour specifically referred to matters in the letter from Mr Cummins. There is nothing in his reasons which suggests that his Honour gave inadequate weight to the fact that the appellant had sought treatment from Dr Smith, or to Dr Smith’s opinion, because of the evidence given by Mr Cummins at the plea hearing, which was later corrected in Mr Cummins’ letter.

DProposed ground 5 – failure to take account of reporting requirements

An offence under s 50BA of the Crimes Act is a Class 1 offence under the SOR Act, while an offence under s 50BC is a Class 2 offence.[23] A registrable offender must report his personal details, including name, date of birth and address, names and ages of children residing in the same household and employment details[24] to the Chief Commissioner of Police within a specified period.[25] The offender must also report changes to personal details,[26] intended absences from Victoria for more than 14 days and absences overseas.[27]
[23]Section 7 of the SOR Act defines a class 1 offence as an offence listed in Schedule 1 and a Class 2 offence as an offence listed in Schedule 2.
[24]Ibid s 14.
[25]Ibid s 12.
[26]Ibid s 17.
[27]Ibid s 18.

The reporting period depends on the nature of the offences of which the offender was convicted. Under s 34 of the SOR Act, a person who has been convicted of a Class 1 and a Class 2 offence must report annually for the remainder of his life. It is an offence, punishable with a maximum term of 5 years’ imprisonment, for a person to fail to comply with reporting obligations without reasonable excuse.[28] Section 5(2BC) of the Sentencing Act 1991[29] provides that:

In sentencing an offender a court must not have regard to any consequences that may arise under the SOR Act 2004 … from the date of imposition of the sentence.

1 Counsels’ submissions

[28]Ibid s 46(1).

[29]Hereafter the Sentencing Act.

Counsel for the appellant submitted that, by contrast to s 5(2BC) of the Sentencing Act, s 16A(2) of the Crimes Act does not prohibit the court from having regard to the consequences of registration under the SOR Act. It therefore implies that the consequences of registration are relevant to sentencing. Accordingly, his Honour erred in failing to take account of the effect on the appellant of having to report for life.

Part IB of the Crimes Act sets out the principles governing the sentencing, imprisonment and release of federal offenders. Section 16A(1) provides that

In determining the sentence to be passed … in respect of any person for a federal offence, a court must impose a sentence … that is of a severity appropriate in all the circumstances of the offence.

Section 16A(2) provides that, in addition to any other matters, a court must take into account a number of matters. These include

(j)the deterrent effect that any sentence or order under consideration may have on the person;
(k)the need to ensure that the person is adequately punished for the offence;
(m)the character, antecedents, age, means and physical or mental condition of the person; and
(n)the prospect of rehabilitation of the person.

Counsel submitted that one of the purposes of the SOR Act is to keep police informed of the whereabouts of offenders, so as to reduce the likelihood that they will re-offend. This is directly relevant to s 16A(2)(j), which refers to the deterrent effect of the sentence, and to s 16A(2)(n), which deals with prospects of rehabilitation. Consequently, counsel submitted that s 5(2BC) of the Victorian Sentencing Act could not apply to the appellant, because it was inconsistent with s 16A(2) of the Commonwealth Crimes Act.

Counsel for the Crown relied on s 68(1) of the Commonwealth Judiciary Act 1903, which provides that

(1)The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
…
(c) their trial and conviction on indictment;
…
shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section. (Emphasis added.)

Counsel submitted that the Sentencing Act, including s 5(2BC), was caught by the language of s 68(1), which had been held by the High Court in Putland v The Queen[30] to include State sentencing laws. Counsel said that the purpose of s 68(1)(c) of the Judiciary Act was to ‘place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State’.[31]
[30](2004) 218 CLR 174 (‘Putland’). See also Williams v The King (No 2) (1934) 50 CLR 551.
[31]Leeth v The Commonwealth (1991) 174 CLR 455, 467 (Mason CH, Dawson and McHugh JJ, quoting the judgment of Dixon J in Williams v the King (No 2) (1934) 50 CLR 551); Putland (2004) 218 CLR 174, 179 (Gleeson CJ).

Counsel for the Crown submitted that s 5(2BC) was ‘applicable’ because it was not inconsistent with s 16A(2) of the Crimes Act. In Putland, a majority of the High Court held that s 52(1) of the Sentencing Act (NT), which allowed a court to impose a single term of imprisonment on a person who had been found guilty of two or more offences joined in the same indictment, was picked up and applied to federal offences by s 68(1) of the Judiciary Act. The High Court held that the provisions regulating the sentencing of federal offenders in Part IB of the Crimes Act were not intended to cover the field and thus did not exclude the Northern Territory provision.

Counsel for the Crown further submitted that even if s 68(1) did not apply s 5(2BC) of the Sentencing Act to federal offenders, s 79(1) of the Judiciary Act picked up that provision. Section 79 provides that

(1)The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

Counsel for the Crown also relied on the decision of the Court of Appeal in DPP v Ellis,[32] which was decided before the introduction of s 5(2AB). In that case Callaway JA (with whom Batt and Buchanan JJA agreed) said that an offender’s reporting obligations under the SOR Act were generally irrelevant to sentencing, though ‘[a]n exception should be recognised ... where the reporting obligations operate with unusual severity on a particular offender’.[33] Counsel submitted that the facts of this case did not give rise to that exception. Thus, even if s 5(2BC) did not prevent registration being taken into account in sentencing a federal offender, his Honour’s failure to do so could not have affected the sentence he imposed.
[32](2005) 11 VR 287.
[33]Ibid 294 [16].

Counsel for the appellant conceded that s 68(1) ‘picked up’ the SOR Act, in the sense that its registration and reporting provisions applied to sex offenders convicted of federal offences. However he submitted that s 5(2BC) of the Victorian Sentencing Act was not an applicable law under s 68(1) of the Judiciary Act. He said that s 52(1) of the Northern Territory Sentencing Act, which was held to apply in Putland, was a law regulating sentencing procedure only, and did not go to the substance of the sentencing discretion. By contrast, s 5(2BC) prohibited Victorian courts sentencing federal offenders from taking account of a mitigating factor which would otherwise have been a relevant sentencing consideration. Although the Crimes Act did not contain a provision which was expressly inconsistent with s 5(2BC), s 16A contained an inclusive list of matters to be taken into account in sentencing, in combination with common law sentencing principles. By prohibiting the Court from taking account of registration as a sex offender, which was a mitigating factor relevant under the common law, s 5(2BC) affected the substance of federal judicial power. His Honour had therefore erred by failing to take account of the appellant’s registration as a sex offender.

Because the submissions of counsel raised the question whether there is an inconsistency between s 5(2AB) of the State Sentencing Act and s 16A of the Commonwealth Crimes Act, the Federal, State and Territory Attorneys-General were notified of the matter.[34] None of the Commonwealth and the State and Territory Attorneys-General chose to intervene.

2 Conclusion

[34]See Judiciary Act s 78B.

The appellant’s counsel did not make clear whether his submission was that s 5(2BC) was inconsistent with s 16A of the Crimes Act, so that the State provision was invalid in its application to federal offenders under s 109 of the Constitution, or whether he was contending only that s 5(2BC) was not ‘picked up’ by s 68(1) or s 79 of the Judiciary Act, because it could not be reconciled with s 16A(2) of the Crimes Act.

In sentencing a federal offender, State laws may apply by virtue of either s 68(1)[35] or s 79(1) of the Judiciary Act. It could therefore be said that such State laws become ‘surrogate’ Commonwealth laws,[36] and that consequently s 109 has no relevance to them. That issue was not examined in Putland,[37] where the High Court considered whether a Territory law applied to the sentencing of federal offenders, by virtue of s 68(1) of the Judiciary Act.
[35]See for example De Vos v Daly (1947) 73 CLR 509 (State provision providing for imprisonment in default of payment of a fine held applicable to a federal offence); R v Walsh (1984) 3 NSWLR 584 (State law allowing outstanding charges to which offender admits guilt held to be applicable in sentencing a federal offender); Peel v R (1971) 125 CLR 447 (State provision permitting Attorney-General to appeal against sentence upheld). Note that the High Court refused leave to appeal in DPP (Cth) v Rowson [2009] HCA Trans 111, where counsel sought to challenge the correctness of Peelv R (1971) 125 CLR 447.
[36]For use of this expression see Northern Territory v GPAO (1999) 196 CLR 553, 630 ( Kirby J).
[37](2004) 218 CLR 174; see also Wong v R (2001) 207 CLR 584, where the general issue of the applicability of State sentencing laws to federal offenders was discussed at 597 ( Gleeson CJ), 609 and 616 (Gaudron, Gummow and Hayne JJ). Note that in that case the Court was not purporting to articulate sentencing guidelines based on a statutory power to do so: see 600 and 616.

One of the issues which arose in Northern Territory v GPAO[38] was whether s 97(3) of the Northern Territory Community Welfare Act 1983, which protected an ‘authorised person’ from having to produce documents in court proceedings, was inconsistent with provisions of the Family Law Act1975,[39] which imposed sanctions for failure to produce documents required by subpoena in Family Court proceedings.
[38](1999) 196 CLR 553.
[39]It was held by the majority at 591 (Gleeson CJ and Gummow J) and 605 (Gaudron JJ) that the fact that the jurisdiction conferred on the Family Court to make orders relating to ex-nuptial children in the Northern Territory was based on s 122 of the Constitution (the ‘Territories power’) did not deprive that jurisdiction of its federal character. Contra 609 (McHugh and Callinan JJ).

Gleeson CJ and Gummow J said that in cases of collision between a State law and a federal law, ‘the threshold issue’ was whether inconsistency arose under s 109 of the Constitution.[40] If no s 109 inconsistency arose,[41] the question was then whether the State law was applied in federal proceedings by virtue of s 79 of the Judiciary Act, or was excluded because Commonwealth law ‘otherwise provided’.
[40](1999) 196 CLR 553, 575-576.
[41]Note that in Northern Territory v GPAO (1999) 196 CLR 553, the s 109 inconsistency question did not have to be dealt with because the alleged conflict was between a law enacted by the Territory legislature and a law of the Commonwealth which applied to the Northern Territory. See 580 (Gleeson CJ and Gaudron J), 606 (Gaudron J) and 630 (Kirby J). Kirby J said, however, that similar principles apply by analogy where a Territory and a federal law are inconsistent: see 636.

In Agtrack (NT) Pty Ltd v Hatfield[42] the appellant contended that there was an inconsistency between State and federal legislation to which s 109 applied. The respondent submitted that if s 79 of the Judiciary Act made a State law a ’surrogate law’ of the Commonwealth for the purposes of the exercise of federal jurisdiction, no question of s 109 inconsistency could arise. Ormiston JA did not finally resolve this issue. He said

It was argued that where s 79 is invoked no question of legislative inconsistency under s 109 could apply so far as State legislation was concerned, … in that the sole question, so it was contended, was whether the laws of the Commonwealth ‘otherwise provided’, within the meaning of s 79 of the Judiciary Act. …
To the extent that the question raises a different issue, which in practical terms may here be doubted, s 109 still may demand an answer if the relevant inconsistency with State or Territory legislation can be perceived. This would appear to have been accepted by the High Court in cases such as NT v. GPAO, see especially per Gleeson CJ and Gummow J (with whom Hayne J agreed). One may suggest that s 109 must, on occasions, provide a conclusive answer where, for example, declaratory relief has already been granted to the effect that a particular State or Territory Act is invalid by reason of inconsistency. In the circumstances it could hardly be argued that a different outcome must occur merely because federal jurisdiction has been invoked and s 79 has been called in aid. Whether answering both questions in the present case makes any difference is another matter: for present purposes, I would doubt that the answer is any different.[43]

[42](2003) 7 VR 63 (‘Agtrack’).

[43]Ibid [57] (citation omitted).

His Honour said that a party might rely on s 79 of the Judiciary Act, rather than on s 109 of the Constitution, because he or she might consider that the s 109 approach might produce a less favourable outcome for him or her. However he doubted whether that was the case because

a similar question must arise when determining whether Commonwealth law ‘otherwise provides’. One should nevertheless begin by asking whether the ‘inconsistency’ requirements of the Constitution do apply.[44]

[44]Ibid [58].

His Honour also said it should be accepted that

when one is determining, in a case where federal jurisdiction is invoked and s 79 must be applied, whether the two statutes are ‘irreconcilable’ to the extent that one should conclude that the laws of the Commonwealth have ‘otherwise provided’, one is dealing with a narrower question based on the assumption that the two sets of laws may operate validly at the same time, unless they are irreconcilable in that sense.[45]

[45]Ibid.

In PSL Industries Ltd v Simplot Australia Pty Ltd,[46] Chernov JA agreed with Ormiston JA in Agtrack that the first question to be resolved is whether there is a s 109 inconsistency between a State and Commonwealth provision, although the method of proceeding may not have any practical effect on the question whether the State law is applied by the Judiciary Act. He commented that

[i]t may be that, as Ormiston JA has suggested in Agtrack, for the purposes of determining if there is a fatal clash between the State and Commonwealth provisions, one starts with the question whether there is an ‘inconsistency’ between them for the purpose of s 109 of the Constitution. As his Honour pointed out, if the State legislation can be characterised as a surrogate and operating law of the Commonwealth for the purposes of s 79 of the Judiciary Act, there may still remain the question of inconsistency between the two relevant laws for the purposes of s 109 of the Constitution. Nevertheless, for the purpose of this case, it is probably immaterial from a practical point of view whether one begins by seeking to determine if the Commonwealth legislation ‘otherwise provides’ or by asking if the Commonwealth law ‘covers the field’. Ordinarily, if a matter were to be examined in that order and it was concluded that the Commonwealth law did provide ‘otherwise’ that would be the end of the matter and the State law would be treated as not operable for relevant purposes. There would be no point then in examining also whether the Commonwealth legislation covers the field with which the State provisions are concerned.[47]

[46](2003) 7 VR 106 (‘PSL’).

[47]Ibid 113 [14] (citations omitted).

The High Court dismissed Agtrack’s appeal,[48] albeit for different reasons to those given by this Court. In their joint reasons Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ referred to the interaction between s 109 of the Constitution and s 79 of the Judiciary Act as follows:

[s]omething should be added respecting the operation of s 109 of the Constitution in the circumstances of Pt IV of the Carriers’ Act. Earlier in these reasons it has been noted that s 35(2) of the Carriers’ Act substitutes the liability under Pt IV in respect of the death of a passenger for any civil liability of a carrier ‘under any other law’. To that extent, the State laws adopting Lord Campbell’s Act are rendered invalid. A plaintiff who sued, say, in the diversity jurisdiction in a State court and sought to rely upon Lord Campbell’s Act could not do so. By reason of s 35(2) and the operation of s 109 of the Constitution, that State statute would have ceased to be a law of a State within the meaning of s 79 of the Judiciary Act; there would be no subject matter to be picked up by the operation of s 79.
This operation of s 109 is anterior to any commencement or prosecution of a proceeding in a court. Section 79 begins to operate ‘only where there is already a court “exercising federal jurisdiction”, “exercising” being used in the present continuous tense’.
The relationship between s 109 of the Constitution and s 79 of the Judiciary Act, which is sequential rather than concurrent, was further explained in Northern Territory v GPAO. There the expression ‘threshold issue’ was used.[49]

[48]Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251.

[49]Ibid 271, [61]-[63] (citations omitted). Note also their Honours’ comments on s 79 of the Judiciary Act: [55]-[60]. See also [108] (Callinan J).

Agtrack and PSL suggest that it may be necessary to consider whether there is a s 109 inconsistency, before considering the operation of the Judiciary Act provisions. For that reason, I begin by considering whether s 5(2BC) is inconsistent with s 16A of the Crimes Act, and therefore invalid to the extent of the inconsistency under s 109 of the Constitution.

I then consider the following questions:

·Is s 5(2BC) ‘picked up’ by the language of s 68(1) of the Judiciary Act? Alternatively is s 5(2BC) ‘picked up’ by s 79(1) of the Judiciary Act?
·If s 5(2BC) comes within the language of either s 68(1) or s 79(1) of the Judiciary Act, does it apply in sentencing a person for a Commonwealth offence, or is it inapplicable, because of Crimes Act s 16A(2)?
·Should his Honour have taken account of the effect of the appellant’s registration as a sex offender in mitigation of sentence?

(a) Is s 5(2BC) invalid under s 109 of the Constitution?

A s 109 inconsistency may arise in three situations. These are helpfully described by Joseph and Castan as follows:[50]

·where it is impossible to simultaneously obey both laws, for example where one law requires the performance of an act, and the other forbids its performance;[51]
·where one law takes away a right conferred by another;[52] and
·where Commonwealth legislation evinces an intention to ‘cover the field’, leaving no area for the operation of State law.

[50]S Joseph and M Castan, Federal Constitutional Law A Contemporary View (2001) Chapter 7. See also Peter Hanks, Constitutional Law in Australia (2^nd ed, 1996).

[51]See for example R v Licensing Court of Brisbane; Ex Parte Daniell (1920) 28 CLR 23.

[52]See for example Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151.

A direct inconsistency arises ‘where one law commands what the other forbids, or one law compels disobedience of the other.’[53] No such direct inconsistency exists here. Section 16A sets out a non-exhaustive list of matters which are to be taken into account in sentencing, but does not explicitly deal with the effect of sex offender registration. The State Act does not compel disobedience of any requirement imposed by the Commonwealth Act.
[53]S Joseph and M Castan, Federal Constitutional Law: A Contemporary View (2001) 165.

In my view the factors set out in State and Commonwealth sentencing laws cannot be characterised as conferring ‘rights’ upon offenders, though they guide the sentencing judge in the exercise of his or her discretion. Further, even if the matters set out in s 5(2BC) of the Sentencing Act and s 16A of the Crimes Act do confer ‘rights’ on offenders, it cannot be said that they give a particular offender the right to have a particular circumstance considered, simply because it falls within one of the broad discretionary factors.

The language of s 16A indicates that it is not an exhaustive statement of sentencing principles, which is intended to cover the field in relation to federal offenders. The section contains only an inclusive list of factors to be taken into account in sentencing, leaving open other discretionary considerations which may be relevant under the common law.[54]
[54]See for example DPP (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370.

In Putland the High Court held that Part 1B of the Crimes Act (in which s 16A appears) did not express an intention to cover the field relating to sentencing, and accordingly did not render State laws as to sentence inapplicable.[55] Although the question considered in that case was whether the Commonwealth provision ‘otherwise provided’ for the purpose of s 68(1) or s 79, rather than whether a s 109 inconsistency arose between the State and federal legislation, Putland is also relevant to the s 109 question. Gleeson CJ said that

[i]t is impossible to conclude that Pt 1B left no room for the application of, or was inconsistent with, s 52 of the Sentencing Act. Such a conclusion depends upon a misunderstanding of its history, an exaggeration of its comprehensiveness, and the attribution to the legislature of a policy which cannot be discerned in the legislation.[56]

[55]Putland (2004) 218 CLR 174, 185 (Gleeson CJ) and 193 (Gummow and Heydon JJ). Kirby J considered that the provisions of Part 1B were inconsistent with the provision for aggregate sentences in indictable offences, because s 4K was confined to permitting aggregate sentences for summary offences: see 203-204.

[56]Ibid 185 [23].

I acknowledge however that in a particular case a sentencing judge may consider that an offender’s registration is an extra-curial punishment which should be taken into account under common law principles or because it is relevant to one of the matters set out in s 16A(2) of the Crimes Act.

In such circumstances there would be a conflict between the prohibition in s 5(2BC) and the principles in the federal legislation. This is similar to the situation where overlapping powers are conferred by federal and State legislation on both federal and State authorities respectively, thus giving rise to an ‘operational inconsistency ’.

The origin of the notion of operational consistency can be traced back to Victoria v Commonwealth,[57] where State legislation permitted a port officer to remove a ship sunk in a port within Victoria, and Commonwealth legislation conferred power to remove a ship sunk ‘on or near the coast of Australia’.[58] The High Court held that no s 109 inconsistency arose simply by virtue of the existence of the overlapping powers of federal and State authorities.
[57](1937) 58 CLR 618.
[58]The relevant provisions were found in the Marine Act 1928 (Vic) s 13 and Navigation Act 1912-1935 (Cth) s 329.

Latham CJ said that there was ‘no inconsistency in express terms’ since the Commonwealth legislation simply purported to confer power to remove a wreck and should not be interpreted as meaning that no one else could do so.[59] Starke J said that the legislation was not intended to cover the field and no inconsistency arose unless one or other authority purported to obstruct the other.[60] He considered that a question of inconsistency might arise if both the State and federal authority purported to act simultaneously.
[59](1937) 58 CLR 618, 626.
[60]Ibid 628.

Dixon J said that there was no reason to consider that the powers conferred by Commonwealth and State laws were not intended to operate concurrently, although an inconsistency might arise if both federal and State authorities began to remove the same wreck.[61]
[61]Ibid 632.

In such circumstances the Commonwealth authorities would be entitled to proceed ‘without interference from any other public authority’. He stressed, however, that in such a case the impact on the State law would ‘extend no further than the application which its general language might otherwise have’ to that particular wreck. Although state legislation would be rendered inoperative if such an inconsistency arose, the powers of federal and State authorities could otherwise co-exist.[62]
[62]Ibid 631. See also 636-637 (Evatt J) and 640 (McTiernan J).

It might be said that any possible conflict in the instant case is distinguishable from the potential conflict between the respective powers of State and Commonwealth authorities in Victoria v Commonwealth. In this case, a practical conflict could arise between the provision permitting a matter to be taken into account in the exercise of the sentencing discretion (s 16A(2) of the Crimes Act) and the provision which prohibits it from being taken into account (s 5(2BC) of the Sentencing Act).

Despite the difference between this situation and that arising in Victoria v Commonwealth, I consider that the concept of operational inconsistency is relevant in these circumstances. The potential conflict is analogous to that in Commonwealth v Western Australia,[63] where the Mining Act 1978 (WA)[64] permitted the grant of exploration licences on the perimeter area of lands used by the Commonwealth as a defence practice area. Under the Commonwealth Defence Regulations, entry into the perimeter area was prohibited if a defence operation or practice was authorised by the Chief of Staff. Accordingly there was a potential conflict between the power to grant a mining tenement under the Mining Act, and the prohibition against entering the perimeter area, at times when authorised defence operations were occurring. Thus one of the issues in the case was whether the Mining Act was inconsistent with the Defence Regulations and therefore invalid to the extent of the inconsistency.[65]
[63](1999) 196 CLR 392.
[64]Hereafter the Mining Act.
[65]The major issue in the case concerned lands in which the Commonwealth held freehold and leasehold interests. The discussion above deals with the perimeter area only.

The majority rejected an argument that the Defence Regulations ‘covered the field’ and held that any inconsistency that might emerge if the holder of a licence sought to enter the perimeter area contrary to a prohibition, would be an ‘operational’ inconsistency only. Gleeson CJ and Gaudron J said:

It is clear that the regulations to which reference has been made constitute an exhaustive statement of the Commonwealth’s rights and obligations with respect to private land in a defence practice area. However, they make limited provision as to the rights and obligations of other persons. Save to that limited extent, their rights and obligations are left to the general law. Accordingly, it cannot be said that the Defence Regulations manifest an intention to ‘cover the field’ with respect to the rights and obligations of persons other than those acting for or on behalf of the Commonwealth in relation to the perimeter area.
Nor, in our view, can it be said that any provision of the Mining Act would, if valid, alter, impair or detract from the operation of the Defence Regulations or that the Act is otherwise inconsistent with the Regulations because, for example, the Act and the Regulations cannot be obeyed simultaneously or one takes away what the other confers. That is because the Mining Act does not confer rights to enter upon or use land in the perimeter area. Rather, it simply allows that authority may be granted to persons to enter or conduct mining operations on that land.
The Defence Regulations do not operate to prevent entry or activity on the perimeter area, except if a defence operation or practice has been authorised by a chief of staff pursuant to reg 51(1). It would seem clear that, were authority to be granted pursuant to the Mining Act to enter upon or conduct mining activities on land in the perimeter area at a time or times specified in an authorisation under reg 51(1) for the conduct of a defence operation or practice, there would be direct inconsistency between that authorisation and the authority granted under the Mining Act. That inconsistency would result from the inconsistent operation in the particular circumstances of the Mining Act and the Defence Regulations – ‘operational inconsistency’, as it is called.
Section 109 of the Constitution operates to render a State law inoperative only to the extent of its inconsistency with a law of the Commonwealth and only for so long as the inconsistency remains. Although there may be ‘operational inconsistency’ between the Mining Act and the Defence Regulations in the event and to the extent that authority is conferred pursuant to the former to enter upon or engage in activities on land in the perimeter area at a time when a defence operation or practice is authorised under reg 51(1) of the Defence Regulations, that situation has not yet arisen. Thus, at the present time, there is no inconsistency between the Mining Act and the Defence Regulations.[66]

[66]Commonwealth v Western Australia (1999) 196 CLR 392, 416-417 (footnotes omitted). See also 439-440, 443 (Gummow J) and 478 (Hayne J). Kirby J held that there was an inconsistency: see 453-454.

By analogy, I consider that s 5(2BC) of the Sentencing Act is not inconsistent with s 16A of the Crimes Act, except in circumstances where the sentencing judge considers that an offender’s registration under the SOR Act, should be taken account because it is relevant to one or more of the discretionary factors set out in s 16A(2). For the reasons discussed below, this is not such a case.

(b)Is section 5(2BC) a law falling within s 68(1) or s 79(1) of the Judiciary Act?

Assuming that s 109 does not prevent s 5(2BC) from applying to federal offenders, except in cases of operational inconsistency, it is necessary to decide whether it is picked up by s 68(1) or s 79 of the Judiciary Act. Section 68(1)(c) applies to a law ‘respecting the arrest and custody of offenders or persons charged with offences, and the procedure for: … their trial and conviction on indictment’.

In Putland[67] the High Court held that s 68(1)(c) of the Judiciary Act applied s 52(1) of the Northern Territory Sentencing Act, which allowed a court to impose an aggregate sentence on a person who had been found guilty of two offences joined in the same indictment, to a federal offender.
[67](2004) 218 CLR 174.

Gleeson CJ rejected the submission that there was a distinction between ‘procedures’ referred to in s 68(1) and powers, commenting that paragraphs (a) to (d) of s 68(1) refer to procedures of various kinds which typically involve or create powers. He said that:

In the present case, the sentencing judge was exercising jurisdiction conferred by s 68(2). Northern Territory laws respecting the procedure for trial and conviction on indictment were at least potentially picked up and applied as federal law by s 68(1). Sentencing laws come within that description. In Leeth v The Commonwealth, Mason CJ, Dawson and McHugh JJ referred to an observation by Dixon J that s 68 disclosed a policy ‘to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State’ and that it was ‘no objection to the validity of such a provision that the State law adopted varies in the different States’.[68]

[68]Ibid 178-179 (footnotes omitted).

Gummow and Heydon JJ said that:

Section 68(1)(c) of the Judiciary Act provides that the laws of the Territory ‘respecting … the procedure for … trial and conviction on indictment’ shall, subject to the balance of s 68, apply ‘so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of [the Northern Territory] by this section’. The powers conferred under sentencing laws fall within that description in s 68(1)(c).[69]

[69]Ibid 188 (footnote omitted).

Kirby J, who dissented in the final result, examined the language of s 68(1) more closely. His Honour explained the question which arose as follows:

The appellant complained of a confusion between the provision in s 68(1) for the applicability of a procedure and the source of a substantive sentencing power. He argued that the latter was not supplied by s 68(1).
The appellant relied both on the absence of a specific power for aggregate sentencing at common law and the existence of a provision of a defined power for aggregate sentencing, confined by federal law to offenders convicted of summary federal offences. He invoked the distinction noticed by McHugh J in Solomons v District Court (NSW) between jurisdiction, powers and procedures. He submitted that this distinction confined the operation of s 68(1) of the Judiciary Act to procedures arising during a trial and at the stage of conviction. It did not extend to the substantive law of sentencing.
Even if powers with respect to sentencing might, on a broad view, be regarded as part of the act of ‘conviction’ (and not a step occurring after the ‘conviction’ was complete), the appellant argued that s 52 of the Sentencing Act could not be categorised as a merely ‘procedural’ provision. Support for this submission is found in the context of s 68(1) of the Judiciary Act and the reference there to procedures anterior to the trial (arrest, custody and bail). Support for the distinction may also be found in observations of this Court made in relation to innovative State laws readily characterised as ‘procedural’. Such an interpretation of s 68(1) would still leave the sub-section with much work to do. As a particular example, it would permit the laws of States and Territories governing procedures for the joinder of offences on an indictment to be ‘picked up’ and applied to the trial and conviction on indictment of a person accused of a federal offence.
There is therefore much force in the appellant’s argument that s 52 of the Sentencing Act is not a provision respecting ‘procedure’ but a substantive provision altering the law of sentencing in a fundamental way by providing a power to the judiciary that does not otherwise exist in law. On this footing, s 68(1), concerning as it does ‘procedures’ not ‘powers’, would have no effect to ‘pick up’ the provisions of the Territory Act for application to the sentencing of a federal offender, even assuming that the law of sentencing could be regarded, broadly, as a law ‘respecting’ the ‘conviction’ of a person charged on indictment.
In the end, however, it is unnecessary to resolve this issue. This is because s 79 of the Judiciary Act applies to ‘pick up’ the ‘laws of each … Territory, including the laws relating to procedure, evidence, and the competency of witnesses’. As I pointed out in Solomons, although, by these terms, s 79 makes specific reference to the laws relating to procedure etc, the identified categories are mentioned ‘only by way of illustration’. This makes it clear that s 79 has a wider ambit. It applies, so long as the conditions in that section are met.[70]

[70]Ibid 200-202 (footnotes omitted).

It is arguable that the decision in Putland applies only to State provisions dealing with powers to make particular types of sentencing orders (in that case an order imposing an aggregate sentence),[71] and does not apply to ‘pick up’ a provision dealing with a matter which would otherwise be taken into account in exercising the substantive sentencing discretion.
[71]Though this would appear to be contrary to the view of Gleeson CJ.

It is, however, unnecessary to express a firm view on that question. As Kirby J pointed out in the passage in 93 above, s 79 of the Judiciary Act has a broader operation than s 68(1). In my opinion, s 79 ‘picks up’ s 5(2AB) of the Sentencing Act, unless it is inapplicable for the reasons discussed below.

(c)Is s 5(2BC) excluded by the qualifications contained in s 68(1) or s 79(1) of the Judiciary Act?

I have reasoned that s 5(2BC) of the Sentencing Act is not invalid under s 109 of the Constitution, because it does not directly contradict s 16A of the Crimes Act; or deprive offenders of rights created by that Act and was not intended to cover the field of sentencing law.

However the conclusion that there is no s 109 inconsistency, does not necessarily resolve the question whether s 5(2BC) is excluded because it is irreconcilable with other Commonwealth legislation.

Section 68(1) of the Judiciary Act provides that the laws of a State or Territory are ‘picked up’ ‘so far as they are ‘applicable’ to persons who are charged with offences against the laws of the Commonwealth’. Section 79(1) of the Judiciary Act provides that the laws of each State or Territory ‘shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory’.

In Putland, the High Court regarded the expression ‘so far as applicable’ in s 68(1) and the expression ‘except as otherwise provided’ in s 79(1) as interchangeable.[72] It follows that nothing turns on whether s 5(2BC) is ‘picked up’ by s 68(1) or s 79(1).
[72]Ibid 179 (Gleeson CJ), 188-189 (Gummow and Hayne JJ) and 202 (Kirby J).

In Northern Territory v GPAO,[73]Gleeson CJ and Gummow J considered the meaning of the expression ‘otherwise provided’ in s 79. Their Honours quoted the following passage by Mason J in University of Wollongong v Metwally: [74]

Inconsistency or repugnancy is a long-standing concept in the field of statutory law. Where the provisions of two statutes are in conflict, so much so that they cannot be reconciled one with the other, there is a consequential need to resolve the problem created by the conflict. In the case of conflicting statutes enacted by one legislature the problem is resolved by regarding the later statute as impliedly repealing the earlier statute to the extent of the inconsistency.[75]

[73](1999) 196 CLR 553.

[74](1984) 158 CLR 447.

[75]Ibid 463.

Their Honours regarded the question of applicability of State laws under s 79 of the Judiciary Act as the second kind of problem. They said:

The objective of s 79 is to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself. Seen in that light, the notion of ‘inconsistency’ involved in the phrase ‘otherwise provided’ in s 79 is akin to that first identified by Mason J in the passage from the judgment in University of Wollongong v Metwally set out earlier in these reasons. This is the need to resolve the problem that arises by conflict between conflicting statutes having the same source. The law of a State or Territory which is to operate as a surrogate law of the Commonwealth is to be measured beside other laws of the Commonwealth.[76]

[76](1999) 196 CLR 553, 588 (citation omitted).

Similarly, in PSL[77] this Court differentiated between the approach which applies in determining whether a Commonwealth law is ‘irreconcilable’ with Victorian provisions for the purpose of s 79 of the Judiciary Act, and the approach used to determine whether there is an inconsistency between a Commonwealth and a State law for the purpose of s 109.[78]
[77](2003) 7 VR 106.
[78]Compare DPP v Mansfield (2008) 246 ALR 186, 216.

Chernov JA (with whom Ormiston JA and O’Bryan AJA agreed) said that:

The test for determining whether a Commonwealth statute provides ‘otherwise’ is whether it is irreconcilable with the relevant State provisions: see Northern Territory v GPAO and Austral Pacific Group Ltd v Airservices Australia. See also the article by the Hon Justice Sackville entitled ‘The re-emergence of federal jurisdiction in Australia’. Thus, the tests relating to inconsistency for the purpose of s 109 of the Constitution and that applicable to determine whether there is relevant irreconcilability are not the same as seems to have been recognised by the majority of the High Court in Austral Pacific Group Ltd v Airservices Australia. Their Honours said:
‘The question remains whether s 79 was inapplicable because provision otherwise was made by another law of the Commonwealth, namely the Compensation Act. The criteria to be applied are indicated in Northern Territory v GPAO. … GPAO shows that the question is not answered by the application of the doctrine identified, in the decisions construing s 109 of the Constitution, with the phrase “covering the field”. ‘[79]

[79]PSL (2003) 7 VR 106, 112 [13] (citations omitted).

In the above quotation Chernov JA considered that the ‘covering the field test’ was irrelevant to the question whether s 79 picked up a State law. By contrast, in Putland the High Court referred to the ‘covering the field’ approach in determining whether a State provision was ‘otherwise applicable’. Whether or not the ‘covering the field’ test applies in answering that question, in my view s 5(2BC) of the Sentencing Act is not ‘otherwise applicable’ because of s 16A of the Crimes Act.[80]
[80]See Austral Pacific Group Limited (in liq) v Airservices Australia (2000) 203 CLR 136, 144.

In Putland the High Court[81] held that the Northern Territory provision permitting the imposition of an aggregate sentence for offences joined in the same indictment, was not inconsistent with s 4K of the Crimes Act, which only provided for aggregate sentences to be imposed for summary offences, despite the fact that this could lead to federal offenders being sentenced differently in different States. It was accepted that Part 1B of the Crimes Act was not intended to ensure uniformity in the treatment of all federal offenders.[82]
[81]Gleeson CJ, Gummow, Callinan and Heydon JJ, Kirby J dissenting.
[82]Putland (2004) 218 CLR 174, 185 (Gleeson CJ) and 195 (Gummow and Heydon JJ, commenting on the non-applicability of s 80 of the Constitution in this situation). Callinan J agreed with the reasons of Gummow and Heydon JJ. See also Leeth v The Commonwealth (1992) 174 CLR 455.

In Wong v R,[83] the High Court considered whether the New South Wales Court of Criminal Appeal had erred in setting out guidelines for sentencing persons convicted of narcotic importation, in the context of a Crown appeal against sentence. The guidelines treated the weight of the drug as the central factor in sentencing.[84] They were not actually relevant to the offenders whose sentences were challenged, because they related to drug couriers and people at a lower level of the criminal organisation.
[83](2001) 207 CLR 584. See also Kesavarajah v R (1994) 181 CLR 230.
[84]For an explanation as to the way the guideline judgment was to operate see R v Wong (2001) 207 CLR 584, 604 (Gaudron, Gummow and Hayne JJ).

One of the issues discussed was whether the use of such guidelines was inconsistent with Crimes Act s 16A(2). Gleeson CJ was in the minority in dismissing the appeal. However he said that:

there is, in my view, a valid criticism to be made of the guidelines…. There is utility in addressing the criticism, because of the danger that in future cases, where the guidelines are applied, error may result. I agree with the contention of the appellants that, making due allowance for all the qualifications with which the guidelines were accompanied, there is a substantial risk that they may result in an approach to sentencing which is inconsistent with the requirements of s 16A of the Crimes Act 1914 (Cth). In so far as they are a mere compilation or classification of sentencing information, then they are either accurate or inaccurate, helpful or unhelpful. But they are clearly intended to be more than that. The effect they will have, is to constrain the exercise of sentencing discretion. This is a risky undertaking when there is a federal statute which spells out in detail the matters to be taken into account by a sentencing judge. The statute is important both for what it says and for what it does not say. In particular, the guidelines, in their specificity, and in the significance they attach to the objective fact of the quantity of heroin imported, which is broken down into sub-categories which have no statutory foundation, are likely to lead to error. To take one example, which is not uncommon, although it has nothing to do with the present case, it may be that an offender’s state of information and belief about the quantity of heroin imported is much more significant than the objective fact as to quantity. A given judge, looking at the guidelines, but also taking account of all the qualifications expressed, might not necessarily take an approach inconsistent with s 16A. But there is a real risk that another judge might.[85]

[85](2001) 207 CLR 584, 597.

Gaudron, Gummow and Hayne JJ considered that the guidelines were inconsistent with the federal sentencing regime. They said that:

First and foremost, as the Court of Criminal Appeal recognised in its reasons, a judge sentencing an offender for being knowingly concerned in the importation of narcotics must give effect to Pt 1B of the Commonwealth Crimes Act. The sentencer must, therefore, ‘impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence’: s 16A(1). Standing alone, the reference to imposing ‘a sentence … of a severity appropriate in all the circumstances of the offence’ might be read as directing the sentencing judge to determine a sentence proportionate to the wrong-doing without regard to considerations of rehabilitation or incapacitation of the offender or the offender’s prior criminal history. But s 16A(1) does not stand alone. To the extent that the matters identified in s 16A(2) are relevant and known to the Court, the sentencer must take those into account. This group of matters is very diverse. It includes not only ‘the nature and circumstances of the offence’ but also matters such as the degree to which the offender has shown contrition (s 16A(2)(f)), the offender’s ‘character antecedents, cultural background, age, means and physical or mental condition’ (s 16A(2)(m)) and ‘the need to ensure that the person is adequately punished for the offence’ (s 16A(2)(k)). What is notably absent from s 16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence. There is no statement of the kind found, for example, in the Sentencing Act 1991 (Vict) (s 5) of the purposes for which sentences may be imposed, and there is no statutory requirement which obliges a sentencer to give particular weight to one or other of those purposes in sentencing certain kinds of offender. Section 16A obliges the sentencer to take all of them into account and effect must be given to that legislative command.
In those circumstances, while s 16A takes the form it now does, it would be wrong to produce some numerical guideline system of a kind similar to that adopted in some jurisdictions in the United States under which presumptive sentences are fixed by reference to a classification of the gravity of an offence and the seriousness of the offender’s previous criminal history. To do so would obviously depart from the legislative command of Pt 1B of the Commonwealth Crimes Act if only because it fastens upon only some of the factors that are mentioned in the Act. Yet that is what the Court of Criminal Appeal’s tabulation of sentences does. It offers a grid against which future sentences are to be judged and it is a grid which is founded entirely on gravity of the offence as measured only by the weight of narcotic concerned.[86]

[86]Ibid 609-610 (footnotes omitted).

Kirby J took a similar view on this point, referring to the requirement imposed on the sentencing judge to have regard to s 16A of the Crimes Act. He said that

[t]he terms of the section are clearly stated on the hypothesis that the judges concerned in the determination, and review, of such a sentence must perform their functions imposing an individual sentence ‘that is of a severity appropriate in all the circumstances of the offence’ (s 16A(1)).
There follows, in s 16A(2) of the Crimes Act, a list of matters particular to the offence and the offender involved. To superimpose upon that list highly specific requirements expressed in terms of anticipated outcomes defined by reference only to the weight of narcotic substances cuts across the scheme of the individualised and complex assessment of relevant considerations contemplated by s 16A(2). This inconsistency is specially objectionable because of the holding that the overall parameters of the offence in question are defined by reference to the objective quantity of the drug imported. Within the maximum limits of punishment set by the definition of the offence in that way, the Parliament intended matters of aggravation and mitigation to be particular to the offence and the offender. Those considerations were not subject to additional rigidities caused by the highly particular and unique reference in the guidelines to the quantity of the narcotic substance in question.
It is true that s 16A(2) of the Crimes Act begins with an acknowledgement that ‘any other matters’, in addition to those listed, may be taken into account by the court concerned in the sentence of a convicted federal offender. It is in this way that the consideration of general deterrence has been given weight, although it is not mentioned in the list. But the common feature of the list, as of the substantive offences provided in the Customs Act, is that a sentence will be imposed which addresses all the individual circumstances of the offence and the offender. That is not the hypothesis upon which the ‘guideline judgment’ under consideration is drawn. The guidelines contemplate a result or outcome derived not from multiple factors but only from a single identified factor, namely the weight of the narcotic substance in question. To elevate that consideration (which would otherwise be given appropriate attention but as one only of the many considerations relevant to sentencing) to such a position of primacy is to distort the command of the Parliament governing the approach to sentencing of convicted federal offenders which was binding on the sentencing judge and the Court of Criminal Appeal.[87]

[87]Ibid 632-633 (footnotes omitted).

Callinan J, who like Gleeson CJ would have dismissed the appeal, also doubted whether the guidelines could apply in sentencing federal offenders.[88]
[88]Ibid 643.

In my opinion Wong v R is clearly distinguishable from the situation which arises in this case. The reasoning above indicates that the sentencing guidelines were regarded as inconsistent with s 16A because they placed primary emphasis on the weight of the drug trafficked, thus substantially reducing the relevance of common law principles and of the factors set out in s 16A(2) of the Crimes Act. In this case, by contrast, all of the factors specified in s 16A(2) remain relevant to the exercise of the judge’s sentencing discretion. Other cases where a provision of a State sentencing law has been held inapplicable to federal offenders have generally concerned situations in which Commonwealth legislation deals explicitly with the matter dealt with by the State law.[89]
[89]See for example All-Cars Ltd v McCann [1945] ALR 214; Darcy v Nikoloff [1954] SASR 62; R v Otto&Jankowski [1971] VR 844.

However even if, contrary to my view, s 5(2BC) of the Sentencing Act is not ‘otherwise applicable’ to sentencing federal offenders, I consider that, in the circumstances of this case, his Honour was not required to give any weight to the effect of registration.

An extra-curial punishment imposed on an offender may, in some circumstances, be relevant to his or her sentencing.[90] However even where there is no prohibition on taking the effect of a registration and reporting requirement into account, registration will only be regarded as an extra-curial punishment in unusual circumstances.
[90]See for example R v Tilev [1998] 2 VR 149, 155 (Batt JA), where the appellant’s property was subject to a confiscation order because it had been used for growing cannabis.

In R v KNL,[91] Latham J (with whom Buddin J and Brownie AJA agreed) said of the equivalent New South Wales legislation that

… I doubt that, in the circumstances of this case, the requirements as to registration under the Offenders Registration Act could be properly characterised as extra-curial punishment entitling the respondent to any mitigation of penalty. The respondent was not, at the time of sentence, or likely in the future to be, pursuing an occupation which gave him access to children. Many pieces of legislation require persons to register their details with police or other public authorities, in the interests of public health and safety, for example, legislation relating to the possession of firearms. The cases which have thus far considered the notion of extra-curial punishment have been restricted to physical and/or financial penalties sustained by offenders, or loss of employment in which the offender was engaged or qualified to be engaged, arising out of the commission of the offence. (See generally R v Daetz (2003) 139 A Crim R 398.)
I do not mean to suggest that there could never be a case where extra-curial punishment might arise from the requirements of the Offenders Registration Act, but this case fell far short of any penal consequence being visited upon the respondent because of a conviction. Even allowing for some regard to the requirements of registration and the potential restriction on employment, that factor deserved very little weight; R v Daetz (at [62]).[92]

[91](2005) 154 A Crim R 268.

[92]Ibid 277-278.

Similarly, in DPP v Ellis[93] Callaway JA said that:

As a general rule, in my opinion, an offender’s reporting obligations under the Sex Offenders Registration Act are irrelevant. Parliament has decided that persons sentenced for particular offences constitute a class in relation to whom such obligations are appropriate. They are an incident of the sentence. It would unduly burden the sentencing process if judges were required to take them into account, any more than if they were required to take into account other ordinary incidents of the criminal justice system. An exception should be recognised only where the reporting obligations operate with unusual severity on a particular offender. In other words, they are relevant to sentencing only in exceptional circumstances.[94]

[93](2005) 11 VR 287.

[94]Ibid 293-294. Callaway JA also said that ‘[l]ike Brooking JA in R v Stevens [1999] VSCA 173 at [10], a case concerned with s 31(5A) of the Sentencing Act, [he]would be reluctant to see ‘a jurisprudence of exceptional circumstances’ develop for this purpose.’

In R v Fidler[95] Charles JA also accepted that ‘there could be unusual cases in which a sentencing judge might take the view that the reporting conditions imposed under Part 3 of the SOR Act were of such a nature as significantly to reduce the risk of re-offending and, as a result, the weight to be accorded to protection of the community.’[96]
[95][2006] VSCA 17, [14]-[17].
[96]Ibid [11].

In the case of persons convicted of sexual offences under State laws, the question whether an offender’s reporting obligations under the SOR Act should be taken into account has become hypothetical, as the result of the enactment of s 5(2BC). However, as I have said, even if such registration were relevant in sentencing federal sex offenders, it would not have had any effect on the appellant’s sentence in this case. There is no evidence that the appellant’s employment will be affected because of his registration as a sexual offender. Nor is there evidence of other circumstances which would make the registration and reporting requirements operate with unusual severity.

I also consider that the reporting requirements imposed on the appellant, have no relevance to the weight given to specific deterrence, in light of his Honour’s finding that the appellant’s prognosis was ‘at least reasonable and most probably better than that’.[97]
[97]Reasons [103].

At the plea hearing the appellant’s counsel did not submit that the appellant’s registration and reporting obligations should be taken into account in sentencing. There was therefore no opportunity for the Crown to refer to factual matters which might have been relevant to proposed ground 5. Although the questions of law discussed above would justify the granting of leave to add proposed ground 5, there is no factual basis for the appellant’s claim that he would have received a different sentence if his registration as a sex offender had been taken into account. In these circumstances I would refuse the application to add proposed ground 5.

E Ground 4 – manifest excess

Finally, ground 4 alleges that the individual sentences, the total effective sentence and the non-parole period were manifestly excessive, having regard to:

·the appellant’s lack of a prior criminal record;
·his age of 63 at the time of sentence;
·the fact that the offences were charged as discrete offences and not representative counts;
·the absence of any violence or threats and the limited extent of penetration of the complainant;
·the judge’s acceptance of psychological evidence that the appellant’s prospects of rehabilitation were ‘at least reasonable and most probably better than that’ and the support the appellant had from his wife and children;
·his guilty plea; and
·the delay in proceedings.

I have already dealt with the alleged error in relation to delay.

Counsel for the appellant submitted that in Victoria the maximum term of imprisonment which could be imposed for the offences of incest and sexual penetration of a child under 10 years of age was 25 years, whereas the maximum sentence for sexual penetration of a child under 16 was 17 years under s 50BA of the Crimes Act, which was about two-thirds of the maximum for equivalent Victorian offence. He submitted that the sentence of five years’ imprisonment for count 2 was well beyond the range having regard to that maximum. In making that submission counsel reiterated that the sexual penetration was ‘more akin to an attempt’ because it did not amount to full vaginal penetration.

The sentence imposed on the appellant must reflect the gravity of his offending. As his Honour commented, the behaviour covered by count 2 was ‘disgusting, repulsive and abhorrent’.[98] The appellant, a man who was in his late 50s at the time he committed the offences, exploited the trust reposed in him by the complainant’s mother, CAJ. He sexually penetrated a seven year old child, who saw him as her father. He told the child not to tell her mother what he was doing and videoed his disgraceful acts. CAJ’s victim impact statement indicates that the offences have had serious effects on ONR. His Honour found no evidence that the appellant was truly remorseful and said that ‘[his] remorse was far more remorse for the position in which [he found himself] than genuine remorse’.[99]
[98]Ibid [75].
[99]Ibid [87].

The appellant must be given credit for his guilty plea, although it occurred very late in the process, after he was aware that CAJ and ONR had returned to Australia to give evidence against him. Both the complainant and her mother had previously been brought to this country to give evidence at his committal. The appellant has also made efforts to rehabilitate himself, and has the support of his wife. Despite the matters relied upon by the appellant’s counsel, including the appellant’s lack of prior offending and the fact that he was 63 when he was

sentenced, I do not consider that the sentences imposed on the individual counts were manifestly excessive.

Counsel for the appellant also submitted that his Honour had taken the wrong approach to cumulation, because he treated the 18-month sentence imposed on the less serious offence as the base sentence. While his Honour should have treated the sentence of five years imposed on count 2 as the base sentence, the fact that he ordered one year’s cumulation made no practical difference to the total effective sentence, which is not manifestly excessive.

Nor am I persuaded by the appellant’s counsel’s submission that the non-parole period of four years was manifestly excessive. The non-parole period gave appropriate weight to the seriousness of the offences and other relevant matters, including the appellant’s age and his prospects of rehabilitation.

For the above reasons I would dismiss this appeal.

MANDIE AJA:

I agree that this appeal should be dismissed generally for the reasons stated by Neave JA. I would also concur with what is said by Ashley JA, particularly in relation to ground 5.

[2009] VSCA 146

18 June 2009