Tarasiuk v Commissioner of Police - [2016] SADC 105

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Application for Review)
TARASIUK v COMMISSIONER OF POLICE
[2016] SADC 105
Judgment of His Honour Judge Tilmouth
25 August 2016
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
Decision of a Delegate of the Commissioner of Police to require the appellant to wear an electronic tracking device, upheld on the merits. Examination of the nature and extent of the statutory procedure to make such a requirement.
Child Sex Offenders Registration Act 2006 (SA) s 3, s 4, s 10A, s 10B, s 66N, s 66N(1); Criminal Law Consolidation Act 1935 (SA) 2(1), s 63A; District Court Act 1991 (SA) s 8(3), s 10B(4), s 42E(1), s 42E(2)(b), s 42E(3), s 42F, s 42G; Marksman Training Systems Pty Ltd v The Registrar of Firearms [2014] SADC 150; Halejko v Commissioner of Police [2016] SADC 48; Annetts v McCann (1970) 170 CLR 596; Kioa v West (1985) 159 CLR 550; Coco v The Queen (1994) 179 CLR 427, referred to.
O'Dea v Commissioner of Police (2016) 125 SASR 159; Registrar of the Veterinary Surgeons Board (SA) v Mooney & The Veterinary Surgeons Board [2009] SADC 62; Twist v Randwick Municipal Council (1976) 136 CLR 106, applied.

TARASIUK v COMMISSIONER OF POLICE
[2016] SADC 105
The proceedings

In this proceeding the Court is exercising jurisdiction to entertain an appeal against a decision of the Commissioner of Police (by his Delegate) requiring the appellant Mr Tarasiuk, to wear an electronic tracking device.[1] These reasons explain why the appeal must be dismissed.
[1] For the validity of such delegation refer to Marksman Training Systems Pty Ltd v The Registrar of Firearms [2014] SADC 150, [52]-[59].
Statutory context - declarations
The decision in question is recorded in ‘Reasons for Issuance of a Requirement to Wear or Carry a Tracking Device (GPS)’, made pursuant to s 66N of the Child Sex Offenders Registration Act 2006 (SA) (CSOR Act). Section 66N(1) provides:
66N—Tracking devices
(1)The Commissioner may, on such grounds as the Commissioner thinks fit, issue a requirement to a serious registrable offender that he or she wear or carry a tracking device supplied by the Commissioner for the purpose of monitoring his or her whereabouts (either at all times or at times specified by the Commissioner).
Such declarations are made in furtherance of the objectives of the CSOR Act as stated in s 3:
3—Object
The object of this Act is to protect children from sexual predators by—
(a)requiring certain persons who may have a propensity to commit sexual offences against children to keep the Commissioner of Police informed of their whereabouts and other personal details for a period of time—
(i)to reduce the risk of such offences being committed; and
(ii)to facilitate the investigation and prosecution of any offences that are committed; and
(b)preventing such persons from engaging in child-related work.
As pointed out in H v Commissioner of Police,[2] the CSOR Act is ‘primarily concerned with the protection of children’.
[2] [2016] SADC 48, [28].
The expression ‘serious registrable offender’ is defined in s 4 of the CSOR Act as meaning:
serious registrable offender means—
(a)a registrable repeat offender; or
(b)a registrable offender who has been declared to be a serious registrable offender under Part 2A;
Section 4 of the CSOR Act further defines a ‘registrable repeat offender’:
registrable repeat offender means a registrable offender who has (whether before or after the commencement of this Act) committed—
(a)on at least 3 separate occasions, a class 1 or class 2 offence; or
(b)on at least 2 separate occasions, a class 1 or class 2 offence provided that on each occasion the victim was under the age of 14 years;
A ‘registrable offence’ is defined to mean:
registrable offence means—
(a)a class 1 offence; or
(b)a class 2 offence; or
(c)an offence that results in the making of a child sex offender registration order;
Class 1 and 2 offences are extensively defined in Schedule 1 to the CSOR Act. For relevant purposes these include the offences of unlawful sexual intercourse under s 49 of the Criminal Law Consolidation Act 1935 (SA) (CLCA),[3] and the possession of child exploitation material under s 63A of the CLCA.[4]
[3] Part 2 clause 2(1) of Schedule 1.
[4] Part 3 clause 3(g) of Schedule 1.
As will appear, Mr Tarasiuk was convicted in June 1997 of seven counts of unlawful sexual intercourse and on two separate occasions, in February and December 2005, of possessing child exploitation material of victims under the age of 14 years. It is clear following the decision in O’Dea v Commissioner of Police,[5] that these provisions apply to persons committing offences prior to them coming into effect.
[5] [2016] SASCFC 58, [23].
The ‘Part 2A’ referred to in the definition of a ‘serious registrable offender’, encompasses s 10A and s 10B. The former empowers the Commissioner of Police to issue serious registrable offender declarations, and the latter provides for an appeal against such declarations. The notice of reasons was furnished upon the request of the appellant, as required by s 66N(7) of the CSOR Act, which obliged the Commissioner to ‘give the offender a written statement of the reasons for the decision’, once applied for.
The Reasons of the Delegate
The reasons of the Delegate, an Assistant Commissioner of Police, focus entirely upon the appellant’s prior criminal history. He summarised that in this way:[6]
I have considered the criminal history recorded against you in the Offender History Summary Report dated 2/4/2015 and annexed hereto. This criminal history discloses convictions for offences including but not limited to unlawful sexual intercourse, possession of child pornography, unlawfully on premises and failing to comply with your reporting obligations pursuant to ‘the Act’.
The Delegate then proceeded to record:[7]
You are a Serious Registrable Offender who is subject to the reporting obligations of the Child Sex Offenders Registration Act 2006 for the remainder of your life.
On the 20 June 1997 you were convicted of 7 counts of unlawful sexual intercourse that were committed between 1993 and 1995.
After reciting a series of offences as outlined below, he concluded:[8]
Based on the material presented to me I am satisfied that you should be subject to a Requirement to Wear or Carry a Tracking Device (GPS) pursuant to Section 66N of the Child Sex Offenders Registration Act 2006.
[6]    AB 8.
[7]    AB 9.
[8]    AB 10.
The notice of appeal filed on 13 May 2015 complains that the ‘decision was flawed in that it took into account irrelevant and non-factual considerations’ and that it was unreasonable.[9] Mr Tarasiuk seeks an order of the Court rescinding the decision of the Commissioner. The gravamen of the complaint on appeal taken by his counsel, Mr Bulloch, was that the bare recitation of the offences taken into account derived from an uncritical summary of police apprehension reports. It was argued in essence that the formal court records relating to these offences paint a very different picture.
[9] AB 2.
Statutory Context – Right of Appeal
The right of appeal is conferred by s 66N(5) of the CSOR Act. This facilitates an appeal against a decision of the Commissioner by a ‘serious registrable offender who is aggrieved by a decision’, to the Administrative and Disciplinary Division of the District Court. Jurisdiction to hear such appeals is conferred by s 8(3) of the District Court Act 1991 (SA). An appeal must be instituted within one month from the date of the receipt of the written statement of reasons: s 10B(4) of the CSOR Act. The appeal was instituted on 13 May 2015, and so it is within time.
The CSOR Act is otherwise silent as to the scope, procedures and powers of disposition of such appeals. Those matters are then controlled by ‘default’ by Part 6 – Division 2 ‘Administrative and Disciplinary Division’ of the District Court Act. These provisions combine to confer the power to conduct appeals ‘according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms’: s 42E(2)(b). They also serve to oblige the Court to ‘give due weight to the decision being appealed against and the reasons for it’, and constrain it ‘not to depart from the decision except for cogent reasons’: s 42E(3) thereof.
As I explained in Registrar of theVeterinary Surgeons Board (SA) v Mooney & The Veterinary Surgeons Board:[10]
[26]The adjective “cogent” describes an argument or reason clearly expressed and persuasive, compelling or convincing. There is no reason to read into the statute any more or less than it prescribes. In Project Blue Sky Inc v Australian Broadcasting Authority McHugh, Gummow, Kirby and Hayne JJ remind us that “the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have”.
[27]Obviously, then something more than mere disagreement with the decision below is required. Likewise unconstrained merits review would not be authorised. However providing “cogent reason” exists, the power to interfere is engaged. There is no threshold requirement to detect error, or to conclude the decision below was “unreasonable or plainly unjust … or that … a substantial wrong has in fact occurred”: House v The King, before intervention is justified. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) Brennan J suggested on example of a cogent reason was when a decision would “work an injustice in a particular case”.
[10] [2009] SADC 62, [26], [27] (footnotes omitted).
The powers of disposition are to affirm, rescind, to ‘substitute a decision that the Court considers appropriate’, or to remit the matter to the original decision maker for consideration ‘in accordance with any directions or recommendations of the Court’: s 42F District Court Act.
The Appeal Proceedings
For the purpose of making good his case, Mr Bulloch sought to contrast the content of the respective apprehension reports prepared by police for the alleged offences, with the court records pertaining to them. As the latter were not before the Delegate, he sought leave to present this material in the appeal process. Section 42E(1) of the District Court Act furnishes the power to ‘allow further evidence or material to be presented …’. As this course was not opposed by Mr Nguyen, Counsel for the Commissioner, it is appropriate to receive the material in question.
The primary submission made by Mr Nguyen was that there was no error in the decision-making process, so the decision of the Commissioner stood to be affirmed. His back-up position was that even on the basis of the additional material, the Commissioner’s decision was undoubtedly correct, so that if the court substituted its own decision, the result would be inevitably the same.
The material under review
It therefore becomes necessary to document the facts taken from the apprehension reports considered by the Commissioner, and to compare those with the new material in order to assess the merits of the case for the applicant. The offences in question were summarised by the Delegate, in passages numbered 1 to 9 for the purposes of this judgment.[11] The summary of the same events provided in the written submissions of the respondent, appear in each instance, immediately thereafter in italics in the following analysis.
[11] AB 4.
Passage one:
1. On the 20 June 1997 you were convicted of 7 counts of unlawful sexual intercourse that were committed between 1993 and 1995. The victim was a girl who was 13 years old when the offences commenced.
[22] On 20 June 1997, the appellant was convicted and sentenced in the District Court for seven counts of sexual intercourse against the same female child, contrary to s.49 of the CLCA. The offending occurred over 18 months (between July 1993 and February 1995), when the victim was aged between 14 years and 16 years of age and the appellant was aged between 20 and 22 years. The appellant had met the victim whilst he was a volunteer/assistant at the Christian Family Centre.[12]
The apprehension report suggests the victim of 13 years was ‘forced to engage in sexual acts … included unwillingly having sex toys, including vegetables forced into her vagina …’ and that she was ‘tied … up and forced … to engage in … intercourse whilst menacing her with a knife’.[13] The sentencing remarks of 20 June 1997, demonstrate the prosecution did not rely on allegations ‘of an unusual sordid nature or (any) threats of force’.[14]
[12] Source material before the decision maker at AB 34, 35, 37, 45-47, 85, 90 and 94.
[13] AB 85, 90.
[14] AB 104.
Passage two:
2. In February 2005 you were arrested after being found in possession of sexually explicit images of children. As a result of that arrest you entered into a bail agreement that included that you not be in the company of children under 18.
[24] On 17 March 2006, the appellant was convicted of two counts of possession of child exploitation material, contrary to s.63A of the CLCA, in relation to material found on his possession on 13 January 2005 and on 9 December 2005. The material contained numerous images of a child exploitation nature, a number of which (between 40 to 60 images) portrayed children as young as 12 months engaged in, and subjected to, various acts including sexual intercourse.
The apprehension report refers to a brown bag belonging to Mr Tarasiuk containing 47 compact discs and 35 floppy discs.[15] He was however sentenced on 17 March 2006 on the agreed basis that there were just 21 images displaying child pornography.[16]
[15] AB 55, 85.
[16] AB 127.
Passage three:
3. In September 2005 you breached that bail agreement by collecting an 8 year old child from school You were arrested and subsequently convicted for this offence in March 2006.
[25] On 17 March 2006, the appellant was convicted for a breach of a condition of his bail agreement, namely not to approach, communicate, directly or indirectly with any person under the age of 18 years unless in the company of one of his parents and or a parent if the child or children that he is with. In contravention of this condition, the appellant, on 26 September 2005, attended on his own at Portside Christian School to collect an eight year old female child, being the same child that he subsequently sent correspondence to in November 2005 in breach of his bail agreement. The offending occurred whilst the appellant was charged with possession of child exploitation material.
The antecedent report indicates this event comprised grooming behaviour towards an 8 year old girl,[17] by collecting her from school unaccompanied.[18] In contrast Mr Tarasiuk was sentenced on 17 March 2006 on the factual basis that the child was the daughter of his partner who was ‘only a short distance’ behind him.[19]
[17] AB 91.
[18] AB 120.
[19] AB 128.
Passage four:
4. On 12^th November 2005 you were arrested for breach of bail in circumstances where you sent correspondence to the aforementioned 8 year old child. You were convicted for this offence in November 2005.
[23] On 14 November 2005, the appellant was convicted for breach of a condition of his bail agreement, namely not to approach or communicate with any child under the age of 18 years. The offending relates to conduct which occurred in November 2005 when he sent a gift and correspondence to a female child aged years old enclosing his mobile number. The offending occurred whilst the appellant was charged with possession of child exploitation material.
The police material simply records that the girl ‘received a white bag and card from [Mr Tarasiuk] …’.[20] He was convicted and fined $200 for this offence, the court file notes ‘time in custody taken into account’.[21] It appears that he was arrested and taken into custody on 12 November and sentenced on 14 November 2005.[22] The sentencing records record this was indirect communication through a third person for ‘a birthday card and a birthday gift’.[23]
[20] AB 86.
[21] AB 28.
[22] AB 109 and AB 117 respectively.
[23] AB 110.
Passage five:
5. On the 9^th December 2005 you were arrested for a breach of Home Detention bail where you left your residential premises without permission. You were convicted for this offence in March 2006. At the time of your arrest a portable computer storage device was seized from you.
[26] On 29 March 2006, the appellant was convicted for a breach of Home Detention Bail on 9 December 2005 due to having left his residential premises without permission. At the time of his arrest, police seized a portable computer storage device worn by the appellant around his neck, which was subsequently found to contain child sexual exploitation material.
As the charge relating to this allegation was ultimately withdrawn it was not relied upon by the respondent to support the decision under appeal.[24]
[24] AB 28.
Passage six:
6. On the 12^th December 2005 you were arrested in relation to the possession of child exploitation material that had been located on your storage device. You were convicted for this offence in March 2006.
[24] On 17 March 2006, the appellant was convicted of two counts of possession of child exploitation material, contrary to s.63A of the CLCA, in relation to material found on his possession on 13 January 2005 and on 9 December 2005. The material contained numerous images of a child exploitation nature, a number of which (between 40 to 60 images) portrayed children as young as 12 months engaged in, and subjected to, various acts including sexual intercourse.
On this occasion police went to the home of Mr Tarasiuk and arrested him for ‘another matter’. A USB device was found on his person containing 50-100 child pornographic images.[25] Mr Tarasiuk was sentenced on 17 March 2006 for this and other offences on the basis that there were some 40-60 images found of children, images of the same description given in paragraph [24] of the respondent’s written submission. A combined sentence of six months was imposed, bearing in mind that Mr Tarasiuk had spent four months in custody.[26]
[25] AB 60, 86, 91.
[26] AB 127, AB 129.
Passage seven:
7. In August 2006 you were found in abandoned premises at Mansfield Park alone with a 5 year old girl. You were convicted for unlawfully on premises for that behaviour.
[27]. On 14 September 2006, the appellant was convicted for unlawfully being on premises on 1 August 2006. At the time of his arrest for this offence, the appellant was alone with a five year old female child in an abandoned house. Located in the appellant’s possession at the time of his arrest was a bag containing desensitising spray, massage cream, towels and children’s books.
The police brief discloses that Mr Tarasiuk took the daughter of a friend to a nearby park around lunch time. Police located them in the kitchen of an abandoned home several hours later where he was arrested for trespassing.[27] He was alleged to be carrying a backpack containing ‘sexual items’.[28] He was however sentenced for this on 14 September 2006 on the footing that the ‘fact of the matter nothing further has happened and nothing further is going to happen.[29]
[27] AB 70-71, 139, 191, 247.
[28] AB 91.
[29] AB 137.
Passage eight:
8. In December 2007 you were arrested for failing to comply with a reporting obligation pursuant to ‘the Act’ for not reporting to ANCOR within forty five (45) days of being notified. You have been convicted for that offence in June 2008.
[28] On 27 June 2008, the appellant was convicted for failing to comply with reporting requirements under the Act in relation to his failure in December 2007 to notify the Commissioner of South Australia Police within the prescribed time period (being 45 days) after being notified, pursuant to s.44 of the Act. Specifically, he failed, within the prescribed period, to make contact and register with the Australian National Child Offender Register (“ANCOR”) Unit of South Australia Police.
The core allegation here is that Mr Tarasiuk was served by Registered Post on 27 October 2007 with a notice obliging him to report within 45 days, which he failed to do as of 22 December 2007.[30] He told the police at his home on 22 December that he forgot about it and that he ‘still had time to register’.[31] For this he was fined $100 in the Port Adelaide Magistrates Court on 27 June 2008.[32]
[30] AB 76.
[31] AB 77.
[32] AB 96, 219.

Passage nine:
9. In May 2012 you were reported by police for failing to comply with a reporting obligation pursuant to the Act by not reporting for your annual review. You were convicted for that offence in November 2013.
[29] On 22 November 2013, the appellant was convicted for failing to comply with reporting requirements under the Act, namely to report to South Australia Police by 31 March 2012 for an annual review pursuant to s.15 of the Act.
In this instance Mr Tarasiuk was questioned on 1 May 2012 as to his failure to report for an obligatory annual review before 31 March 2012.[33] He admitted not having done so, and that he forgot about it.[34] For this he was convicted in the Adelaide Magistrates Court on 22 November 2013 and placed on a good behaviour bond for 12 months with conditions.[35]
[33] AB 81.
[34] Ibid.
[35] AB 96, 220.
In August 2014 a Paedophile Restraining Order was confirmed in the Adelaide Magistrates Court against you and it remains active. The letter of notice described the order in these terms:[36]
This order places conditions of restraint against you that include restraining you from loitering or being in the presence of any person under the age of 18 years unless they are in the company of their parent or legal guardian; viewing or participating in internet sites frequented by children including chat room, social networking programs and any site that child pornography can be obtained; loitering, without reasonable excuse, at or in the vicinity of a school, public toilet or place at which children are regularly present, whether or not children are actually present at the school, public toilet or place; loitering without reasonable excuse, at or in the vicinity of a playground, child care facility or child play park.
[30] On 15 October 2013, the Magistrates Court of South Australia issued to the appellant a Paedophile Restraining Order pursuant to ss.99A and 99C of the Summary Procedures Act 1921. On 20 August 2014, the Magistrates Court confirmed the Paedophile Restraining Order against the appellant. The basis on which that order was confirmed included the convictions against the appellant as detailed above in paragraphs 22 to 29 as well as his continued attendance at church functions involving young children. The terms of the order prohibits the appellant from:-
30.1 Loitering or being in the presence of any person under the age of 18 years unless they are in the company of their parent or legal guardian.
30.2 Viewing or participating in internet sites frequented by children including chat rooms, social networking programs and any site that at which child pornography can be obtained.
30.3 Loitering, without reasonable excuse, at or in the vicinity of a school, public toilet or place at which children are regularly present, whether or not children are actually present at the school, public toilet or place.
30.4 Loitering, without reasonable excuse, at or in vicinity of a playground, child care facility or child play park.
This order was not disputed by the appellant.[37]
[36] AB 5.
[37] AB 42-43.
Obviously there are differences in the gravamen in a number of the stipulated offences as conveyed in the apprehension material, as compared with various court records. These are particularly marked in the case of the number of pornographic images involved in the offence of February and on 9 December 2005. The circumstances with respect to the offences of September and 14 November 2005, as well as those in August 2006, proved to be relatively benign, taken in isolation.
The scope of the s 66N power
The power of the Commissioner of Police to require a person to wear or carry a tracking device, is cast in very wide terms by s 66N of the CSOR Act. No other particular state of satisfaction is required, such as a requirement to be in the ‘public interest’, or necessary for the ‘protection of the public’, for instance. Furthermore, there is no constraint on the nature or source of the material that may be considered in making the requirement. The sole precondition to the exercise of the power is that the person subjected to the requirement, is a ‘serious registrable offender’. The statutory definitions applicable are quoted above. There is no contest here that Mr Tarasiuk was other than of that description.
Nevertheless, the power is one hedged by the fundamental principles of natural justice. As Barwick CJ observed in Twist v Randwick Municipal Council:[38]
The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal….
This principle was taken to be settled law in Annetts v McCann.[39] Mason and Brennan JJ described the principle of procedural fairness in Kioa v West,[40] as one implied from legislation conferring decision making authority as conditioning the exercise of any statutory power which affect rights and interests.
[38] (1976) 136 CLR 106, 109.
[39] (1990) 170 CLR 596, 598.
[40] (1985) 159 CLR 550, 580-581 and 609 respectively.
This is particularly the case where, as in this matter, the exercise of the power effects a significant constraint on personal freedom and liberty. When the infringement of basic rights and freedoms is engaged, the common law furnishes a measure of protection from the erosion of civil liberties, subject to a clear and unambiguous legislative intention to curtail them: Coco v The Queen.[41]
[41] (1994) 179 CLR 427, 437.
Otherwise the power contained in s 66N of the CSOR Act, is an unconstrained and unfettered one. Be that as it may, neither the proper construction of the CSOR Act, or the breach of the principles of natural justice are in issue on this appeal. The question here is whether the circumstances disclose ‘cogent reasons’ to depart from the decision under appeal.
Appeal - analysis
No doubt the Commissioner (or his Delegate) would be well advised when considering decisions of this kind, to pay regard to court records rather than apprehension reports as a basis for ascertaining the facts. Mr Nguyen advised the court that this was now the case. It is not necessary to determine if the reliance on material of the latter kind as was the case here, amounts to ‘cogent reasons’ to interfere with the decision, because taking the most favourable view of all the events leading to the above charges, there was plainly more than enough material to sustain the decision requiring Mr Tarasiuk to wear an electronic tracking device. Indeed it was all but inevitable.
The underlying offences were in their cumulative effect serious enough. There is a disturbing element of persistency in his transgressions, even acknowledging the most serious is quite dated (1997). Even so, the offence of possessing child pornography committed on 9 December 2005 was considered by the sentencing Magistrate to be ‘particularly significant bearing in mind that you had already been charged with the earlier offence …’.[42] Moreover, his circumstances were the subject of relatively recent judicial consideration in October 2013 when the restraining order was made. It might be noted in this context that the requirement to wear a tracking device expires at midnight on 17 April 2017.
[42] AB 127.
Conclusion and orders
Despite the fact that the decision maker relied on somewhat inaccurate or outdated material in reaching the decision to require Mr Tarasiuk to wear an electronic tracking device, the material considered by him, taken at its most favourable to him, was sufficient enough to justify the decision and was therefore in no sense an unreasonable one.
The order of the court is therefore that the decision of the Delegate of the Commissioner of Police contained in the Notice dated 14 April 2015 is affirmed.
The parties are entitled to be heard on the question of costs, bearing in mind s 42G(2) of the District Court Act.