Tracey Joanne Darragh v Hugh Manion

[2013] ACTSC 80

TRACEY JOANNE DARRAGH v HUGH MANION
 [2013] ACTSC 80 (1 May 2013)

CRIMINAL LAW - Crimes (Child Sex Offenders) Act 2005 (ACT) – when is “first report” for s 37 made

APPEAL - Magistrates Court Act – review appeal – jurisdiction of Supreme Court

Crimes (Child Sex Offenders) Act 2005 (ACT)
Crimes (Child Sex Offenders) Regulation 2005 (ACT)
Crimes Act 1990 (ACT)
Crimes (Sentencing) Act 2005 (ACT)
Crimes (Sentencing Administration) Act 2005 (ACT)
Magistrates Court Act 1930 (ACT)
Magistrates Court Regulation 2009 (ACT)
Child Protection (Offenders Registration) Act 2000 (NSW)

Kaye v Siddiq (2013) ACT SC 207

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 41 of 2012

Judge:             Nield AJ
Supreme Court of the ACT

Date:              1 May 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 41 of 2012
AUSTRALIAN CAPITAL TERRITORY )          

TRACEY JOANNE DARRAGH

Plaintiff

v

HUGH MANION

Defendant

ORDER

Judge:  Nield AJ
Date:  1 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The Crown’s appeal be allowed.

1. The orders that Magistrate Dingwall made on 17 May 2012 be set aside.

1. The offence that the respondent failed to take all reasonable steps to report to police at Woden Police Station not later than 30 June 2011 as required by section 37(1) of the Crimes (Child Sex Offenders) Act 2005 (ACT) is proved.

1. The proceedings be remitted to the Magistrates Court for the determination of a penalty for the offence.

1. The Crown pay the respondent’s costs of the appeal, such costs to be agreed between the parties, or, if not agreed, to be assessed by the Registrar on a party-party basis.

1. The appellant is the Crown, represented by the ACT DPP.  The Crown has appealed from the dismissal of a charge brought by the ACT DPP against the respondent for the respondent’s failure to report to Woden Police Station in the ACT by the end of June 2011 in accordance with his reporting obligations under the Crimes (Child Sex Offenders) Act 2005 (ACT).
2. The respondent is Mr Hugh Geoffrey Manion.
3. On 4 June 2008 the respondent was convicted of a charge of engaging a person above the age of 10 years but under the age of 16 years in sexual intercourse contrary to section 55(2) of the Crimes Act 1990 (ACT) and he was sentenced to imprisonment for six months with execution of the sentence suspended pursuant to section 12(2) of the Crimes (Sentencing) Act 2005 (ACT) on his entering into an undertaking to comply with the conditions of a good behaviour order pursuant to sections 85 and 86 of the Crimes (Sentencing Administration) Act 2005 (ACT) for 18 months. 
4. The offence of engaging a person above the age of 10 years but under the age of 16 years in sexual intercourse is a registrable offence for the purposes of the Crimes (Child Sex Offenders) Act (see section 10(1)(a) and Schedule 1 item 10).
5. As a consequence of being convicted of the offence of engaging a person above the age of 10 years but under the age of 16 years in sexual intercourse, the respondent became a registrable offender within the meaning of the Crimes (Child Sex Offenders) Act (see section 8(1)(a)).
6. A purpose of the Crimes (Child Sex Offenders) Act is “to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time” (see section 6(1)(a)) and two requirements of the Act are that “certain offenders who are sentenced for registrable offences must report particular personal details for inclusion in a Child Sex Offenders Register” (see section 6(2)(b)) and must “keep their details up to date and report their details annually” (see section 6(2)(d)).
7. On 4 June 2008 the respondent was served with a notice, called a Reporting Obligations Notice, by Mr Chris Winslade, the Deputy Registrar of the Supreme Court.  This notice informed the respondent that he “must report to the ACT Child Sex Offenders Registry within seven days and comply with his reporting conditions”; that “to arrange a time to report he must contact the ACT Child Offenders Registry”; and that he “must report in person to the ACT Child Sex Offenders Registry when (a) reporting for the first time upon sentence or release from custody; and (b) making [his] annual report”.  The notice was signed by the respondent on 4 June 2008 as having been served upon him.
8. The Reporting Obligations Notice signed by the respondent on 4 June 2008 bears the handwritten endorsement “Tony Marmont report in seven days to Mascot Police Station”.  It seems that Detective Sergeant Anthony Marmont made this endorsement on the notice after being contacted by Ms Christine Lancaster of ACT Corrections, who informed him that the respondent was then residing at an address in Mascot in New South Wales.  It seems also that the respondent was told by Detective Sergeant Marmont that he could report to Mascot Police Station rather than to Woden Police Station.
9. On either 5 or 15 June 2008 - both dates appear on the notice - but more likely on 5 June 2008 the respondent attended at Mascot Police Station and was issued with a Form 3 headed “Notice issued by Police Officer to Registrable Person Pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW)” by a police officer at Mascot Police Station. The notice was “completed” by Detective Sergeant Anastasia Loughman of Mascot Police Station on 15 June 2008.
10. On 16 June 2008 the respondent’s personal information was entered in the Child Protection Register of the New South Wales Police Force and a Form 4 headed “Child Protection Register Acknowledgement Form” was issued to the respondent.  This notice was signed by the respondent on 16 June 2008 in the presence of Detective Sergeant Loughman.
11. On 2 August 2008 the respondent changed his place of residence from an address in Mascot in New South Wales to an address in Yarralumla in the ACT.
12. On 7 August 2008 the respondent attended at Woden Police Station and he registered as required by section 24 of the Crimes (Child Sex Offenders) Act. He was interviewed by Detective Senior Constable Robert Albertson to obtain his details for the purposes of the Child Sex Offenders Register. Section 24 of the Act provides that

24 Offence—offender entering ACT must report

A registrable offender commits an offence if—

(a) the offender enters the ACT, and remains in the ACT for 7 or more consecutive days (excluding days in government custody); and

(b) the offender has not previously reported the offender’s personal details to the chief police officer; and

(c) the offender does not take all reasonable steps to report the offender’s personal details, in person, to the chief police officer at an approved reporting place—

(i) if the offender is not in government custody on the day the offender has been in the ACT for 7 consecutive days (excluding days in government custody)—within 7 days after that day (excluding days in government custody); or

(ii) if the offender is in government custody on the day the offender has been in the ACT for 7 consecutive days (excluding days in government custody), and later stops being in government custody in the ACT—within 7 days after the day the offender stops being in government custody (excluding days in government custody); or

(iii) if the offender leaves the ACT (other than in government custody) within the 7 days mentioned in subparagraph (i) or (ii)—before leaving the ACT; and

(d)        the offender’s reporting period has not ended before the end of

the period within which the report must be given.

Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

I comment that, notwithstanding that he had not reported in person as required by the Act, and that he had left the ACT, the respondent remained a registrable offender and he was required to report on returning to the ACT.
(1) the Crimes (Child Sex Offenders) Act required the respondent to report “at the approved reporting place”; that is, Woden Police Station (see regulation 10(1) of the Crimes (Child Sex Offenders) Regulations) within seven days of being convicted of the offence or, if he were to leave the ACT within seven days of being convicted of the offence, before he left the ACT;
(2) the reporting on either 5 or 15 June 2008 (see paragraph 9 above) or 16 June 2008 (see paragraph 10 above) was not a reporting for the purposes of the Crimes (Child Sex Offenders) Act; and
(3) the first reporting, for the purposes of the Crimes (Child Sex Offenders) Act, occurred on 7 August 2008 (see paragraph 12 above) with the consequence that the respondent’s annual reporting was required by the end of August of each year.
Accordingly, he dismissed the charge and ordered that the informant - that is, the Crown - pay the respondent’s costs to be agreed or, if not agreed, to be assessed by the Registrar in accordance with regulation 4 (2) and (3) of the Magistrates Court Regulation 2009 (ACT).

13. On 5 June 2009 the respondent attended at Woden Police Station for the purpose of “making an annual report”, one of the reporting obligations of a registrable offender.  He was interviewed by Detective Senior Constable Albertson in the presence of Detective Sergeant Marmont to obtain his up to date details for the purposes of the Child Sex Offenders Register.  The interview was recorded on video and audio tapes. 
14. On 11 September 2009 the respondent attended again at Woden Police Station.  It seems that he had left the ACT some time after 5 June 2009 and had returned to the ACT some time before 11 September 2009.  He was interviewed by Detective Senior Constable Albertson to obtain his up to date details for the purposes of the Child Sex Offenders Register.
15. On 8 June 2010 the respondent attended again at Woden Police Station for his “annual report”.  Again he was interviewed by Detective Senior Constable Albertson in the presence of Detective Sergeant Marmont to obtain his up to date details for the purposes of the Child Sex Offenders Register.  This interview, like the one on 5 June 2009, was recorded on video and audio tapes.
16. An appointment was made for the respondent to attend at Woden Police Station on 11 June 2011 for his “annual report” to Detective Senior Constable Albertson but he failed to keep the appointment.  He later, on a date not disclosed in the evidence, telephoned Detective Senior Constable Albertson and left a voice message for him that he had been “ill”. 
17. On 5 July 2011 the respondent was arrested by Detective Senior Constable Tracy Darragh and Constable Paul Maher for having failed to attend Woden Police Station by the end of June 2011 for his “annual report”.  He was taken to the ACT Watch House in Canberra.  He was released from custody on the morning of 6 July 2011.
18. Later on 6 July 2011 the respondent attended at Woden Police Station for his annual report.  He was interviewed by Detective Senior Constable Albertson in the presence of Detective Sergeant Marmont to obtain his up to date details for the purposes of the Child Sex Offenders Register.
19. On 3 August 2011 a summons was issued out of the Magistrates Court directed to the respondent requiring him to appear before a magistrate in the Magistrates Court on 2 September 2011 to answer the charge that “on 1 July 2011 [he], being a registrable child sex offender, failed to take all reasonable steps to report his personal details in person to the Chief Police Officer at an approved reporting place as required each year, and he failed to take all reasonable steps to make a report for a year before the end of his reporting month in the year when the anniversary of the day the offender first reported under the Crimes (Child Sex Offenders) Act 2005 or a corresponding law falls and his reporting period has not ended before the end of his reporting month in the year”. This is an offence contrary to section 37(1)(a) and (b) of the Crimes (Child Sex Offenders) Act. I comment, without deciding, that this charge may well be bad for duplicity.
20. Accordingly, on 2 September 2011 the respondent appeared, by his legal representative, before a magistrate in the Magistrates Court, and the proceedings were stood over to 22 September 2011.
21. Then on 22 September 2011 the respondent, with his legal representative, appeared again before a magistrate in the Magistrates Court and he pleaded not guilty to the charge, and the proceedings were stood over to 14 May 2012 for hearing.
22. On 14 May 2012 the respondent, with his legal representative, appeared before Magistrate Dingwall in the Magistrates Court on the hearing of the charge.  The Crown prosecutor tendered the Crown’s brief of evidence, which was admitted without objection as Exhibit P1, and the Form 4 document, which is the document referred to in paragraph 10 above, which was admitted without objection as Exhibit P2.  After hearing submissions from the Crown prosecutor and the respondent’s legal representative, Magistrate Dingwall stood over the proceedings to 17 May 2012 for his judgment.
23. On 17 May 2012 Magistrate Dingwall gave his judgment.  He rejected the submissions of both the Crown prosecutor and the respondent’s legal representative and, on an issue raised by himself, and without inviting submissions from either the Crown prosecutor or the respondent’s legal representative, concluded that:

24. On 5 June 2012 the DPP filed the Crown’s Notice of Appeal seeking orders that:

(1)The decision of Magistrate Dingwall be set aside; and either

(2)The Supreme Court decide whether the charge has been proved; or

(3)The Supreme Court remit the proceedings to the Magistrates Court to be decided according to law.

25. The Crown’s grounds of appeal are that:

(1)Magistrate Dingwall erred in dismissing the charge; and

(2)Magistrate Dingwall’s decision should not in law have been made.

I think that the first ground of appeal is the same as the second ground of appeal, but I realise, from section 219D of the Magistrates Court Act 1930 (ACT), that the grounds relied upon by the DPP are the grounds specified in the Act. I infer, however, from the Crown prosecutor’s written submissions, that the ground relied upon to base the appeal is that Magistrate Dingwall erred in his interpretation of section 37 of the Crimes (Child Sex Offenders) Act.

26. On 8 April 2013 the Crown filed its written submissions, and on 11 April 2013 the respondent filed his written submissions.
27. On 22 April 2013 the Crown’s appeal came on for hearing before me.  I heard submissions from both the Crown prosecutor and counsel for the respondent, after which I stood over the hearing to a date to be fixed for my judgment.
28. I have considered, and I do not see any need to repeat here, the law applicable to a review appeal by the Crown pursuant to section 219B of the Magistrates Court Act in Kaye v Siddiq (2013) ACT SC 207 (26 March 2013), albeit that that case related to an appeal pursuant to section 219B(1)(g) against a sentence imposed by a magistrate on the ground of manifest inadequacy pursuant to section 219D(2), whereas the present case is an appeal pursuant to section 219B(1)(a) against a dismissal of an information by a magistrate on the ground of error of law pursuant to section 219D(a).
29. The Crown and the respondent agree that the starting point is section 23 of the Crimes (Child Sex Offenders) Act, which provides that:

23 Offence—offender must report after sentencing
A registrable offender commits an offence if—
(a)        the offender is sentenced in the ACT for a registrable offence; and

(b) the offender does not take all reasonable steps to report the offender’s personal details, in person, to the chief police officer at an approved reporting place—

(i) if the offender is not in, or does not begin, full-time government custody on the day the offender is sentenced for the registrable offence—within 7 days after the day the offender is sentenced for the registrable offence (excluding days in government custody); or

(ii) if the offender is in, or begins, full-time government custody on the day the offender is sentenced for the registrable offence and later stops being in full-time government custody in the ACT—within 7 days after the day the offender stops being in full-time government custody (excluding days in government custody); or

(iii) if the offender leaves the ACT (other than in government custody) within the 7 days mentioned in subparagraph (i) or (ii)—before leaving the ACT; and

(c) the offender’s reporting period has not ended before the end of the period within which the report must be given.

Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

30. The effect of section 23 of the Act in the present case is clear. As he was not in full-time government custody on 4 June 2008, which was the day on which he was sentenced for the registrable offence (see paragraphs 3 and 4 above), the respondent was required to report in person to the Chief Police Officer at Woden Police Station (see regulation 10(1) of the Crimes (Child Sex Offenders) Regulation) within seven days after 4 June 2008, that is, on or before 11 June 2008, or, if he were to leave the ACT within seven days after 4 June 2008, that is, on or before 11 June 2008, before he left the ACT. Thus, as he failed to report as required to the Chief Police Officer at Woden Police Station on or before 11 June 2008, the respondent committed an offence against section 23 of the Act.
31. As noted, the charge brought against the respondent is based upon section 37 of the Crimes (Child Sex Offenders) Act, which provides that:

37 Offence—offender must report annually

(1)        A registrable offender commits an offence if—

(a)         the offender does not take all reasonable steps to—

(i) report, each year, the offender’s personal details, in person, to the chief police officer at an approved reporting place; and

(ii) if the offender has been in government custody since the offender last reported under this Act—also report to the chief police officer details of when and where the custody happened; and

(b) the offender does not take all reasonable steps to make a report             for a year before the end of the month (the offender’s reporting month) in the year when the anniversary of the day the offender first reported under this Act or a corresponding law falls; and

(c) the offender’s reporting period has not ended before the end of the offender’s reporting month in the year.

Maximum penalty: 500 penalty units, imprisonment for 5 years or both.

(2) For subsection (1) (c), if a registrable offender’s reporting period has ended, but the offender is then required to report again under division 3.2.2 (When registrable offender must make new initial report of personal details), the day when the offender first reported is taken to be the day when the offender first reported for the current reporting period.

32. The Crown prosecutor submitted that “the ultimate question for determination by the Supreme Court, in deciding whether the magistrate erred, is what, precisely, was the respondent’s first applicable reporting date and, therefore, what was the appropriate end date for his reporting period under section 37 of the Act”, and the Crown prosecutor answered this question by submitting that “whilst the respondent’s first report should have been in the ACT, not NSW, his NSW report under the NSW Act constituted the first report for the purposes of section 37(1)(b). Once the respondent reported in New South Wales the clock ticked from that point onwards. The report on 16 June 2008 triggered a reporting obligation to report annually by the end of June regardless of whether he was in NSW or ACT.”
33. The Crown prosecutor submitted that the respondent committed an offence against section 37(1) of the Act because he, being a registrable offender, did not take all reasonable steps to make a report for a year, that being 2011, before the end of the month, that being June, in the year of the anniversary of the day, that being 16 June 2008, when the offender first reported under the Act or a corresponding law, that being the Child Protection (Offenders Registration) Act 2000 (NSW).

32. The dictionary to the Act defines “corresponding law” to mean “a law, or a provision of a law, of a foreign jurisdiction that (a) provides for people who have committed particular offences to report in that jurisdiction information about themselves, and to keep that information current for a time, and (b) is prescribed by regulation for this definition”.  Regulation 19 of the Crimes (Child Sex Offenders) Regulation 2005 prescribes the Child Protection (Offenders Registration) Act 2000 (NSW) to be a prescribed law.
33. The Crown prosecutor submitted that, although he had not reported on or before 11 June 2008 in the ACT as required by section 23 of the Act, as he had reported on 16 June 2008 at Mascot Police Station in New South Wales pursuant to the Child Protection (Offenders Registration) Act, the respondent had “first reported” under “a corresponding law” and, therefore, the respondent’s “reporting month” was June, and the “end of the month” was 30 June, with the result that his report to Detective Senior Constable Albertson on 6 July 2011 (see paragraph 18 above) was a late report.
34. Section 3A(1) of the Child Protection (Offenders Registration) Act defines “a registrable person” to mean, relevantly, “a  person whom a court has sentenced in respect of a registrable offence, and includes a corresponding registrable person”.  Section 3 of the Act defines “court” to include “a court (however described) of a foreign jurisdiction”, “foreign jurisdiction” to mean “a jurisdiction other than New South Wales including jurisdictions outside Australia”, a “registrable offence” to include “an offence that is (a) a class 1 offence”, and “a class 1 offence” to include “an offence that involves sexual intercourse with a child”.  Section 3C of the Act defines “a corresponding registrable person” to mean, relevantly:

3C Corresponding registrable persons

(1) A "corresponding registrable person" is a person who:

(a) had at any time been in a foreign jurisdiction and at that time had been required to report to the corresponding registrar, and

(b) would, if the person were currently in that jurisdiction, still be required to report to that corresponding registrar.

(2) Subject to the regulations, a person is a corresponding registrable person under subsection (1) even if the offence in respect of which he or she is required to report in the foreign jurisdiction is not a registrable offence for the purposes of this Act.

(3) A "corresponding registrable person" includes a person who:

(a) has been found guilty of an offence under a law of a foreign jurisdiction that is a Class 1 offence or a Class 2 offence for the purposes of this Act, and

(b) as a consequence of having been found guilty of that offence has been required to report in that jurisdiction information about himself or herself to a person or body exercising functions substantially similar to those of the Commissioner of Police under this Act, and to keep that information current for a particular period, and

(c) would, if the person were currently in that jurisdiction, still be required to report that information.

It is to be noted that both subsections (1) and (3) of section 3C refer to the fact that the person “has been required to report” in a foreign jurisdiction, not that the person has reported in that jurisdiction.  It is beyond argument that the respondent was “required to report” in the ACT.

37. Accordingly, the respondent was a “registrable person” for the purposes of the Child Protection (Offenders Registration) Act because he fell within the definition of registrable person in section 3A(1) of the Act, and, furthermore, he was “a corresponding registrable person” for the purposes of that Act because he fell within the definition of corresponding registrable person in section 3C of the Act.
38. Section 9A of the Child Protection (Offender Registration) Act requires a “registrable person” to report his or her “relevant personal information”, as detailed in section 9 of the Act, to the Commissioner of Police as follows:

(1)a registrable person who enters New South Wales from a foreign jurisdiction and who has not previously been required under this Act to report his or her relevant personal information to the Commissioner of Police - within seven days after entering and remaining in New South Wales for 14 or more consecutive days, not counting any days spent in government custody; and

(2)a corresponding registrable person who has not previously reported the person’s relevant personal information to the Commissioner of Police and who is in New South Wales on the date on which the person becomes a corresponding registrable person - within seven days after the person becomes a corresponding registrable person or seven days after the person ceases to be in government custody, whichever is the later.

In my view the respondent became a “corresponding registrable person” on the day on which he left the ACT and entered into New South Wales.

39. Therefore, as he was both a “registrable person” within section 3A(1) of the Child Protection (Offenders Registration) Act and a “corresponding registrable person” within section 3C subsection (1) or subsection (3) of the Act, the respondent was required to report his personal information, as detailed in section 9 of the Act, in person, as required by section 12A(1) of the Act, to a police officer, as specified in section 12A(3) of the Act, at a police station in the locality in which he was currently residing, as specified in section 12(1)(a) of the Act, within the period of time specified in section 9A(1) of the Act.  As previously noted, the respondent reported to Mascot Police Station in New South Wales on 5 June 2008 (see paragraph 9 above) and his personal information was entered in the Child Protection Register of the New South Wales Police Force on 16 June 2008 (see paragraph 10 above).
40. So, to return to the submissions of the Crown prosecutor, this question remains: Was the respondent’s reporting to Mascot Police Station on 16 June 2008 a “first report” for the purposes of section 37(1)(b) of the Crimes (Child Sex Offenders) Act?
41. The Crown prosecutor submitted that the respondent “can only be regarded as having “first reported” once.  That first report was under the ACT Act or under a corresponding law.  It is not the case that there is a “second” or “subsequent” first report comprehended (sic – contemplated) by the legislation.”
42. The respondent, without really developing an argument, submitted that Magistrate Dingwall’s decision, that the Crimes (Child Sex Offenders) Act did not allow for a first report to be made outside the ACT, was correct.
43. I agree with the Crown prosecutor that, notwithstanding that he failed to report to police at Woden Police Station not later than 11 June 2008, the respondent’s report to police at Mascot Police Station on 16 June 2008 was the “first report” for the purposes of section 37(1)(b) of the Crimes (Child Sex Offenders) Act. Accordingly, the respondent’s “reporting month” is June, and the end of that month is 30 June. Perhaps this result was not one contemplated by the draftsmen of the legislation, but it is one which flows from the interpretation of section 37 of the Act.
44. In the result, I make the following orders.

(1)I allow the Crown’s appeal;

(2)I set aside the orders that Magistrate Dingwall made on 17 May 2012;

(3)I find the offence, that the respondent failed to take all reasonable steps to report to police at Woden Police Station not later than 30 June 2011 as required by section 37(1) of the Crimes (Sex Offenders) Act, to be proved;

(4)I remit the proceedings to the Magistrates Court for the determination of a penalty for the offence;

(5)I order that the Crown pay the respondent’s costs of the appeal, such costs to be agreed between the parties, or, if not agreed, to be assessed by the Registrar on a party-party basis.

I certify that the preceding forty four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Associate:

Date:   7 May 2013

Counsel for the applicant:  S Gul
Solicitor for the applicant:  Director of Public Prosecutions
Counsel for the respondent:   A Doig
Solicitor for the respondent:  Paul Edmonds and Associates
Date of hearing:  22 April 2013
Date of judgment:  1 May 2013