Tua v Commissioner of NSW Police

[2021] NSWSC 1159

Supreme Court

New South Wales

Medium Neutral Citation:

Tua v Commissioner of NSW Police [2021] NSWSC 1159

Hearing dates:

Decided on the papers

Date of orders:

10 September 2021

Decision date:

10 September 2021

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

See orders set out at [22]

Catchwords:

CRIME – appeal and review – judicial review – order of Local Court declaring plaintiff registrable person under Child Protection (Offenders Registration) Act 2000 – order quashed – defendant acknowledged errors by Magistrate and that relief sought should be granted – Court satisfied of jurisdictional error - consequential orders

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Supreme Court Rules 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

O’Neill v Commissioner of Police [2020] NSWSC 1805

Category:

Principal judgment

Parties:

Felix Tua (Plaintiff)
Commissioner of NSW Police (First Defendant)
Local Court of New South Wales (Second Defendant)

Representation:

Counsel:
P Coady / A Bhasin (Plaintiff)
J Davidson (First Defendant)

Solicitors:
Legal Aid NSW (Plaintiff)
Crown Solicitor’s Office (NSW) (First Defendant)
Crown Solicitor’s Office (NSW) (Second Defendant)

File Number(s):

2021/207940

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Criminal

Date of Decision:

28 July 2020

Before:

Magistrate Bartley

File Number(s):

2020/189553

Judgment

1. These proceedings were commenced by Summons filed on 16 July 2021, (followed by an Amended Summons filed on 18 August 2021), seeking judicial review of an order made in the Local Court at Newtown on 28 July 2020 that Felix Tua “comply with the reporting obligations under the Child Protection Offenders Registration Act 2000 (NSW)” (“CPOR Act”).

2. There was no controversy between the parties that the order made on 28 July 2020 was infected with jurisdictional error and should be determined by this Court to be void and of no effect and should be quashed.

3. Nor was there any controversy that consequential orders and sentencing decisions that were made after that order were affected by the jurisdictional error. Accordingly, the consequential relief sought should be allowed and Mr Tua’s remaining matters be returned to the Local Court for resentencing.

4. The matter was able to be dealt with expeditiously. Focussed written submissions of counsel, Mr Coady, combined with a thorough and informative affidavit of Mr Fernandez plainly demonstrated the merits of the issues raised.

5. Proposed Consent Orders were provided to Chambers on 9 September 2021 and a Court Book on 10 September 2021. Having considered the affidavit material and written submissions, I made those orders in Chambers on 10 September 2021 without the need for a formal hearing. These are my reasons for making those orders.

Background facts and proceedings in the Local Court

6. Mr Tua relied upon the affidavit of Dean Fernandez sworn on 9 September 2021. That affidavit outlined Mr Tua’s criminal and sentencing history, and provided explanation as to the cause of the delays in filing the Summons which I accept. I have no difficulty in granting the necessary extension(s) of time.

7. Mr Tua is a 30 year old man who was born in the Cook Islands. He immigrated to Australia with his father and siblings in 2013. He has diagnosed mental health problems including schizophrenia complicated by polysubstance abuse.

8. He had been in trouble with the police often for minor but repeated offending. Some incidents of behaviour were collected to form the basis for the application under the CPOR Act made by the Police, in his absence, at Newtown Local Court on 28 July 2020.

9. The bases for the application were not necessarily the problem. The problem arose from the way the learned Magistrate dealt with the application because he failed to make any reference to mandatory considerations before making the order.

10. The purpose and relevant provisions of the CPOR Act and relevant authorities were helpfully and accurately summarised in Mr Coady’s submissions:

“[4] The purpose and effect of the CPOR Act was considered in detail by Latham J in KE (by his next friend and tutor NE) v Commissioner of Police & Ors [2018] NSWSC 941. The Act imposes onerous and extensive reporting obligations upon “registrable persons”, subjects them to intensive monitoring by the police for a lengthy period of time, and restricts their employment and freedom of movement under other legislation: at [9], [10], [12]. The policy behind the registration of offenders is aimed at recidivist offenders who habitually relapse into the commission of offences against children, post-sentencing: [23].

[5] The objects of the CPOR Act are set out in section 2A as being:

(a)   to protect children from serious harm (including physical and psychological harm caused by physical or sexual assault), and

(b)    to ensure the early detection of offences by recidivist child sex offenders, and

(c)   to monitor persons who are registrable persons, and

(d)   to ensure that registrable persons comply with this Act.

[6] Through the definitions of “registrable person” and “registrable offence”, the reporting obligations imposed under the Act arise automatically in respect of persons committing certain serious offences against children (Class 1 or Class 2 offences), or upon the making of an order by the Local Court after a person is sentenced for other offences.

[7] Section 3A relevantly defines a “registrable person” as being a person “whom a court has at any time (whether before, on or after the commencement of this section) sentenced in respect of a registerable offence.” A registrable offence is defined in section 3 to mean:

(a) a Class 1 offence, or

(b) a Class 2 offence, or

(c) an offence that results in the making of a child protection registration order.

[8] Class 1 offences are defined in section 3(1) and include murder, where the victim is a child. Other Class 1 offences are sexual offences or offences of violence committed against a child. Class 2 offences are manslaughter, where the victim is a child and a range of sexual and violent offences against children, generally of lesser seriousness than Class 1 offences.

[9] Section 3E of the CPOR Act provides the Local Court with the power, on application by the Commissioner, to order a person who has not committed a Class 1 or Class 2 offence to comply with the reporting obligations under the Act. Consistent with the onerous and extensive obligations imposed on “registrable persons”, the Act sets a high threshold for making an order where a person has not committed a prescribed Class 1 or Class 2 offence. Section 3E relevantly provides:

(1) The Local Court may, on application by the Commissioner of Police, order a person who has been sentenced by a court of New South Wales in respect of an offence that is not a Class 1 offence or a Class 2 offence to comply with the reporting obligations under this Act.

(2) The Local Court may make an order under this section only if—

(a)   the Court is satisfied that the person poses a risk to the lives or sexual safety of one or more children, or of children generally… (underlining added)

[10] Whether a person poses a risk to the lives or sexual safety of children is to be determined in accordance with s. 3AA, which relevantly provides:

(1) For the purposes of this Act, a person poses a risk to the lives or sexual safety of one or more children, or of children generally if there is a risk that the person will engage in conduct that may constitute a Class 1 offence or a Class 2 offence against or in respect of a child or children.

…

(3) A court is to take the following into account in determining whether a person poses a risk to the lives or sexual safety of one or more children, or of children generally—

(a)    the seriousness of each registrable offence committed by the person,

(b)   the age of the person at the time each of those offences was committed,

(c)    the age of each victim of each of those offences at the time that the offence was committed,

(d)    the seriousness of any other offences committed by the person,

(e)   the impact on the person if the order being sought is made compared with the likelihood that the person may commit a registrable offence,

(f)   any other matter that the court considers to be relevant. (underlining added)

[11] Section 19(1) of the CPOR Act provides that the Commissioner is to establish and maintain a Child Protection Register. Under s. 19(2) extensive personal and private details of “registrable persons” are required to be stored on the Register.

[12] As Fagan J noted in O’Neill v Commissioner of Police [2020] NSWSC 1805 at [9]:

By force of Pt 3 of the Offenders Registration Act, comprising ss 4-18A, the registrable person comes under onerous obligations to report a long list of personal particulars and a host of other data as specified in s 9. The initial report must be made by the registrable person to police within seven days of the order under s 3E being pronounced: s 9A. The very extensive personal information must be reported again annually (s 10) for eight years (s 14A(1)(a)). Reporting is required to be made at a police station and police may take fingerprints and photographs of the registrable person: ss 12, 12E, 12F. Changes of particulars must be reported when and if they occur (s 11) and some changes must be reported in person (s 12A). The registrable person must notify police of any intended travel outside New South Wales if it is to exceed 14 days and must notify intended travel outside Australia of any duration: s 11A. The Commissioner of Police may notify the Australian Federal police of any intended travel outside Australia (s 11E) and, pursuant to Commonwealth legislation, overseas travel may be forbidden. Section 16C gives police the power to enter and inspect the registrable person’s residence without prior notice to verify any personal information that has been reported under s 9.

[13] Section 17(1) makes it an offence for a registrable person to fail to comply with a reporting obligation without reasonable excuse, subject to a maximum penalty of 5 years imprisonment or 500 penalty units or both.”

11. Returning to the Application made by the Police against Mr Tua, the approach and underlying offences were again helpfully and accurately set out in Mr Coady’s submissions, together with the salient aspects of his Honour’s consideration of the application:

“[14] By an application dated 17 June 2020 to the Local Court at Newtown the Commissioner sought a “Child Protection Registration Order” against Mr Tua pursuant to s 3E of the CPOR Act (the Application). The Application was signed by Constable James Oxley and purportedly served on the plaintiff on 24 June 2020.

[15] The Application identified the “relevant charge” as being H74418322 for “stalk/intimidate fear physical harm etc” (an offence against s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). That is not a Class 1 or Class 2 offence under the CPOR Act. The application then sets out details of that offence, which appear generally to be based on the Police Facts, but contain additional information (such as details of an interview said to have taken place with Mr Tua). The offence involved Mr Tua following a 12-year-old girl from a train onto the street, and making comments that “for a child her body is very good” and that she would be a “hot woman”. He tried unsuccessfully to engage the victim in a conversation about her school and offer her career advice. When she raised her mobile phone to her ear to dissuade him, he was said to have become angry, taken “an unknown sharp shiny object from his pocket” and continued to follow the victim. The victim ran from the location and lost sight of the plaintiff. Mr Tua pleaded guilty to that charge and was convicted and sentenced on 4 June 2020 to a six-month community correction order.

[16] Under a section entitled “History”, the Application also contained various assertions regarding Mr Tua including based upon (it appears) police intelligence reports. These include (in summarised form):   

10.09.2014 I59357148 – TUA attended Campsie Library

On 10 September 2015 the plaintiff was a passenger in a car when stopped by police. The driver was a “known paedophile…who has previously been charged in relation to serious, registrable, sexual offences against children”. Police believed “that the driver may be imparting child predatory behaviour tactics upon the respondent.” Police later attended Campsie Police Station and were informed that both the plaintiff and the driver had been at the library, and the driver had previously been banned for a period of one month from attending the library and being in the children’s section.

H 75462373 – Behaving in an offence manner

On 27 May 2020 the plaintiff attended Campsie railway station where he was observed to be in a drug affected state. He pulled his pants down exposing his underwear, before touching his crotch and then pulling his pants back up. A train approach and the plaintiff again pulled his pants up and down three times. He then boarded the train. He got off the train at Lakemba station and against pulled his pants down and walked along the station. A woman was pushing a pram with a young child. The plaintiff did not engage with the woman or the child. He continued to pull his pants down and up.

On arrest he was interviewed by police. He admitted his conduct and said that he “misses his girlfriend and does not know where she is” and that is why he pulled his pants down.

[The plaintiff pleaded guilty to offences contrary to s. 4(1) of the Summary Offences Act 1988 (NSW) of behaving in an offensive manner in a public place, and ss. 50(c) and 77A(1) of the Passenger Transport (General) Regulation 2017 (NSW) of wilfully interfering with the comfort of others and travelling without a valid ticket respectively. His bail report indicates that he was convicted with no other penalty under s. 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).]

I 75609779

On 15 June 2020 police saw the plaintiff attempting to talk to various members of the public. Police conducted a search and located “a small, heavily filtered, polaroid photograph of a young female. The female appeared to be approximately 15-20 years of age.” That Plaintiff told police that the young lady in the photograph “was a girl who wants to fuck me.”

E74838207

On 15 June 2020 police responded to a call from the public in relation to a male chasing a female jogger along the footpath in Marrickville. Police were unable to locate the female jogger. When questioned the plaintiff said that the woman was “his friend.”

12. None of those offences are Class 1 or Class 2 offences as specified in the CPOR Act.

13. Consequently, what was required before any order could be made was a consideration under s 3AA as it applied to Mr Tua.

14. Instead, what occurred was rather perfunctory, as accurately set out in Mr Coady’s submissions:

“[17] On 28 July 2020 the Application came before Magistrate Bartley at Local Court at Newtown. The plaintiff was not in attendance. The matter was called a number of times and then the Application was granted in the plaintiff’s absence. The following excerpt from the transcript sets out the totality of the Magistrate’s reasons for making the order:

HIS HONOUR: …H ending in 373, okay I see. That’s the facts of it, okay I’ll just read those. More sexualised offences in public, including with the view of women and a mother pushing a pram or a woman pushing a pram with a young child. There’s exhibitionism. All right so I bear that in mind. So in the application – so we’ve got that matter now before the Court properly H ending 373. As the offence H ending 322 I’ve read about that. And the interview where he says “He can’t help himself,” from misconducting himself to girls. I infer that means girls under 18. And even admitted to inappropriate conduct to a girl about five. And then there’s the incident I148, 10 September 2015 that’s remote. I give that reduced weight. There’s a question in the legislation there’s no – now Ms Prosecutor do you say I can take into account incidents other than offences?

PROSECUTOR: Your Honour we rely upon the convicted offences.

HIS HONOUR: Right

PROSECUTOR: But I suppose your Honour could give some regard to.

HIS HONOUR: Right, I disregard 10 September 2015. Okay and so what is this an application for – just go to the child protection registration order. Do you wish to address on that Ms Prosecutor?

PROSECUTOR: No your Honour I just rely on the order, on the application rather.

HIS HONOUR: Sorry? Okay right, so the accused was served he has not attended. So I turn to the legislation Child Protection (Offenders Registration) Act 2000, I turn to s.3E. The first at 3AA(3). So I take into account the seriousness of each registrable offence, the age of the people, age of the victim and the frequency of the offences being committed. I turn to 3E, I am satisfied the balance of probabilities there is a risk to the live and sexual safety of children generally. The application has been made within 60 days. I propose to make the order and I have read all of the annexures with the application and the application.

SO THE ORDERS ARE 1 APPLICATION GRANTED.” (28/07/20 T 2-3)”

Plaintiff’s submissions

15. Mr Coady argued that His Honour’s decision was infected by jurisdictional error in that he failed to apply the statutory meaning of “a risk to the lives or sexual safety of children”, because he failed to make reference to the critical requirement in s 3AA(1) and failed to take into account mandated relevant considerations set out in s 3AA(3).

16. There was also a constructive failure to exercise jurisdiction because his Honour’s Reasons failed to undertake any genuine assessment or analysis of the risk posed to children by Mr Tua.

17. It was submitted additionally and in the alternative that first, the Reasons were inadequate in that they failed to reveal the path of reasoning leading to the conclusion and second, the decision was legally unreasonable in that no reasonable decision-maker would have made that decision.

Defendants’ position

18. The second defendant, the Local Court of NSW, entered a submitting appearance on 9 September 2021.

19. Counsel for the Commissioner of Police, Ms Davidson, instructed by the Crown Solicitor’s Office, properly conceded that there was jurisdictional error. Consent Orders signed by both active parties reflecting that position were provided to the Court on 9 September 2021.

Consideration and Decision

20. I do not need to deal with the secondary arguments as it is clear that jurisdictional error has been established due to his Honour’s failure to take into account the necessary considerations and make the necessary findings required by s 3(2) and s 3AA of the CPOR Act.

21. I adopt and entirely agree with the analysis of Fagan J in O’Neill v Commissioner of Police [2020] NSWSC 1805 as to the mandatory aspects of the legislation that must be actively considered and properly and clearly articulated in the Court’s Reasons when making such an order:

“[10] Given that an order under s 3E gives rise to these enormous restrictions on liberty and privacy of the registrable person and that an application for such an order may originate from an offence that is no more serious than a traffic violation, the constraint provided in s 3AA of the Act assumes very great importance. That section is as follows:

3AA Risk to sexual safety of children—meaning

(1) For the purposes of this Act, a person poses a risk to the lives or sexual safety of one or more children, or of children generally if there is a risk that the person will engage in conduct that may constitute a Class 1 offence or a Class 2 offence against or in respect of a child or children.

(2) In order for a court to be satisfied that a person poses a risk to the lives or sexual safety of one or more children, or of children generally, it is not necessary for the court to be able to identify a risk to particular children, or a particular class of children.

(3) A court is to take the following into account in determining whether a person poses a risk to the lives or sexual safety of one or more children, or of children generally—

(a) the seriousness of each registrable offence committed by the person,

(b) the age of the person at the time each of those offences was committed,

(c) the age of each victim of each of those offences at the time that the offence was committed,

(d) the seriousness of any other offences committed by the person,

(e) the impact on the person if the order being sought is made compared with the likelihood that the person may commit a registrable offence,

(f) any other matter that the court considers to be relevant.

[11] The considerations listed in sub-s (3) are mandatory. They must be taken into account in determining whether the respondent to an application under s 3E “poses a risk to the lives or sexual safety of one or more children or of children generally”.

[12] Section 3AA makes it clear that the enquiry under s 3E(2)(a) about whether the person poses a risk to children is not at large but is constrained and directed by the statute. It shows that a conclusion as to the existence of a risk cannot be drawn lightly. The first three considerations listed in s 3AA, pars (a), (b) and (c), contemplate that the respondent has been proved beyond reasonable doubt to have committed an offence against a child or children. As earlier mentioned, a conviction for such an offence is not a prerequisite to the making of an order under s 3E. However, the fact that three out of six mandatory considerations are directed to cases where the respondent has been so convicted is a clear indication that, in other cases, the contention that a respondent is a threat to children would have to be based upon something stronger than a police officer’s speculation or suspicion. The remaining considerations under s 3E(3) are to be construed, applied and weighed having due regard to their context, juxtaposed with considerations (a), (b) and (c). For example, the “seriousness of any other offence” referred to in par (d) must be measured with particular regard to whether any such other offence involved a child victim, which is the focus of pars (a), (b) and (c). A drug possession charge or a driving infringement, as in the present case, could not be regarded as “serious” within the meaning of par (d), given its context.”

22. The fatal problem with the Reasons articulated by the learned Magistrate is that first he made no reference or finding at all in respect of s 3AA(1). In my view that is a “gateway” finding and without that, his Honour’s order is invalid, infected by jurisdictional error.

23. Further, there was an absence of reference to s 3AA(3) factors mandated by the word “is” in the context of what the Court “is” to take into account to make the necessary determination under s 3AA(1). These were not articulated at all and, as I have already noted, no finding under s 3AA(1) was stated. Having regard to the requirements of s 3(2) of the CPOR Act, the necessary pre-condition for the order was not met. The order must be quashed.

24. It follows that the orders made and sentences imposed by other judicial officers in the Local Court after 28 July 2020 are infected by that error and must be set aside.

25. The matters set out in the affidavit of Mr Fernandez explain and justify the extension of time sought in respect of leave to appeal the subsequent convictions and leave is granted to appeal those convictions.

26. The conviction on 7 October 2020 for the offence of failing to comply with the reporting obligations under the CPOR Act is set aside, as is the sentence imposed on that date, as are the convictions and sentences imposed on 25 May 2021.

27. The parties elected to have the remaining matters remitted to the Local Court for re-sentence under s 55(2)(c) of the Crimes (Appeal and Review) Act 2001 (NSW).

Orders

28. The following orders were made:

1. Pursuant to rule 59.10(2) of the Uniform Civil Procedure Rules 2005, extend the time to commence judicial review proceedings in respect of the decision identified in order 2 below, to 16 July 2021.

2. Quash the decision of the second defendant on 28 July 2020 to make an order in respect of the plaintiff under s 3E(1) of the Child Protection (Offenders Registration) Act 2000.

3. Note: The first defendant consents to the order on the basis that the second defendant failed to apply the correct statutory test, having regard to ss 3AA and 3E(2) of the Child Protection (Offenders Registration) Act 2000, and thereby fell into jurisdictional error.

4. Pursuant to r 51B.5(3) of the Supreme Court Rules 1970, extend the time to seek leave to appeal in respect of the convictions and sentences identified in orders 5, 6 and 8 below, to 16 July 2021.

5. Pursuant to s 54 of the Crimes (Appeal and Review) Act 2001, grant leave to appeal against the convictions and sentences identified in orders 5, 6 and 8 below.

6. Pursuant to s 55 of the Crimes (Appeal and Review) Act 2001, set aside the conviction of the plaintiff on 7 October 2020 for an offence of failing to comply with reporting obligations under s 17(1) of the Child Protection (Offenders Registration) Act 2000 (being sequence 1 recorded on Court Attendance Notice H 75117244).

7. Pursuant to s 55 of the Crimes (Appeal and Review) Act 2001, set aside the aggregate sentence imposed on the plaintiff by the second defendant on 7 October 2020.

8. Remit the matter to the Local Court for sentence in respect of the plaintiff’s convictions which were dealt with by way of aggregate sentence on 7 October 2020 (other than in respect of sequence 1 recorded on Court Attendance Notice H 75117244).

9. Pursuant to s. 55 of the Crimes (Appeal and Review) Act 2001, set aside the convictions and sentences imposed on the plaintiff by the second defendant on 25 May 2021 for offences of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (being sequences 1-5 recorded on Court Attendance Notice H 347139994).

10. The Amended Summons filed on 18 August 2021 is otherwise dismissed.

11. There be no orders as to costs.

12. Vacate the hearing date listed for 13 September 2021.

**********

Decision last updated: 14 September 2021