Bennet v Police

[2023] NZHC 1768

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-000088

CRI-2023-409-000089 [2023] NZHC 1768

BETWEEN

SHAUN HARLEY BENNET

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

6 July 2023

Appearances:

R J J George for the Appellant

G E R Alloway for the Respondent

Judgment:

7 July 2023

JUDGMENT OF GENDALL J

[1]                  The appellant, Mr Shaun Bennet, is charged with three counts of breaching reporting requirements under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.1  One of the  charges relates to the allegation that  Mr Bennet failed to report that he was generally residing at a new address.

[2]                  This appeal raises a question of law. The question is: what does it mean to “generally reside” under s 16(1)(d) of the Act? That provision relates to the requirement for the appellant who is a registerable offender under the Act, to report the address of each of the premises at which he generally resides from time to time.

1      Child Protection (Child Sex Offender Agency Registration) Act 2016, s 39 carries a maximum penalty of one year’s imprisonment and a fine of $2,000.

SHAUN HARLEY BENNET v NEW ZEALAND POLICE [2023] NZHC 1768 [7 July 2023]

[3]                  The pre-trial application in question which was before Judge Savage, in the Christchurch District Court, as I note sought a determination of the definition of “generally resides” for the purposes of the Act.

[4]                  In an oral judgment dated 30 March 2023, Judge Savage held that “generally resides”, for the purposes of the Act, means residing at an address for at least two days in a 12 month period. The Judge referred to this definition that he said can be found in s 16(2)(a) of the Act. He considered the definition he adopted was consistent with the legislative intent, that is, for those who are on the Child Sex Offender Register to be under some degree of monitoring, and “for those in authority to have some control or knowledge of their movements.”

[5]                  Mr Bennet appeals this pre-trial ruling on the ground that it was wrong in law. Mr Bennet also applies for leave to appeal the ruling. Mr Bailey, for the appellant, submits that s 16(2)—the section Judge Savage used to determine the definition of the “generally resides” phrase—is not a definitional section. Rather, Mr Bailey contends, the two-days in 12-month period test is merely a pre-requisite to when a registrable offender can be said to generally reside at an address. Further, Mr Bailey suggests case law from other contexts and the legislative drafting process support having a definition of “generally residing” that attaches a degree of permanence to the concept.

[6]                  Mr Alloway, for the respondent, opposes leave being granted on the basis that such a pre-trial appeal was not provided for in the legislation and is contrary to the streamlined process that judge-alone trials are intended to follow. For present purposes I will however grant leave to appeal Judge Savage’s ruling. It does not affect the ultimate outcome here.

[7]                  As to the merits of the pre-trial ruling, the respondent contends Judge Savage was correct that there is a definitional section here in s 16(2). He says the appeal should also be dismissed. Mr Alloway submits the use of the word “unless” in the relevant subsection creates a situation where an offender does generally reside at an address if they spend two days there in a 12-month period. This interpretation is supported by other provisions in the Act which demonstrate that s 16 is not aimed at establishing the primary residence of an offender but simply any residence where the

offender stays so that the offender can be monitored and importantly any risk of offending can be mitigated.

[8]                  I agree with the interpretation favoured by Judge Savage and the respondent. I do not consider this appeal has merit. No error can be found in the pre-trial ruling made by Judge Savage.

[9]                  Mr Bennet is charged with failing to comply with his reporting obligations without reasonable excuse under s 39 of the Act. Those reporting obligations are quite extensive and are provided for in s 16 of the Act. Section 16(1)(d) names the following as one piece of information that needs to be reported:

(d)       the address of each of the premises at which he or she generally resides…

[10]Later in s 16, the Act specifically goes on to provide:

(2)For the purposes of this section,—

(a)a registrable offender does not generally reside at any particular premises unless he or she resides at those premises for at least 2 days (whether consecutive or not) in any period of 12 months; …

[11]              It is plain as I see it that the test for when a registrable offender is generally residing at an address for the purposes of s 16 was intended by the legislature to be the one provided for in s 16(2)(a) and that this was to be applicable to the reporting obligations described in s 16(1). The use of negative language in s 16(2)(a) as I see it does not change the definitional nature of the provision. The appellant’s argument, that we must look to case law from other contexts to determine the definition of the phrase, is untenable in my view when the very section that places the obligation to report also provides a meaning for the relevant phrase. As I note, subsection (2) makes clear that the definition that follows is to be applied “for the purposes of this section”.

The reporting obligations relating to residence under s 16 of the Act are triggered in accordance with s 16(2)(a). That is, when a registrable offender resides for at least two days at an address in a 12-month period. This is the interpretation that is consistent with the clear scheme and purpose of the Act, it being to reduce the risk posed by child sex offenders, and to reduce sexual offending against child victims generally.

[12]              In my view, s 20 of the Act which outlines the requirement to report changes to relevant personal information including “a change in the premises or household where the registerable offender or a child generally resides only on expiry of the relevant two day period….” supports this conclusion as does s 21 requiring travel plans to be reported, too. It is clear the legislation requires the offender to report multiple addresses being all the addresses at which they “generally reside” as set out in the definitional provision s 16(2).

[13]Judge Savage made no error of law in his pre-trial ruling.

Result

[14]Leave to appeal is allowed. The appeal however is dismissed.

Gendall J

Solicitors:

Andrew Bailey Barrister for the Appellant Raymond Donnelly & Co for the Respondent