O'Reilly v Department of Corrections
[2018] NZHC 469
•20 March 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-000003
[2018] NZHC 469
BETWEEN ANARU O’REILLY
Appellant
AND
DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 13 March 2018 Appearances:
P Hamlin for the Appellant J Harley for the Respondent
Judgment:
20 March 2018
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Tuesday, 20 March 2018 at 11:00 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
P Hamlin, Auckland
Meredith Connell, Auckland
O’REILLY v DEPARTMENT OF CORRECTIONS [2018] NZHC 469 [20 March 2018]
Introduction
[1] On 12 December 2017, Anaru Piripi Wirihana O’Reilly pleaded guilty to and was convicted of four charges under s 39 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (Child Protection Act) of failing to comply with his reporting obligations. He sought to enter a plea of previous conviction to two other charges under s 107T of the Parole Act 2002 of failing to comply with the conditions of an extended supervision order.
[2] If a plea of previous conviction is entered in relation to a charge, the Court must dismiss the charge if it is satisfied that the defendant has been convicted of any other offence arising from the same facts. Mr O’Reilly submitted that his convictions under the Child Protection Act arose from the same facts upon which the two charges under the Parole Act were founded. In a reserved decision dated 20 December 2017, Judge Mathers refused leave to Mr O’Reilly to enter a special plea of previous conviction.1
[3] On 21 December 2017, Mr O’Reilly therefore pleaded guilty to the two charges under the Parole Act. He was then convicted and sentenced to concurrent sentences of six months imprisonment on the four charges under the Child Protection Act and concurrent sentences of 13 months imprisonment on the two charges under the Parole Act. He now appeals against conviction on the charges under the Parole Act on the basis Judge Nicola Mathers was wrong to refuse him leave to enter a special plea.
Factual background
[4] On 21 April 2005, Mr O’Reilly was convicted of an indecent assault on a 12 year old boy and sentenced to six months imprisonment with leave to apply for home detention. He did not, however, apply for home detention and was released from prison in accordance with the statutory scheme after serving half his sentence on 21 July 2005.
1 Department of Corrections v O’Reilly [2017] NZDC 29066.
[5] On 30 May 2006, on application by the Department of Corrections, the Christchurch District Court made an extended supervision order against Mr O’Reilly under s 107I of the Parole Act. Extended supervision orders are used to both monitor and manage the long term risk posed by high risk sex offenders. Mr O’Reilly’s extended supervision order set out a number of standard and special conditions with which he had to comply.
[6] From that date and up until the present offending, Mr O’Reilly has been convicted of 30 charges of breaching the conditions of his extended supervision order. He has received terms of imprisonment on all 30 charges, ranging from one month in 2006 to 18 months imprisonment in 2011. His most recent sentence of imprisonment was for a term of one year and two and a half months imposed in 2016.
[7] The extended supervision order was for a term of 10 years, but is suspended by operation of law while Mr O’Reilly is in prison. It has been more than ten years since the extended supervision order was imposed on Mr O’Reilly, but it is still in force because of Mr O’Reilly’s numerous terms of imprisonment. It is currently due to expire on 3 May 2020.
[8] On 14 October 2016, the Child Protection Act came into force. The purpose of the Act was to establish a Child Sex Offender register that would reduce sexual offending against child victims and the risk posed by serious child sex offenders. Mr O’Reilly was a registrable offender in terms of the Act and, accordingly, became subject to various reporting obligations. Mr O’Reilly has an obligation to comply with the reporting obligations for 15 years from when he ceased to be in custody in relation to the indecent assault offence of which he was convicted in 2005.
[9] Mr O’Reilly’s most recent release from prison was on 19 October 2016. The day after his release, on 20 October 2016, Mr O’Reilly was fully re-inducted into his extended supervision order by his Corrections probation officer, where the conditions of his sentence were explained to him in detail and he acknowledged his understanding of those conditions by signing the induction documentation. The day before his release, on 18 October 2016, Mr O’Reilly had also completed his registration under
the Child Protection Act with his Police case manager and was issued with a notice of reporting obligations in relation to the Child Sex Offender register.
[10] The two conditions of relevance of Mr O’Reilly’s extended supervision order were:
(a)to only engage in such vocational training/employment (paid or unpaid) and any community or sporting clubs/groups with the prior written approval of his probation officer; and
(b)to reside at an address approved by his probation officer and to not stay away overnight or move from that address or subsequent approved address without the prior written approval of his probation officer.
[11] When he completed his registration under the Child Protection Act, Mr O’Reilly reported that he was not working and that he was living in a room at Epsom Lodge, 18 Margot Street, Auckland. Section 20(1) of the Child Protection Act required him to report any change in the details reported. Specifically, it required him to report to the Commissioner:
(a)any change in the details report under s 16(1)(d) (premises at which the offender generally resides or localities at which the offender can generally be found) at least 48 hours before the change occurred; and
(b)any other change in his or her relevant personal information within 72 hours after that change occurred.
[12] On 20 February 2017, Mr O’Reilly registered for employment with the Vital Hospitality agency in Auckland and commenced employment at various locations. He did not have prior written approval from his probation officer as required by his extended supervision order. Nor did he inform the Police he was working within 72 hours of the change in employment circumstances as required by the Child Protection Act. On 1 May 2017, the Police received advice from the director of the Vital Hospitality agency that Mr O’Reilly was still employed and was actually
working that day at a venue in South Auckland and was due to work at the same venue the next day. Mr O’Reilly had been in agency employment since 20 February 2017 and worked at private and large public events, including rest homes.
[13] Further, on 2 May 2017, the Salvation Army, the manager of the Epsom Lodge, advised the Police that Mr O’Reilly had been away from the address for more than 48 hours on three separate occasions between 2 March 2017 and 16 April 2017. One of these periods comprised of 11 nights consecutively. In total he had stayed away overnight and not returned to his address on 13 occasions within the month of April 2017. Mr O’Reilly did not have the prior written approval of his probation officer to stay away overnight from the address. Nor did he inform the Police at least 48 hours beforehand that he would be staying away for more than 48 hours.
[14] As a consequence, the Department of Corrections charged Mr O’Reilly with two offences under s 107T of the Parole Act. He was charged that he, being a person who is subject to an extended supervision order for a period of 10 years, failed without reasonable excuse to comply with the condition of the order in that:
(a)he commenced employment without the prior written approval of a probation officer; and
(b)he stayed away overnight from his approved address without the prior written approval of a probation officer.
[15] At the same time, the Police charged Mr O’Reilly with four offences under s 39(1) of the Child Protection Act. Two of these charges are of relevance. He was charged that he, being a registrable offender without reasonable excuse, failed to comply with his reporting obligations, namely:
(a)to inform Police of his employment with the Vital Hospitality agency within 72 hours; and
(b)to inform Police he was staying away for more than 48 hours from his residence with 48 hours prior notice.
[16] Mr O’Reilly pleaded guilty to the two Police charges, and then sought to enter a plea of special conviction to the two Corrections charges.
District Court decision
[17] After referring to the charges faced by Mr O’Reilly, Judge Mathers referred to the Court of Appeal decision of Rangitonga and identified the principles to be applied in relation to a plea of previous conviction or acquittal.2
[18] Turning then to the facts of the case, the Judge considered it was too simplistic just to compare the particulars of the Police and Corrections charges. In her view, the punishable acts were different in each set of charges. The punishable act in the Police charges was a failure to advise the Police and in the other charges, to advise the Department of Corrections. The Judge said that there were different considerations and different protections. The Judge acknowledged that a very narrow consideration of the particulars disclosed the same or similar facts, but she did not consider that to be the proper approach. As a result, the Judge was not prepared to allow the entry of a special plea of conviction.
Discussion
[19] Mr O’Reilly sought to enter a plea of previous conviction in relation to the Corrections charges pursuant to s 46(1)(b) of the Criminal Procedure Act 2011. It provides:
46 Previous conviction
(1)If a plea of previous conviction is entered in relation to a charge, the court must dismiss the charge under section 147 if the court is satisfied that the defendant has been convicted of—
(a)the same offence as the offence currently charged, arising from the same facts; or
(b)any other offence arising from those facts.
(2)Subsection (1) does not apply if—
(a)the defendant was convicted of an offence and is currently charged with a more serious offence arising from the same facts; and
2 Rangitonga v Parker [2016] NZCA 166, [2016] NZAR 768.
(b)the court is satisfied that the evidence of the more serious offence was not readily available at the time the charging document for the previous offence was filed.
[20] I agree with counsel for Mr O’Reilly that s 46 departs from previous common law principles and the now repealed Crimes Act 1961 provision in specifically allowing for a plea of previous conviction for different offences arising from the same facts.
[21]In Rangitonga the Court of Appeal stated:3
We agree that the reference to offences “arising from the same facts” in s 47 is intended to apply to cases where there is a common punishable act central to both the previous and new charge. We would add that the same approach should apply to a common punishable omission. The new section focuses on the substance of the facts giving rise to the previous and new charges rather than a fine-grained comparison of each element of the charges.
[22] In Rangitonga the Court determined that a plea of previous acquittal was not available as the central punishable act for a charge of rape was sexual connection without consent, while the central punishable act for the injuring charge was the punching and attempted strangling of the complainant.
[23] Counsel for Mr O’Reilly submits that the substance of the facts giving rise to the Corrections charges under the Parole Act are the same as the facts which give rise to the Police charges under the Child Protection Act. He submits that the punishable omission giving rise to both the Corrections charges and the Police charges is Mr O’Reilly’s failure to report his change in employment status and address.
[24] With respect, this misstates the nature of the punishable omission in the Corrections charges. Mr O’Reilly needed the prior written approval of his probation officer to commence employment or stay away from his address overnight. This can be contrasted with the Police charges in which the punishable omission is failure to report changes in employment status and address, either within 72 hours of the change in employment status or at least 48 hours prior to the change in address. This reflects real differences between the two pieces of legislation.
3 At [41]..
[25] An extended supervision order is imposed by a sentencing court following completion of a specialist report from a psychiatrist or psychologist and an assessment by the court of a real and on-going risk of further sexual or violent offending. A person subject to an order will have to report to their probation officer regularly, but in addition will be subject to employment and residence constraints and restrictions about contact with their victim(s) and other people or groups of people. They may also be required to undergo assessment and undertake treatment if directed by their probation officer.
[26] Registration under the Child Protection Act is, however, automatic if certain statutory criteria are met. There are no reports obtained and there is no assessment of risk by a court. There are no constraints on where a registrable offender can work or live, who they can live with and when and where they can travel. They are obliged only to report any changes in their circumstances. They cannot be required to undergo assessment or undertake treatment.
[27] The differences can be illustrated by referring to the facts of this case. On 20 February 2017, Mr O’Reilly commenced employment with the Vital Hospitality agency. He did not have the prior written approval of his probation officer. When he commenced employment without prior written approval he committed an offence against the Parole Act. He was, however, at that time not in breach of the Child Protection Act. He also was not in breach of the Act the next day, or even the following day. It was only when he failed to report to the Police that he was employed by the Vital Hospitality agency on or before 23 February 2017 that he committed an offence against the Child Protection Act.
[28] The central punishable act for the charge under the Parole Act was commencing employment without prior written approval, while the central punishable act for the charge under the Child Protection Act was failing to report to the Police within 72 hours after commencing employment. There was, therefore, a space of three days between the dates on which the offences were committed.
[29] Counsel for Mr O’Reilly is wrong to submit that it is not possible to commit the Corrections charges without committing the Police charges. If Mr O’Reilly had
chosen to advise the Police on 23 February 2017 that he had commenced employment, he would have only have committed an offence against the Parole Act and not the Child Protection Act.
[30] The difference is significant. If Mr O’Reilly had sought prior written approval from his probation officer to commence employment with the Vital Hospitality agency it may have been declined as the probation officer may have thought it would expose members of the public to a level of risk from Mr O’Reilly as he was to work as wait staff at social functions, presumably sometimes at night and sometimes involving the provision of alcohol.
[31] If he was solely a registrable offender under the Child Protection Act and not subject to an extended supervision order, he would not require approval and the Police could not stop him from working for the Vital Hospitality agency.
[32] Counsel for Mr O’Reilly pointed to the high level of co-operation between Corrections and the Police in aid of his submission that the Corrections and Police charges arose from the same facts. With respect, the fact that there may be a measure of co-operation and information sharing between Corrections and the Police is immaterial when assessing whether a plea of previous conviction is available. Mr O’Reilly was not under the same obligation to the same authority (Corrections or Police) while subject to both regimes as submitted by his counsel.
[33] Another significant difference between the two sets of offences is the status of the offender. In respect of the Corrections charges, Mr O’Reilly had to be a person who was subject to an extended supervision order. In respect of the Police charges, Mr O’Reilly had to be a registrable offender under the Child Protection Act.
[34] Corrections and Police were also not relying on the same evidence and the same witnesses. Mr O’Reilly’s probation officer would have been required to give evidence that prior approval was not obtained prior to 20 February 2017, while Mr O’Reilly’s Police case manager would have been required to give evidence that he did not receive notice from Mr O’Reilly that he had commenced employment on or before 23 February 2017. That, with respect, is a material difference.
[35] Finally, counsel for Mr O’Reilly submits that if a special plea of serious conviction is not available to him then the Corrections charges ought to have been dismissed under the Court’s inherent jurisdiction to prevent an abuse of process. I am of the view, however, that there has been no abuse of process.
[36] The Corrections charges do not amount to double punishment, nor is the use of similar evidence improper. Parliament was well aware it was imposing overlapping obligations when it enacted the Child Protection Act and made the decision that those already subject to extended supervision orders would also be required to register on the Child Sex Offender register. There is no abuse in the prosecution of Mr O’Reilly under the two different statutes.
[37] The judge was right to refuse to enter a plea of previous conviction. The appeal is dismissed.
Woolford J