RPM v Commissioner of Police
[2018] NZHC 2198
•24 August 2018
ORDER PROHIBITING PUBLICATION OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV 2017-485-984
[2018] NZHC 2198
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an Application for Judicial Review
BETWEEN
RPM
Applicant
AND
THE COMMISSIONER OF POLICE
Respondent
Hearing: 13 December 2017 and 6 July 2018 Counsel:
D A Ewen and E Blincoe for Applicant A Powell for Respondent
Judgment:
24 August 2018
JUDGMENT OF ELLIS J
[1] Mr M seeks judicial review of his placement on the Child Sex Offender Register (CSO Register) following his release from prison in 2016. His principal contention is that he is not caught by the retrospectivity provisions in the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the CPSORA), although he also advances other grounds of review.
[2]The parties are agreed that Mr M’s name should continue to be suppressed.1
1 The Child Sex Offender Register (CSO Register) is not a public register. Because Mr M’s qualifying offending was against a relative suppression may also be necessary to protect her
RPM v THE COMMISSIONER OF POLICE [2018] NZHC 2198 [24 August 2018]
Background
[3] On 11 December 2013, Mr M was sentenced in the District Court at Manukau to concurrent prison terms totalling two year and four months on charges of having a sexual connection with a young person.2 Were that offence to be committed today, there is no doubt that it would qualify Mr M for registration under the CPSORA.
[4]The expiry date for Mr M’s sentence on the sexual connection charge was
10 September 2015, over a year before the commencement of the CPSORA.
[5] But on 30 April 2014, Mr M was sentenced to a further one year imprisonment on three unrelated charges. The three unrelated charges did not involve sexual offending against children or, indeed, sexual offending at all. That one year sentence was imposed cumulatively on the sexual connection sentence. His sentence expiry date then fell to be determined in accordance with ss 75 and 82 of the Parole Act 2002 (the PA).
[6]Section 75 states:
75 Cumulative sentences form a single notional sentence
(1)If … an offender is sentenced to a sentence of imprisonment (a later sentence) that is directed to be served cumulatively on another sentence (an earlier sentence), the later sentence and the earlier sentence form a notional single sentence for the purpose of determining –
(a)whether the offender is subject to a long-term sentence or a short-term sentence; and
(b)the non-parole period to apply when determining the offender’s parole eligibility date; and
(c)the release date to apply when determining the offender’s statutory release date.
…
identity.
2 It appears from the sentencing notes that the offending involved a 13-year-old relative and may have had “consensual” aspects.
[7]And s 82(2) of the PA provides:
The sentence expiry date of a notional single sentence is the sentence expiry date of the last sentence in the series of sentences that forms the notional single sentence.
[8] Under these provisions, Mr M’s notional single sentence expired on 10 September 2016, although his statutory release date was wrongly calculated as 29 September 2016.3 On his release on that day, he was placed on special release conditions pursuant to section 18(2) of the PA. The release conditions expired on 9 March 2017 (six months from his corrected release date).
[9] On 14 October 2016, roughly a fortnight after Mr M’s release, the CPSORA came into force. Schedule 1 of the Act contained a clause retrospectively applying its provisions to persons who had committed a qualifying offence prior to the commencement date. It defined the term “registrable offender” as including those who, on the commencement date, were:4
(a)serving, in custody, the sentence of imprisonment that was imposed for that offence; or
(b)serving, on parole or on release from custody on release conditions, the sentence of imprisonment that was imposed for that offence; or
(c)subject to an extended supervision order or an interim supervision order following the sentence of imprisonment that was imposed for that offence; or
(d)subject to a public protection order or an interim detention order following the sentence of imprisonment that was imposed for that offence.
[10] Under the CPSORA, the Commissioner of Police is responsible for establishing and maintaining the Child Sex Offender Register (the CSO Register). The initial police view was that the retrospectivity clause was intended to and did “catch” those offenders (such as Mr M) who had been released from prison but remained subject to release conditions on 14 October 2016.
3 Mr M is one of those prisoners to whom the Supreme Court’s decision in Booth v R [2016] NZSC 127, [2017] 1 NZLR 223 applies.
4 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, sch 1 cl 1(1) [CPSORA].
[11] Accordingly, shortly after the Act’s commencement, two members of the police met with Mr M at his home. The purpose of the meeting was to gather the information required to be put on the CSO Register and to assess Mr M’s surroundings for risk factors. Mr M’s evidence was that he politely raised a question with them as to whether he was registrable at all. He says that he refused to sign the relevant documents. He was placed on the CSO Register anyway.
[12] In the meantime, as a result of the Supreme Court’s decision in Booth, the Department of Corrections (Corrections) was required to review its release date calculations.5 In the course of that exercise Corrections also reviewed the application of the retrospectivity provisions of the CPSORA. The Department formed the view that those provisions did not capture individuals in Mr M’s position, who were subject to release conditions on the commencement date.6 At around the time that the CPSORA came into force, Corrections advised police of its view that not all persons serving “other form of conditional release from custody” met the criteria for registration under cl 1.
[13] On receipt of this advice, police reviewed all persons on the CSO Register who were living in the community. Each was checked against the retrospectivity provisions to confirm his or her registrability. This process identified 78 people who had been placed on the CSO Register who:
(a)had been sentenced to imprisonment for longer than two-years;
(b)had reached their statutory release date as at 14 October 2016;
(c)had been released from prison; and
(d)were subject to release conditions.
5 The narrative that follows is taken from an affidavit sworn by Mr Mark Hutton, a Police employee who is responsible for the Child Sex Offender Register (CSO Register).
6 The phrase “serving, on parole or on release from custody on release conditions, the sentence of imprisonment that was imposed for that offence” clearly did not include those offenders whose release expiry dates have passed because they are no longer “serving” the relevant sentence of imprisonment.
[14] Police determined that these people did not meet the criteria for retrospective registration because, as at the date of commencement of the Act, they were not “serving … their sentence of imprisonment”. On around 23 November 2016, police wrote to all 78 of these people advising that they had been removed from the CSO Register.7 Mr M was one of these.
[15] But on 8 March 2017, the Act was amended by the Child Protection (Child Sex Offender Government Agency Registration) Amendment Act 2017 (the Amendment Act). The Amendment Act was passed in a single day, under urgency. There was no prior consideration by a Select Committee.
[16] Section 2 of the Amendment Act deemed it to have come in to force on the same day as the CPSORA (14 October 2016). The Amendment Act amended cl 1 of sch 1 so that it now provides:
1 Retrospective application
(1)This clause applies to a person who, on 14 October 2016, is, in respect of a qualifying offence,—
(a)serving, in custody, the sentence of imprisonment that was imposed for that offence; or
(b)serving, on parole or on release from custody on release conditions, the sentence of imprisonment that was imposed for that offence; or
(c)subject to an extended supervision order or an interim supervision order following the sentence of imprisonment that was imposed for that offence; or
(d)subject to a public protection order or an interim protection order following the sentence of imprisonment that was imposed for that offence; or
(e)no longer serving the sentence of imprisonment that was imposed for that offence, but still subject to release conditions following the sentence expiry date of that sentence.
7 A further 29 persons were identified who had been placed on the CSO Register who had been sentenced to a term of imprison shorter than two-years, had reached their statutory release date as at 14 October 2016 and had been released from prison, but were still subject to release conditions on that day. Those people were also thought not to qualify for registration under the retrospective criteria and on 3 February 2017 were advised by Police that they had been removed from the register.
[17] Because of the addition of cl 1(e) those offenders who had served their sentence for a qualifying offence but remained subject to release conditions on 14 October 2016 were rendered eligible for registration.8 So a few days after the passage of the Amendment Act, Mr M was once again placed on the CSO Register. By that time the sentence expiry date for his notional single sentence had passed and his release conditions had expired. The term of the CSO registration is for the remainder of the Mr M’s life.9
The (amended) application for review
[18] Mr M sought judicial review of his (re)placement on the CSO Register. That application was adjourned part-heard in December 2017 to permit Mr M to amend his claim, which he did in May 2018. The hearing resumed in July 2018.
[19] Mr M now seeks an order quashing the his (re)placement on the CSO Register and a declaration that he is not liable to be registered under the Act (as amended) on the grounds that:10
(a)revocation of Mr M’s placement on the CSO Register in 2016 is final and is of continuing effect; or
(b)the expiry date of Mr M’s qualifying sentence was 10 September 2015 any release conditions to which he was subject on 14 October 2016 could not be said to “follow” the expiry of that sentence in terms of cl 1(e) of sch 1; or
8 I discuss whether there is any room for nuance in the meaning of cl 1(e) later, below.
9 Because Mr M’s qualifying offence was a “Class 3” offence: CSPORA s 35(1). The Commissioner has a discretion to suspend Mr M’s reporting obligations under s 36(2), if satisfied on reasonable grounds that he does not pose a risk to the lives or sexual safety of one or more children, or of children generally.
10 A further ground based on the contention that Mr M was not properly subject to release conditions at all because of the miscalculation of his release date was not, ultimately pursued before me.
(c)by rendering him subsequently liable to registration, the sentence imposed on Mr M in April 2014 has occasioned a breach of his right to be free from double punishment such that that sentence should be quashed, with the effect that he was not properly the subject of release conditions on 14 October 2016 and not therefore eligible for registration.
[20] It is fair to say that it was the second of these grounds that was ultimately pursued with the most vigour before me. Nonetheless, I address each in turn.
Ground 1: initial removal from Register cannot be undone
[21] This ground was squarely based on Faire J’s earlier decision in AH v Commissioner of Police.11
The decision in AH
[22] AH had been convicted and sentenced for a qualifying offence in May 2014. Like Mr M, he had served his sentence but remained subject to release conditions on 14 October 2016. Like Mr M, he was placed on the CSO Register.
[23] Unlike Mr M, however, AH sought a review of his registration under s 49 of the CPSORA. On 7 November 2016, he applied to the Commissioner to have his name removed from the register on the ground that he was neither serving a sentence of imprisonment nor subject to any of the other qualifying matters referred to in sch 1 of the CPSORA.
[24] Apparently as a result of this application the Commissioner removed AH’s name from the Register on 23 November 2016.12 His release conditions expired on 12 January 2016. But on 8 March 2017, following the passage of the Amendment Act, he was again placed on the CSO Register.
11 AH v Commissioner of Police [2017] NZHC 930, [2017] NZAR 754.
12 It may be observed, however, that this date appears to be the same date that everyone who was in the same position as AH and Mr M was removed from the Register.
[25] AH sought judicial review of his reregistration on the basis that while the Amendment Act validated any unlawful registrations that subsisted on 7 March 2017, it did not invalidate the previous revocation of his initial registration. AH argued that the Act should be strictly construed in light of the rules against double jeopardy and retrospectivity.
[26]In quashing AH’s (re)registration, Faire J said:13
[28] Section 2 of the Child Protection (Child Sex Offender Government Agency Registration) Amendment Act 2017 was enacted with a commencement date of 14 October 2016. It was clearly intended to be retrospective. The language used in s 2, namely “this Act is taken to have come into force on 14 October 2016”, means exactly what it says. The amendment is intended to apply from the commencement date of the Principal Act.
[29] I accept that Parliament can retrospectively reverse decisions defining private rights. Further, it will not be assumed that a person will be deprived of the fruits of a judgment by legislation without there being clear expression. Mr Powell submitted that the presumptions are not engaged at all because the removal decision did not confer any rights on the applicant. However, the applicant did exercise rights under s 49 of the Principal Act to challenge the original decision to include him on the Register. The decision of the Commissioner of Police was in the applicant’s favour, and he was removed. There are no provisions in the Amending Act that address circumstances where a decision to remove under s 49 has already been made. There is no provision that allows the Commissioner of Police to revisit that decision, nor is there any provision that allows for the re-registration of the applicant following a successful challenge to being placed on the Register. Parliament has simply not addressed the point. There is, therefore, no justification for the applicant’s current inclusion on the Register.
[27] The difference here is that Mr M did not utilise the s 49 review procedure after he was placed on the CSO Register the first time.14 And if it was a merciful stretch to regard the granting of AH’s s 49 application as a “judgment” the fruits of which he could only have taken by express language, it is even more of a stretch to regard Mr M’s removal by way of an administrative act as engaging the “fruits of judgment” principle.
13 (footnotes omitted).
14 I record Mr Ewen’s submission that the AH reasoning might apply to Mr M because he did protest his registration to the police officers who attended on him in October 2016 (“albeit in mild terms”). I am unable to accept that this suffices to engage the s 49 process.
[28] Moreover, in reaching the conclusion he did, Faire J relied on the Court of Appeal’s decision Attorney-General v Spencer.15 The issue in that case was whether the relevant statutory amendment was retrospective at all. Declining to apply the relevant legislative amendment to Mrs Spencer (who already had the benefit of a decision in her favour under the earlier law) would by no means have deprived the amendment of all meaning; it would continue to have prospective effect.
[29] By contrast, if this ground of Mr M’s application for review were to prevail then the relevant part of the Amendment Act (the addition of cl 1(e) to sch 1) would have no effect at all. As the chronology above makes clear, all of those who were wrongly placed on the CSO Register in 2016, removed and then re-placed, would be required again to be removed. The unfortunate fact of the matter is that (absent some other distinguishing feature) the amendment was, quite clearly, enacted precisely to include those such as Mr M within the CPSORA’s ambit.
Ground 2: a more rights consistent interpretation of cl 1(e)
[30] The second ground of review raises a matter that does potentially serve to distinguish Mr M from those 77 others with whom he is in an otherwise materially identical position. That is because unlike (at least most of) those others, the expiry date of his qualifying sentence had long since passed by 14 October 2016. There is no dispute that, had he been released on or before that expiry date his release conditions would also have expired and he would not have been “caught” by the amended retrospectivity provision. On one analysis, Mr M has been made subject to the CPSORA only as a result of his conviction for a non-qualifying offence. That there is an inherent inconsistency and unfairness in this result can best be demonstrated by noting that had Mr M committed the qualifying offence with a co-offender who had received exactly the same sentence (with a statutory release date of 10 September 2015), his co-offender would not have been caught by the retrospectivity provision.
15 Attorney-General v Spencer [2015] NZCA 143, [2015] 3 NZLR 449 at [83] – [86].
[31] Mr Powell did not attempt to argue that the retrospective operation of the CPSORA does not run contrary to the right not to be punished twice for the same offence or that the breach could be justified.16
[32] There is no dispute that provisions having retrospective effect should be strictly construed. And where there is an apparent inconsistency between a statutory provision and the New Zealand Bill of Rights 1990 (NZBORA) rights which cannot be justified in terms of s 5, then any tenable, rights consistent (or more rights consistent) interpretation must be preferred.17 So that is the question here. Can the relevant retrospectivity provision be interpreted in a more rights consistent way? Here, that means a way that would exclude more people (or at least Mr M) from its ambit.
[33] For convenience, I repeat the applicable part of sch 1 of the CPSORA again here. It provides that the clause (and therefore the Act) applies to a person who, on 14 October 2016, in respect of a qualifying offence, is—
(e)no longer serving the sentence of imprisonment that was imposed for that offence, but still subject to release conditions following the sentence expiry date of that sentence.
[34] Mr Powell accepted that the relevant sentence expiry date for the purposes of para (e) was 10 September 2015 (the sentence expiry date for the qualifying offence) rather than the sentence expiry date for the notional single sentence. I record my agreement with that position. The expiry date for “that” sentence, namely the sentence imposed for the qualifying offence, cannot sensibly be interpreted as including the expiry date of some other, notional, sentence.18
16 The protection from double jeopardy is confirmed in s 26 of the New Zealand Bill of Rights Act 1990. The unjustified inconsistency of a retrospective CPSORA regime with that right was noted in the Attorney-General’s reports on the original Bills and the 2017 Amendment: Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Child Protection (Child Sex Offender Register) Bill (6 May 2015) and Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Child Protection (Child Sex Offender Government Agency Registration) Amendment Bill (7 March 2017).
17 See Tipping J’s discussion in Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [88] and following.
18 And s 75 makes it clear that cumulative sentences form a single notional sentence only for the purposes there specified, which do not include determining eligibility for registration under the CPSORA.
[35] Notwithstanding that, however, it can hardly be disputed that Mr M was, on 14 October 2016, “still subject to release conditions”. The only possible interpretive issue therefore relates to the meaning of the word “following”. In that respect Mr Ewen submitted that “following” must mean “immediately following”. So, because the release conditions were not imposed “immediately following” the expiry date of the qualifying sentence, Mr M is not “caught”.
[36] But Mr Powell said that “following” must simply mean at any time “after” the expiry of qualifying sentence provided the release conditions were, at least in part, imposed as a result of the expiry of that sentence. In other words, if Mr M would not have been subject to release conditions on 14 October 2016 “but for” his sentence for the qualifying offence then those conditions have been imposed “following” the expiry of that sentence in the relevant sense. And indeed, in Mr M’s case, certain of the special conditions imposed on his release clearly relate to the qualifying offence.19
[37] That said, there is no danger that adopting Mr Ewen’s interpretation would involve interpreting the provision in such a way which “nullifies it or is so inconsistent with the statutory purpose as to do violence to its scheme”.20 As noted earlier, that is because the retrospectivity provision would still apply to most if not all of the other 77 offenders who were otherwise in a similar position to Mr M. Nor is it easy to see that the “cut off” point is designed to achieve any specific purpose (beyond a general purpose of making more people subject to the CPSORA regime) which would be undermined by Mr M being found to fall on the other side of the line. As Mr Powell acknowledged, retrospectivity is, by its very nature, arbitrary in its operation.
[38] Despite all this, I am unable to conclude that para (e) can tenably bear the meaning contended for by Mr Ewen. If “following” means “immediately following” that would effectively mean that Mr M was not subject to release conditions at all as a result of the expiry of his qualifying offence and (as I have said) that was plainly not so. In my view, the interpretation advanced by Mr Powell is the only tenable one here.
19 For example, they included: (a) not to communicate directly or indirectly with the victim (b) to notify his probation officer of any new, or changes to, any intimate relationships and (c) not to have contact with any person under the age of 16 years unless another adult who has previously been approved in writing is present.
20 Zaoui v Attorney-General [2005] 1 NZLR 577 (CA) at [36].
Ground 3: subsequent sentence in (retrospective) breach of NZBORA s 26
[39] Given the undisputed NZBORA breaches involved in Mr M’s case, Mr Ewen submitted that the Court can (and should) fashion a remedy to vindicate the rights that have been breached. And so, he invited me to quash the cumulative sentence imposed on the three 2014 charges. His reasoning was that any such quashing would, necessarily, be retrospective and would mean that Mr M could not have been lawfully subject to release conditions on 14 October 2016, and would not have been an eligible offender under the CPSORA.21 Mr Ewen said that the question of sentencing could then be remitted back to the District Court, which could simply re-impose the same sentence as before.
[40] Mr Ewen emphasised that the creation of such a novel remedy would have only limited effect. It would be available only in a case where a non-qualifying sentence arbitrarily results in an offender’s eligibility for registration. There could be no such remedy where eligibility arose from a sentence for a qualifying offence. Nor (he said) would such a remedy infringe the rule against collateral challenge; because he accepted that the same sentence should be re-imposed by the District Court in due course, the only challenge was to the temporal effect of the original sentence, not to its duration.
[41] I am unable to see that a remedy such as this is open to me. Most fundamentally, Mr M’s case on review is not predicated on any error by the sentencing Judge in the District Court. The fact that Mr Ewen seeks to have the same sentence ultimately re-imposed is telling in that respect. And it would, in my view, be wholly artificial to suggest that the District Court Judge erred “accidentally” because he had not appreciated the future effect on Mr M of some yet to be enacted law. That is what distinguishes the present from the cases relied on by Mr Ewen. For example, in Auckland District Court v Attorney-General the Attorney successfully applied for judicial review of a District Court decision to enter a discharge without conviction.22 The application for review was squarely based on errors made by the District Court Judge in reaching that decision.
21 Martin v Ryan [1990] 2 NZLR 209 (HC) at 240.
22 Auckland District Court v Attorney-General [1993] 2 NZLR 355, (1992) 9 CRNZ 344 (CA).
Conclusion
[42] While I am not unsympathetic to Mr M’s position, I have been unable to discern a reviewable error in his case. While the application of the CPSORA regime to him can certainly be criticised as a matter of principle, it appears to be precisely what the 2017 Amendment was designed to achieve.
[43]The application for judicial review is dismissed accordingly.
[44] Counsel are to advise whether there are issues as to costs, which would ordinarily follow the event and be payable on a 2B basis.
Rebecca Ellis J
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