Sloss v The Queen - [2021] NZHC 2179

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000084 CRI-2021-409-000085 CRI-2021-409-000086

[2021] NZHC 2179

BETWEEN
PHILIP ERNEST SLOSS

Appellant

AND

THE CROWN

Respondent

Hearing: 12 August 2021

Appearances:

A M S Williams for the Appellant M L Wong for the Respondent

Judgment:

23 August 2021

JUDGMENT OF NATION J

Introduction

[1] The appellant, Philip Ernest Sloss, was convicted on three charges of failing to comply with reporting obligations contrary to s 39 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act). He appeals his convictions on the basis the offences could not have been committed because at the time of his alleged breaches his registration was invalid.

Background

[2] Mr Sloss committed sexual offences in 1995 and December 2015. Mr Sloss was charged with the 2015 offences in 2017. He pleaded guilty and was sentenced on 28 June 2017.

SLOSS v R [2021] NZHC 2179 [23 August 2021]

[3] On 14 October 2016, the Act came into force. Mr Sloss was retrospectively placed on the Child Sex Offender Register (the Register) in February 2018.

[4] On 18 January 2019, Mr Sloss was convicted and sentenced on one charge of failing to comply with reporting obligations under the Act. He was sentenced to come up if called upon for a period of six months.

[5] On 22 January 2020, Mr Sloss was charged with a second offence of failing to comply with reporting obligations.

[6] On 23 June 2020, Police obtained and executed a search warrant for Mr Sloss’s property. As a result of the evidence obtained during the search, he was charged with a further charge of beaching his obligations under the Act.

[7] On 21 November 2020, Judge Farish gave Mr Sloss a sentence indication which included the two charges of failing to comply with reporting obligations.

[8] On 27 November 2020, Mr Sloss accepted the sentence indication. He was convicted and remanded to 17 March 2021 for sentencing.

[9] By letter dated 11 March 2021, the Police acknowledged Mr Sloss was “affected by the decision of the Supreme Court”. He is still to be sentenced.

[10] Mr Sloss sought leave to vacate his pleas of guilty to the two most recent charges of failing to comply with reporting obligations under the Act. Judge O’Driscoll dismissed the application.1

The legal developments

[11] On 9 February 2021, the Supreme Court delivered the decision of D (SC 31/2019) v Police.2 By a majority, Winkelmann CJ, O'Regan and Ellen France JJ held the provision that allows a court to place a person on the Register (s 9):3

1 R v Sloss [2021] NZDC 12107.
2 D (SC 31/2019) v Police [2021] NZSC 2, (2021) 29 CRNZ 552.
3 At [3].

… does not apply to offenders such as the appellant who committed a qualifying offence before the Act came into force but were convicted and sentenced after that date. They consider that the Registration Act is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sloss v The Queen

Details

AGLC: Sloss v The Queen [2021] NZHC 2179
Case: [2021] NZHC 2179
Decision Date: 23 August 2021

CaseChat Overview and Summary

The appeal by Philip Ernest Sloss against his convictions on three charges of failing to comply with reporting obligations under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 was dismissed by Nation J in the High Court of New Zealand. Sloss argued that his convictions could not stand because his registration was invalid at the time he allegedly breached his reporting obligations. Sloss submitted that the Child Protection (Child Sex Offender Government Agency Registration) Amendment Act 2021, which validated his registration, did not provide for the retrospective effect of the offence provisions under the Act. This submission was rejected by the Court. The Court found that the Amendment Act expressly made it clear that Parliament intended to retrospectively apply the offence provisions to Sloss. The Court further found that Sloss had no defence to the charges to which he pleaded guilty and on which he has been convicted. This was not unfair in a general sense to Sloss as he believed at the time of his offending that he was subject to the reporting obligations and understood it would be an offence not to comply with them. The appeals against conviction were accordingly dismissed.

Orders