Sloss v The Queen
[2021] NZHC 2179
•23 August 2021
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 not sufficiently clear to displace the presumption against retrospective penalties in s 6 of the Sentencing Act 2002.
[12] In response to this decision, Parliament passed the Child Protection (Child Sex Offender Government Agency Registration) Amendment Act 2021 (the Amendment Act) which came into force on 22 March 2021. The amendments were intended “to clarify that the Act provides for registration of all child sex offenders, irrespective of whether offending occurred before or after the Act came into force.”4
[13]The relevant clauses are set out as follows:
5 Further retrospective application to fill gap identified in
D (SC 31/2019) v New Zealand Police [2021] NZSC 2
Committed qualifying offence before, but convicted and sentenced in respect of that offence on or after, 14 October 2016
(1) This clause applies to a person who—
(a)committed before 14 October 2016 a qualifying offence; and
(b)was convicted on or after 14 October 2016 of the qualifying offence; and
(c)on or after 14 October 2016, in respect of that conviction,—
(i)was or is sentenced to imprisonment; or
(ii)was or is sentenced to a non-custodial sentence, and was or is made subject to a registration order.
…
(3) A person to whom this clause applies must be taken to have been, or to be,—
(a)a registrable offender for the purposes of section 7(1) and this schedule (if subclause (1) applies); and
(b)a corresponding registrable offender for the purposes of section 8 and a registrable offender for the purposes of section 7(2) and this schedule (if subclause (2) applies); and
(c)subject to all other provisions of this Act with any necessary modifications.
4 Child Protection (Child Sex Offender Government Agency Registration) Amendment Act 2021, explanatory note.
6 Validation of specified registrations
This clause makes valid, from when it occurred, a registration—
(a) under section 7(1)(a) or (2); and
(b) that occurred on or after 14 October 2016 and before the commencement of the Child Protection (Child Sex Offender Government Agency Registration) Amendment Act 2021; and
(c) that occurred in respect of a person and a conviction specified in clause 5(1) or (2); and
(d) that is invalid, but would be valid if clause 5 were in force when the registration occurred; and
(e) even if the registration is in any way undone or deprived of effect by the Commissioner or a court before that commencement on the ground only that a person to whom clause 5 applies was not a registrable offender.
…
10 Exception for obligations between decision and Amendment Act
(1) Despite clauses 5 to 7, a person to whom clause 5 applies has, under clauses 5 to 7, no obligations of a registrable offender—
(a)after judgment was delivered, on 9 February 2021, in D (SC 31/2019) v New Zealand Police [2021] NZSC 2; and
(b)before the commencement of the Child Protection (Child Sex Offender Government Agency Registration) Amendment Act 2021.
(2) This clause does not alter or affect a registrable offender’s length of reporting period or period on the register.
…
12 Clauses 1 and 5 to 8 override any inconsistent other law
(1) The following clauses had effect, and have effect, despite any other law if, or to the extent that, the other law is inconsistent with them:
(a)clause 1 as inserted on 8 March 2017 with effect on and after 14 October 2016:
(b)clauses 5 to 8.
(2) In particular, any other law, for the purposes of subclause (1), includes any law in all or any of the following:
(a)section 6(1) and (2) of the Sentencing Act 2002:
(b)sections 25(g) and 26(2) of the New Zealand Bill of Rights Act 1990:
(c)D (SC 31/2019) v New Zealand Police [2021] NZSC 2.
Submissions
Appellant’s submissions
[14] Mr Sloss’s position is, at the time he allegedly committed the offences, his registration under the Act was unlawful. It follows, he could not, as a matter of law, be convicted for breaching obligations which were unlawfully imposed on him.
[15] Mr Sloss accepted his registration was valid, pursuant to cls 5(3) and (6) of the Amendment Act. Mr Williams, on behalf of Mr Sloss, submitted the issue is whether the acts or omissions of Mr Sloss could, as a matter of law, have constituted criminal offences at the time they occurred.
[16] Mr Williams submitted this Court is required to identify what the law was at the time of Mr Sloss’s conduct. In his submission, at the time of the conduct, Mr Sloss could not have been subject to lawful registration under the Act and therefore could not have committed the charged offences. Mr Sloss relies on s 26(1) of the New Zealand Bill of Rights Act 1990 (NZBORA) which provides:5
No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.
[17] Mr Williams submitted, on a plain reading, the Amendment Act validates retrospective registrations under the Act, but does not provide for the retrospective effect of the offence provisions under the Act. A reading that does so is inconsistent with s 26(1) of the NZBORA. He submitted, if Parliament had intended that s 26(1) should not apply so that an offender could be convicted of an offence which would not have been an offence at the time it happened, it should have expressly said so.
5 New Zealand Bill of Rights Act 1990, s 26(1).
Respondent’s submissions
[18] The Crown’s position was the Amendment Act provides Mr Sloss’s registration is, and always has been, valid. Ms Wong submitted it followed that Mr Sloss’s breaches of his reporting obligations are also valid.
[19] Ms Wong submitted the provisions of the Amendment Act are unambiguous in retrospective effect. She referred to cl 5(3), submitting Mr Sloss is not only now a registrable offender, but he must “have been taken to have been” a registerable offender. Secondly, she submitted Mr Sloss’s registration is not only now valid, but has always been valid because cl 6 expressly provides that registration was valid “from when it occurred”.
[20] Ms Wong submitted it is artificial, in light of the statutory language, to draw a distinction between the concept of retrospectivity as it applies to registration, and retrospectivity as it applies to the effect of registration. In her submission, this means there is no scope to resort to s 26(1) of the NZBORA to avoid liability for the offences of failing to comply with the reporting requirements of registration.
[21] Ms Wong submitted the effect of Parliament’s decision to retrospectively validate registrations of cl 5(1) offenders was to have also made it an offence to fail to comply with the terms of registration. In her submission, cl 5(3) directly applies to associated offending because the registered person must have been taken to have been a registrable offender and “subject to all other provisions of [the Amendment Act].”6
[22] Ms Wong said this was not a case where any unfairness arises. Mr Sloss believed at all relevant times that he was a properly registered offender and had reporting obligations.
Jurisdiction
[23] Section 231 Criminal Procedure Act 2011 sets out how to commence a first appeal. That section provides:
6 Child Protection (Child Sex Offender Government Agency Registration) Amendment Act 2021, cl 5(3).
231 How to commence first appeal
(1) A convicted person commences a first appeal under this subpart by filing in the first appeal court—
(a)a notice of appeal, if the court appealed to is the District Court, High Court, or Court of Appeal; or
(b)a notice of application for leave to appeal, if the court appealed to is the Supreme Court.
(2) A notice of appeal or notice of application for leave to appeal must be filed within 20 working days after the date of sentence for the conviction appealed against.
(3) The first appeal court may, at any time, extend the time allowed for filing a notice of appeal or notice of application for leave to appeal.
[24] Section 231(2) contemplates that an appeal against conviction will be filed after sentencing has occurred. However, there is no express provision requiring this procedure. It is open to an appeal court to hear an appeal against conviction prior to the imposition of a sentence.7 Given the unique circumstances of this case, I consider it is appropriate to hear the conviction appeal prior to sentencing on the two outstanding charges.
Principles on appeal
[25] This Court may only allow an appeal against conviction if satisfied the Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.”8 A miscarriage of justice means any error, irregularity or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.9 In this section, a trial includes a proceeding in which the appellant pleaded guilty.10
[26] The appeal proceeds by way of rehearing and this Court is required to form its own view of the facts.11 If this Court reaches a different view on the evidence, it
7 See R v Rata [2007] NZCA 431; Mathers v Police [2018] NZHC 1408; Gurney v Police [2017] NZHC 1581.
8 Criminal Procedure Act 2011, s 232(2)(b).
9 Section 232(4).
10 Section 232(5).
11 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].
follows the trial judge necessarily will have erred and the appeal must be allowed.12 The onus is on the appellant to show that an error occurred.
Discussion
[27] It is common ground that Mr Sloss was within the category of offenders who, in terms of the Amendment Act, were eligible to be validly placed on the Register as he was convicted of a qualifying offence before the commencement date of the Act.13
[28] Judge O’Driscoll noted the proposition advanced for Mr Sloss was that the Amendment Act created retrospective registration but did not allow for retrospective offending and penalties.14 The Judge found there were four key reasons why that proposition was incorrect:
[29] Firstly, cl 5(3) of sch 1 provides that a cl 5(1) offender must be taken to have been a registrable offender and subject to “all other provisions of the Act” with any necessary modifications. Clause 5(3) has the effect of subjecting cl 5 offenders to all other provisions of the Registration Act, which naturally includes the offence provisions. In that respect, I disagree that Parliament has failed to retrospectively apply the offence provisions to cl 5(1) offenders. Parliament has done so expressly.
[30] Secondly, cl 5(3) provides that a cl 5(1) offender must be “taken to have been” a registrable offender, words which denote a retrospective effect. Clause 6 puts the retrospective operation beyond doubt, providing that “this clause makes valid, from when it occurred, a registration” of a cl 5(1) offender. Clause 6 validates a registration that was invalid at the time it was made but would have been valid had cl 5 been in force at the time.15 As above, the defendant’s registration would have been valid had cl 5 been in force at the time.
[31] If the defendant’s registration was valid and lawfully imposed at the time it was made, then his reporting obligations were also valid and lawfully imposed. The registration and the reporting obligations are not severable in that respect. The defendant breached those validly imposed obligations.
[32] The effect of the retrospectivity provisions is that the obligations were valid at the time the offence occurred, and therefore a breach of those obligations did constitute an offence at the time it occurred; I disagree that the defendant’s actions could not have constituted an offence at the time the alleged offence occurred. It may seem artificial, but that is the effect of the retrospectivity provisions.
12 At [38].
13 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, sch 1, cl 1(1).
14 R v Sloss, above n 1.
15 Schedule 1, cl 6(d).
[33] Thirdly, if the defendant’s argument is correct, it is difficult to discern the purpose of cl 10, which creates “an exception” and relieves offenders of their registration obligations during the lacuna. Clause 10 is clearly directed to ensuring that cl 5(1) offenders are not held liable for breaching their reporting obligations because, as a result of the Supreme Court decision, they reasonably thought the obligations no longer applied. If, as the defendant contends, cl 5(1) offenders such as the defendant were not validly registered or liable for breach of their reporting obligations, cl 10 would be unnecessary.
[34] Finally, the defendant’s argument relies on s 26 of the New Zealand Bill of Rights Act 1990 and Supreme Court decision in D (SC 31/2019) v Police. Clause 12 specifically provides that cls 5 to 8 prevail over s 26 of the New Zealand Bill of Right Act and the decision in D (SC 31/2019) v Police.
[29] I consider the impact of relevant legislation and the Supreme Court’s judgment against the facts of the case, in particular the two most recent charges.
[30] On 7 February 2018, Mr Sloss was advised he had been placed on the Register. At the time of this notification, he was issued with a notice of registration which advised him of his reporting obligations.
[31] As a person on the Register, Mr Sloss had to provide to Register staff details of any username for any online social network within 72 hours of the account being created.
[32] In April 2020, Mr Sloss used an Instagram account to send a young female a friend request. On 5 May 2020, the Police Intelligence department confirmed the existence of an Instagram account and identified Mr Sloss’s name and photograph on the profile page. He did not report the details of the Instagram account to Register staff within 72 hours of the account being created.
[33]Those matters were the subject of one charge.
[34] In June 2018, Mr Sloss began messaging a young teenage victim via Snapchat under an assumed username, using a Facebook account. In June 2019, he began messaging the same victim through Instagram under another assumed username. He used the Instagram account until January 2020. He did not report the details of the account to Register staff within 72 hours of acquiring them. That was the subject of another charge.
[35] The requirement to report the specified information was an effect of registration as set out in ss 16 and 17 of the Act. Section 39 made it an offence for an offender to fail to comply with the reporting obligations without reasonable excuse. An offence was punishable by imprisonment for up to one year and/or a fine of up to
$1,000.
[36] The consequence of the Supreme Court judgment in D v Police was that Mr Sloss had not been validly placed on the Register in February 2018.16 After that judgment, Mr Sloss would have had a defence to the charges for which he has been convicted because he had not been validly placed on the Register. On that basis, his actions for which he has been convicted were not an offence.
[37]Section 26(1) of the NZBORA says:
26 Retroactive penalties and double jeopardy
(1) No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.
[38] The argument for Mr Sloss is that, for s 26(1) to be overridden by legislation, Parliament had to expressly make it clear that this is what it intended to do. The issue is whether it is clear from the Amendment Act that Parliament did intend to retrospectively provide for a person’s previous conduct to be an offence. Undoubtedly, it is clear from the Amendment Act that Mr Sloss’s placement on the Register in February 2018 is, for all purposes, to be treated as a valid registration and so was valid at the time of his latest admitted offending.
[39] I consider Parliament also made it clear, through cl 5(3), that from the time Mr Sloss was placed on the Register he had to be taken to have been registerable offender subject to all provisions of the Act with any necessary modifications. Parliament had thus made it clear he had to be taken as subject to the provisions of the Act including the reporting requirements and the provisions which made non-reporting an offence. In saying this, the Amendment Act was inconsistent with s 26(1) of the NZBORA in that it legally made what Mr Sloss had done before the passing of the Amendment Act
16 D (SC 31/2019), above n 2.
an offence when, in accordance with the Supreme Court’s judgment in D v Police, it would not have been.
[40] Parliament made it clear that it intended to override s 26(1) of the NZBORA by saying in cl 12 that cls 5 to 8 of the Amendment Act were to have effect and to have “had effect” despite any other law if or to the extent that the other law is inconsistent with them. Section 26(1) of the NZBORA was a law inconsistent with cl 5(3).
[41] But for the Amendment Act, Mr Sloss’s actions would not have been an offence by reason of the Supreme Court’s judgment in D v Police. But for that judgment and in accordance with judgments of the District Court, High Court and Court of Appeal, his placement on the Register would have been valid and he would have offended when he did not comply with his reporting obligations as a registered offender. Parliament had however made it clear that the judgment in D v Police would not provide a defence by stating, through cl 12(2), that cl 5 was to have effect despite the law as stated in D v Police.
[42] Parliament could have made the position even clearer by referring to s 26(1) as well as s 26(2) of the NZBORA in s 12(2) of the Amendment Act. However, the specific reference to s 26(2) of the NZBORA did not mean that s 26(1) was not to be considered as an aspect of “any other law” over which s 5 of the Amendment Act was to have precedence.
[43] I also agree with Judge O’Driscoll that it is apparent from cl 10 of the Amendment Act that, with that Amendment Act, Parliament contemplated that a person who had been previously on the Register but whose registration was made valid by the Amendment Act would be subject to the obligations of being on the Register, and thus the offence provisions over the period after the offender had been placed on the Register through to the passing of the Amendment Act. Parliament recognised it would be unfair for certain persons on the Register to be convicted of an offence for failing to comply with obligations over the period between the delivery of the Supreme Court judgment and the passing of the Amendment Act. Over that period, a person placed on the Register for offending that occurred before 14 October 2016 could have believed their placement on the register was not valid. Parliament dealt with that
situation by expressly stating in cl 10 that such a person would not be liable for failing to comply with obligations as a registerable person over that period.
[44] Clause 10(1) would not have been necessary if Parliament had not intended the Amendment Act to allow a person, whose registration had been retrospectively validated, to be prosecuted for failing to comply with obligations they had through being on the Register over the period between their placement on the Register and the passing of the Amendment Act.
[45] On the second reading of the Amendment Bill, an MP asked this question of the Minister of Police in relation to cl 12:
The second [question] is in relation to clause 12, which is the overriding of any inconsistent other laws, and this is a very important section because, essentially, this is the section we hope means we don’t have to come back here and do this again at some point, because it, essentially, overrides section 6 of the Sentencing Act and sections 25 and 26 of the New Zealand Bill of Rights Act and this judgment, and whether the language in that section is expressive enough and whether the Minister is confident that that language is expressive enough to express Parliament’s intent that we are overriding these other pieces of legislation. I do note the Supreme Court did refer to the language used by the Parole Act in relation to its retrospectivity and provided some recommendations around the type of language which could be used, such as “to avoid all doubt”, “to avoid doubt” and whether this particular section avoids all doubt and with expressive enough language so that this is not an issue which has to be potentially traversed again.
[46] In the debates before Parliament, it was only the Green Party who opposed the amendment because it breached what Ms Ghahraman said were two fundamental human rights in New Zealand, referring to “s 25, the minimum standards for criminal procedure, and s 26, the rule against retrospective punishment”.
[47] It was apparent from the debate that Parliament was aware that provisions in the Amendment Act overrode s 26 of the NZBORA. The then Bill was passed with other cross-party support. I am satisfied this happened with Parliament intending to override s 26 of the NZBORA.
[48] I accordingly agree with the District Court Judge that, with the Amendment Act, Parliament did make it clear that, at the time Mr Sloss committed the offences on the charges to which he has pleaded guilty, he had been validly placed on the Register.
He was subject to the reporting obligations that went with being on the Register. For all purposes, he had to be taken as having to meet those obligations and thus subject to the provisions of the Act which made it an offence for him not to comply with those obligations and to the potential penalties that could be imposed where he had pleaded guilty to such offences.
[49] This was not unfair in a general sense to Mr Sloss. At the time of his offending, Mr Sloss believed he was subject to the reporting obligations and understood it would be an offence not to comply with them.
[50] With the Amendment Act, Mr Sloss thus has no defence to the charges to which he pleaded guilty and on which he has been convicted.
Conclusion
[51]Mr Sloss’s appeals against conviction are accordingly dismissed.
Solicitors:
AMS Williams, Barrister, Christchurch Crown Law, Wellington.
4
0