Community Protection (Offender Reporting) Act 2004

Connell v R (No 6) (1994) 12 WAR 133

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Perrin v Jackson [2008] WASC 77

Riggal v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211

Salmat Document Management Solutions Pty Ltd v R [2006] WASC 65

1 GNR stands charged with one offence, namely that on a date unknown between 9 March 2012 and 11 May 2012 in regional Western Australia, he sexually penetrated HSAH, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis.

2 GNR pleaded guilty to the offence in the Magistrates' Court but, at the request of his counsel, a conviction was not then recorded. He has been remanded to this court for conviction and sentence.

3 GNR seeks a stay of the prosecution on the basis of the continuing relationship between himself and HSAH and by reason that a conviction will not only result in a stigma attaching both to himself and the child, but will also require that he be subjected to onerous reporting responsibilities under the provisions of the Community Protection (Offender Reporting) Act 2004.

4 The State of Western Australia has opposed the application.

5 GNR was born on 24 June 1993. HSAH was born on 14 March 1998. They met by chance whilst travelling on public transport at some undisclosed time in 2011 when GNR was 18 years of age and HSAH was 13 years of age. It would seem therefore that they met after June 2011. They soon commenced a relationship.

6 At first, HSAH lied to GNR about her age by informing him she was 18 years old.

7 Approximately one month after meeting, GNR and HSAH began a sexual relationship. Shortly thereafter, GNR learnt that HSAH was in fact only 13 years of age. He then did not wish to continue the relationship, but HSAH persuaded him otherwise.

8 About two months after commencing their relationship, GNR moved to the country town in which HSAH resided with her family and he began to live with her, within her family home.

9 On 1 January 2013, HSAH gave birth to GNR's child. The birth was reportedly two months premature and hence, the indictment alleges sexual penetration by GNR of HSAH on a date unknown between 9 March 2012 and 11 May 2012.

10 Following the birth of the child, GNR and HSAH moved to Perth and they now live with their baby in GNR's family home with his parents. They continue their relationship, which is supported by each of their families.

11 HSAH refused to make any complaint against GNR. However, GNR was interviewed by the police. He cooperated and made full admissions of the alleged offending. Those admissions constitute the entirety of the State case against him.

12 GNR is now only 20 years of age. HSAH is now 16 years old. She has not made any complaint against GNR. The State case is based solely upon GNR's admissions.

13 There is no suggestion that HSAH was particularly vulnerable, that her will was overborne, that there was any undue influence against her or that there was any grooming of her by GNR. Indeed, the offending was committed in consensual circumstances within a relationship. GNR and HSAH remain in a committed relationship, supporting each other and supported by each of their families. Therefore, his criminal culpability is extremely low.

14 It was submitted that public confidence in the administration of justice will be undermined if the prosecution continues against GNR in the unusual circumstances of this case. This offending is not deserving of any real punishment and hence, unless prosecution of the indictment is stayed, its continuation will involve an unacceptable injustice and it will be unjustifiably oppressive in its consequences.

15 Mr Levi SC, counsel for GNR, made the submission that a conviction of GNR will come at too high a price in that the consequences for GNR in terms of the mandatory reporting requirements pursuant to the Community Protection (Offender Reporting) Act 2004 will be onerous and, even if a spent conviction order were to be granted, he would still be required to report to the Commissioner of Police for 15 years.

16 Further, Mr Levi referred to the stigma which will attach to GNR, not only in terms of his conviction, but also to the child who will bear the burden of having been born into a relationship from which his father will carry the stain of being a serious sex offender.

17 It is the case, that, in Riggal v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211, [79], Wheeler JA referred to the adverse consequences of child abuse cases and queried whether some reform would be desirable in exceptional circumstances, such as in the facts of that case as set out at [2] - [8] of her reasons. No such reform, which might have resulted in an amelioration of those adverse consequences for GNR, has occurred. As Wheeler JA indicated, such reform is not a matter for any court. GNR's case might also be thought to have some unusual, if not exceptional, circumstances. Clearly however, the consequences for GNR of a conviction include the onerous reporting requirements and the stigma attached to the conviction, both for himself and the child, even though his relationship with HSAH continues.

18 The State's position was that GNR admitted the offending to the police in his video recorded interview. All evidence against him has been legally and properly obtained. The prosecution has progressed in a timely manner. All disclosure requirements have been met.

19 Counsel for the State, Ms Z M M Jenkins, submitted that nothing has been done during the investigation, or in the prosecution, of GNR's case which has been unfair to him.

21 Further, there is a legitimate public interest in pursuing serious indictable offences, of which, the present charge, is an example. Therefore, the public interest and the need to maintain public confidence in the administration of justice is in favour of prosecuting offences of this nature. There are no exceptional circumstances to justify staying the prosecution.

22 In written submissions filed after the hearing of this application, Ms Jenkins detailed the mandatory reporting obligations, following conviction, with which GNR will be required to comply if this application fails. There is no need to specify those requirements here. However, Ms Jenkins submitted that Parliament has set mandatory reporting requirements where persons are convicted of particular offences, of which the present offence is one example. It is not for a court to usurp the legislative consequences of a conviction for the subject offence. The reporting requirements do not form any part of the sentence to be imposed following conviction.

23 The information provided by Ms Jenkins also reveals that there is some flexibility open to the authorities as to how offenders may be dealt with after their initial report. That will depend upon a risk assessment and in the absence of such an assessment, it would be speculative to conclude the level of reporting requirements in respect of GNR.

24 The application is brought pursuant to the provisions of the Criminal Procedure Act 2004. Relevantly:

90(1) A superior court to which an accused is committed on a charge or in which an accused is indicted on a charge may at any time order that the prosecution of the charge be stayed permanently, if it is in the interests of justice to do so.

25 As can be seen, the stay application may be brought 'at any time'. The requirement is that before allowing such an application, the court must be satisfied that 'it is in the interests of justice to do so'.

26 The evidential burden of proving that a stay of the proceedings ought to be granted rests on the applicant, as ordinarily, an indictment will proceed to trial, or sentencing upon a plea of guilty.

27 The criteria for granting a permanent stay are varied. There are no fixed categories. The power is however, essentially concerned with preventing an abuse of process. Whatever the circumstances which will lead a court to permanently stay a prosecution, those circumstances will be exceptional, or rare. The power to stay the prosecution should be used 'sparingly and with the upmost caution': Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 76 (Gaudron J).

28 The determination whether there should be a stay involves the subjective balancing of a variety of factors, including the requirements of fairness to the accused, the legitimate public interest in the disposition of charges on serious offences, the conviction of those guilty of the crime and the need to maintain public confidence in the administration of justice: Connell v R (No 6) (1994) 12 WAR 133, 160.

29 In Salmat Document Management Solutions Pty Ltd v R [2006] WASC 65, McKechnie J said that:

[39] ... The identification of the interests of justice cannot subjectively relate to an individual Judge's own conception as to where the interests of justice may lie. However, it may not be possible to set out exhaustively the reasoning process which may lead a Judge to conclude that the interests of justice require that an indictment be stayed. The interests of justice in a particular case may be no more than a conclusion made after ascribing weight to a whole range of factors.

...

[42] In deciding whether the interests of justice require a stay of an indictment, a Judge should be careful not to stray beyond a proper judicial role. The institution and continuation of judicial.

[43] A Judge is not a Director of Public Prosecutions. It is not enough for a Judge to conclude that were he or she to exercise the prosecutorial discretion, in accordance with published prosecutorial guidelines, an indictment would not be presented or would be discontinued. A Judge can only exercise the power if satisfied that the processes of the Court, having being invoked, cannot continue in the interests of justice.

...

[54] The proper approach to take is that a Judge hearing an application under s 90 of the Criminal Procedure Act 2004 is not constrained to find that a continuation of the proceedings would be oppressive or an abuse of process. The Judge is given a discretion in terms of the widest possible ambit to decide to stay a charge if it is in the interests of justice to do so. The 'interests of justice' is not susceptible of any precise definition. The content of the interests of justice can only be given form by the facts of a particular case. Illustrations from other cases where courts have decided that the interests of justice either do or do not require a stay have limited utility and almost no precedential value. Above all the touchstone is fairness. This involves fairness both to the prosecution and the defence. Fairness is relative and the Courts recognise that some trials may never be completely fair. Even parliament has acknowledged this: Evidence Act 1906 (WA) s 31A. However, the touchstone remains fairness.

30 Further, if a judge has the power to decide not to hear a case because he or she does not think it should be brought, it may soon be thought that the cases which he or she allows to proceed are brought with his or her consent or approval: Perrin v Jackson [2008] WASC 77, [42]. This highlights the need to separate the executive function of instituting and continuing an indictment from the administration of justice when continuing to deal with the indictment in court.

31 Before proceeding, it is also appropriate to have regard to the comments of Wheeler JA from Riggal in relation to s 321 of the Criminal Code, being the relevant offence in respect of which GNR pleaded guilty in the Magistrates Court. She determined it was

necessary to consider the 'mischief' at which s 321 is directed and, in particular, to consider to the extent that it can be discerned, the reason for the imposition of strict liability in relation to offenders who are more than three years older than those with whom they have sexual relations [17].

For reasons which I propose to develop in some detail, the purpose of the legislation should be understood in the way in which this court described it in Marris v The Queen [2003] WASCA 171 and again in Deering v The State of Western Australia [2007] WASCA 212. Of that latter decision, I said (Owen & Miller JJA agreeing) (at [17] - [18]):

These observations invite attention to the legislative purpose of the prohibition of sexual penetration of a child between the ages of 13 and 16. It is, no doubt, undesirable that young people should embark upon sexual activity at an age at which they may be unable to fully comprehend or to cope with the social and emotional consequences of that activity. To that extent, the legislation is intended to protect young people 'from themselves'.

However, the legislation is also, and, in my view, more importantly, directed to ensuring that those who do not consent to sexual activity are not required to engage in it. In this context, it is recognised that the capacity of a person in this age group to resist moral, social, emotional or other pressure from a person more mature than themselves may be very limited. I set out some of the legislative background in Marris v The Queen [2003] WASCA 171. At [13] of that decision, I noted the comment by the Hon J M Berinson, the then Attorney-General, that ' ... the clear intention and target is not sexual activity as such, but sexual activity involving some element of abuse'. I said there, and I repeat, that that is a concept of considerable importance in relation to sentencing in respect of offences of this kind. The greater the element of abuse, as evidenced by matters such as disparity in age, or the use of force, or other types of pressure, or of a pattern of 'grooming' behaviour, or a betrayal of trust, the greater the culpability.

This Court has often encountered cases of sexual abuse of children, in which children have acquiesced, or children have been confused as to how they should respond, or in which, particularly if the abuse is introduced gradually and by a liked or trusted adult (in a way often described as "grooming"), a child may come to enjoy in whole or in part the sexual attention to which they are subject. Such reactions are far from a free and voluntary consent. Indeed, reactions of that kind often contribute to the harmful effects of sexual abuse upon a child, by making the child feel guilt or shame for what he or she may perceive to be some complicity in the abuse.

Further, as I noted in Deering, it is, in any event, undesirable that young people should embark upon sexual activity at an age at which they may not be able to fully comprehend or cope with the social and emotional consequences of it. While some may have that comprehension and capacity, particularly as they approach closer to 16, it is necessary for legislation to draw an arbitrary line, which must be respected. It follows that, even where a young person between 13 and 16 does appear to wish to engage in sexual activity, there is a duty cast upon others to refrain from encouraging or acting upon those wishes. The more mature the other person, the greater the degree of self-control which should be demanded of them.

The matters referred to above, reinforce the view that I expressed in Marris that the presence, or otherwise, of an element of "abuse" is a concept of considerable importance in relation to sentencing for offences of this type. The greater the element of abuse, generally evidenced by matters such as significant disparity in age, or use of force, or other types of pressure, or grooming behaviour, the greater the criminality. Generally, a sensible exercise of the prosecutorial discretion will have the result that, where there is not even arguably an element of abuse, a matter will not come before the court for sentence.

34 It is relevant to consider that, under s 321(2) and (7) of the Criminal Code, the maximum penalty for the subject offence is 14 years imprisonment. This is one marker of the seriousness of the offence.

35 Generally, the seriousness of the subject offence and the need to maintain public confidence in the administration of justice will ordinarily require that the prosecution of such an offence should proceed to conclusion, including conviction and sentence at which time, principles of sentencing will require, amongst other things, the imposition of a penalty designed to have a general deterrent effect on those people within the community who might be inclined to offend in this way, and who, upon learning of such penalty, will hopefully be deterred from so offending.

36 The executive function of instituting the current indictment and now, of continuing it, has fallen to the Office of the Director of Public Prosecutions for Western Australia. Ms Jenkins advised that the Director himself, Mr J McGrath SC, personally determined that the exercise of prosecutorial discretion required the institution, and now the continuation, of the indictment in this matter. This determination is, no doubt, in accordance with published prosecutorial guidelines. As observed above, it is not enough for a judge to conclude that were he or she to have exercised the prosecutorial discretion, in accordance with published prosecutorial guidelines, an indictment would not have been presented. Rather, regard must be had to the interests of justice and the touchstone remains fairness, both to the prosecution and the defence. The public interest in the disposition of charges on serious offences, the conviction of those guilty of the crime and the need to maintain public confidence in the administration of justice must also be considered.

37 In creating offences set forth in the Criminal Code, Parliament has sought to reflect community attitudes. The 'mischief' to which s 321 is directed is abuse as set out in the observations of Wheeler JA in Riggal outlined above. Here, the only abuse raised by the State relates to the disparity in age between GNR and HSAH. He is nearly 4 years and 9 months older than she is. Their relationship began when she was 13 years of age.

38 At the time of the offending specified in the indictment, GNR was 18 years of age and he well knew HSAH's age, which was then probably 14 years. He knew of their age disparity well before the period of offending set out in the indictment, which comprises a representative charge. What their relative levels of maturity were at the time is not known.

39 GNR will be 21 years of age in two months. HSAH turned 16 years of age last month.

40 From the submissions filed on behalf of GNR, he sought to cease the relationship with HSAH once he ascertained her true age of 13 years. However, she convinced him to continue in that relationship. It continues today. She was present in court to support GNR when this application was heard. Their ongoing relationship is supported by each of their respective families. GNR's offending might therefore be regarded as lower end offending.

41 Be that as it may, Parliament has enacted a law to deal with the age of consent by drawing an 'arbitrary line (of 16 years), which must be respected', per Wheeler JA in Riggal at [22] above.

42 Another arbitratory line drawn by Parliament relates to the defence under s 321(9) of the Criminal Code which provides, in part, for an accused person who is not more than three years older than the child victim of the offence. This reveals Parliament's intention to not prosecute would be offenders close in age to children under 16 years. However, GNR is outside that three year limit. The reference to the three year age difference does however have some relevance to the age disparity between GRN and HSAH and therefore, the level of abuse.

43 The community could reasonably conclude that the prosecution should continue in circumstances in which GNR, as an 18 year old adult, continued his sexual relationship with HSAH, after becoming aware of her true age of 13 and then 14 years. He thereby committed a serious offence.

44 The DPP has personally approved the institution and continuation of the indictment.

45 The prosecution and continuation of the indictment cannot in any sense be said to be an abuse of process. The power to grant a stay is not however, solely determined by the need to identify an abuse of process. The power to grant a stay should be used sparingly and with the upmost of caution.

46 Notwithstanding that the criteria for granting a stay may be varied, the interests of justice in this matter are such that the stay should not be granted. That there will be mandatory reporting requirements is a matter personal to GNR, as is the stain of conviction, which will necessarily reflect upon him and to a certain extent, his family. However, such matters are the consequences of conviction in respect of a serious offence and do not outweigh the requirement of proceeding to conviction. The reporting requirements do not form any part of the sentence to be imposed.

47 If, on the hearing of this application, regard were to be had to the reporting requirements then, this would circumvent the purpose of those legislative requirements. Even if regard were had to the reporting requirements, then, it cannot be said that circumventing the reporting requirements created by the Community Protection (Offender Reporting) Act is in the interests of justice. As previously noted, any reform of these requirements is not a matter for a court. In any event, the reporting requirements themselves do not, without more, outweigh the requirement of proceeding to conviction. Fairness to the DPP, on behalf of the State of Western Australia and its community, requires the continuation of the indictment, the disposition of a charge alleging a serious offence and a conviction in respect of such an offence in order to maintain public confidence in the administration of justice.

48 The interests of justice require that the indictment should proceed to finalisation, including conviction and sentence which will need to be structured in accordance with the Sentencing Act 1995 and sentencing principles in such a way as to accommodate, amongst other things, penalty and personal and general deterrence, even if this particular offending might be categorised as a less serious example of an offence of this kind, given the circumstances of the matter, thereby requiring a lesser penalty than usual for personal deterrence.

49 In a matter in which there is no suggested abuse of process, then any application to stay an indictment on the basis of hardship to an offender following conviction arguably amounts to no more than asking a judge to substitute his or her own view of the prosecutorial discretion vested in the DPP. Care must be taken to not stray beyond a proper judicial role. To allow such an application to succeed would be to so stray.