E v Jordan [2009] TASSC 61

Community Protection (Offender Reporting) Act (Tas), s6(1).

S v Tasmania [2007] TASSC 62, referred to.

Judgment Number: [2009] TASSC 61

1 The applicant pleaded guilty to two counts of indecent assault. He was sentenced by a magistrate to imprisonment for four months and placed on the Register under the Community Protection (Offender Reporting) Act 2005 for three years.

2 He moved the Court to review the sentence on a sole ground of manifest excessiveness. He also moved the Court to review the order placing him on the Register on the basis of two errors of law when interpreting the Act. For the reasons I give, the motions will be dismissed.

3 The charges concerned events in 1983 and 1984 respectively. He was married to the complainant's mother and was about 37 or 38 years old. It was his second marriage. The complainant was a boy aged 14 at the time of the first offence and 15 at the time of the second offence. The first occurred when they were camping. He grabbed the boy's crotch over his clothes, removed his shorts and fondled his penis. The complainant did not want it to happen but was not strong willed enough to stop the applicant.

4 The second offence occurred about 12 months later in the boy's bedroom. The applicant grabbed his penis, masturbated him and then took his penis into his mouth. The boy acquiesced to it happening.

5 It was not until July 2007 that the complainant made a complaint to the police. The applicant was interviewed on 23 July 2008. He made full admissions. He was charged on a complaint that first came before a magistrate on 27 October 2008. In December he indicated that he would plead guilty and he did so on 24 February 2009.

6 The complainant says that he is still affected by the crimes. He had counselling in his early 20s and still seeks it when matters get on top of him. He last attended a counsellor in 2007. He has had three marriages that have broken down. He does not assert that the crimes were a direct cause of the breakdowns but says that his inability to trust his partners flowing from the crimes and their circumstances was a contributing factor.

7 The applicant had two failed marriages but has been married to his third wife for 19 years. He has three children from that marriage who are aged 19, 16 and 13. His second marriage, which existed at the time of the crimes, lasted from 1982 until 1985. There were no children from that marriage, but his wife had three sons of her own. His first marriage lasted some 13 years and there were four children from it, all of whom are over 30 years of age now. He has occasional contact with three of them.

8 He has a sound industrial record. He was self-employed for about 30 years until disabled by a hip operation in 1995. He has been employed for the last five years.

9 In 2007 he underwent an operation on his perineum and suffers from problems with faecal discharge and incontinence. He says that he suffers from Peyronie's disease which has resulted in impotence, erectile dysfunction and associated loss of libido due to pain in the genital area. He also suffers from Type 2 diabetes. His counsel said to the learned magistrate that at the time of the crimes he was having issues with anger management, alcoholism and drug abuse. The matters to which I have referred in this paragraph are not mitigatory, except to the extent that they might support an argument that he is unlikely to offend again.

10 His counsel maintained that he was and is remorseful, and for evidence of that pointed to his admissions to the police and early pleas of guilty.

11 He has no record for other offences. Particularly in support of a submission that no reporting order should be made under the Community Protection (Offender Reporting) Act, it was submitted that his age, state of health and lack of record established on the balance of probabilities that he did not pose a risk of committing a reportable offence in the future. It was claimed that since these crimes he had maintained family relationships with other young and adolescent children.

12 In support of his case that no reporting order should be made he called evidence from a forensic and clinical psychologist, Dr O'Donnell, who voiced an opinion that the applicant poses a low risk of reoffending in the future. She agreed that she could not claim that he poses no risk at all, merely that the risk is low. It is doubtful that Dr O'Donnell's opinion as an expert has much weight and that provided with the same information as she had, the learned magistrate was just as capable of forming his own opinion about the matter. However, Dr O'Donnell's opinion was accepted by his Honour.

13 The matters relied on by Dr O'Donnell were the following:

•

the circumstances of the crimes;

•

the absence of any other offending history;

•

the claim of the applicant that he suffers from Peyronie's disease with consequent impotence, erectile dysfunction and loss of libido, along with other physical problems that impact on his sexual life;

•

his claim that his sexual life ceased several years ago; and

•

lack of evidence that he is likely to come into contact with adolescents for significant periods of time in the future.

14 It was submitted for the applicant to the learned magistrate that having regard to the nature of the offending, the age of the offences and his personal circumstances, any imprisonment should be wholly suspended.

15 The learned magistrate described the offences as constituting very significant breaches of trust, ones that the applicant was able to commit because of the imbalance of power between a stepfather and stepson. His Honour regarded that as a very substantial aggravating factor and as one usually resulting in a gaol sentence. He referred to the victim impact information to which I have referred, the lack of other offending history, the applicant's good industrial record and his significant health problems. His Honour observed that the applicant had expressed a degree of remorse, he had pleaded guilty at an early point in time, he had cooperated with the police and his prospects of rehabilitation were good. Those factors were noted to be mitigatory.

16 Nevertheless, the learned magistrate expressed the view that the nature and circumstances of the offences, the injury to the victim and the requirements of general deterrence demanded that a term of imprisonment be imposed. He considered that a relatively short one was appropriate given the effluxion of time and the nature of the offences, and determined that the sentence should be one of imprisonment for four months.

17 When the sole ground for review of a sentence is manifest excessiveness, the Court must apply the principles settled by authorities such as Whittle v McIntyre [1967] Tas SR (NC 6), unreported 19/1967 at 1 - 2 and Miller v Visser unreported 32/1988 at 11. A magistrate, in deciding what the appropriate penalty is for an offence, is entrusted with a very wide discretion. This Court is not entitled merely to substitute its own opinion. First it must plainly appear that the sentence was so manifestly excessive as to demonstrate error in some way. Even if suspension of an appropriate sentence of imprisonment might also have been open it is not enough to justify overturning the sentence.

18 Particularly relevant to the last point, I conclude that if the imprisonment had been wholly suspended the sentence would not have been manifestly inadequate, having regard to the applicant's age, lack of record, his remorse and the time that has passed since the crimes were committed. Nevertheless, I am not satisfied that the sentence was outside the allowable discretion of the learned magistrate and manifestly excessive to the point of error.

19 His Honour was justified in emphasising the grave breach of trust involved in a stepfather committing crimes such as these against his stepson and the need for general deterrence. On balance, I am not persuaded that a sentencing error occurred.

20 The errors of law asserted for the applicant concern the interpretation of the Community Protection (Offender Reporting) Act, s6(1). It provides that a court "is to" make a reporting order, in the circumstances of this case, "unless the court is satisfied that the person does not pose a risk of committing a reportable offence in the future". Loosely speaking, the reference to a reportable offence includes sexual crimes and offences, and also kidnapping and stalking.

21 It is the applicant's case that the learned magistrate erred by interpreting the passage "unless the court is satisfied that the person does not pose a risk of committing a reportable offence in the future" as meaning that the court must be satisfied that the person poses no risk whatsoever, not even a far fetched or fanciful one. No authority was cited in support, but I will assume that the legal basis for the submission is a correct one.

22 His Honour correctly articulated the requirement as being one that the applicant did not pose a risk of committing a reportable offence in the future. He summarised Dr O'Donnell's opinions as being that he posed "a low risk of committing a reportable offence in the future" but she was unable to say that he posed no risk

23 It was not argued to the learned magistrate that the risk the applicant posed was a far fetched or fanciful one. It was submitted at first that there was no risk whatsoever, but counsel did not maintain that. He submitted that to apply literally the provision requiring "that the person does not pose a risk of committing a reportable offence in the future" would lead to an absurdity, so that no circumstances whatever could satisfy the provision. The only comment the learned magistrate made about that proposition was that "I don't know that it would be nothing ever, but it's certainly a very, very high test". His Honour concluded by saying to the applicant that "I am satisfied on the material before me that you pose a low risk of committing a reportable offence in the future but I am unable to be satisfied that you don't pose any risk". I do not think that I am entitled to infer that the use of "any" instead of "a" is indicative of a misinterpretation of the relevant provision.

24 I can find no reason for concluding that the learned magistrate made a legal error in his interpretation of the kind submitted.

25 It is not a ground of review that it was not open to the learned magistrate not to be satisfied that the applicant did not pose a risk of committing a reportable offence in the future.

26 The other argument for the applicant is that the learned magistrate misinterpreted the provision in s6(1) that "the court is to make an order" (a reporting order) unless the court is satisfied that the person does not pose a risk of committing a reportable offence in the future. The learned magistrate held that because he was not satisfied of that in regard to the applicant "I am obliged to make the order". The applicant's counsel submitted that such a conclusion was erroneous and that the learned magistrate had a discretion whether or not to make the reporting order.

27 The Acts Interpretation Act 1931, s10A(1) is in these terms:

(a) the word 'must' is to be construed as being mandatory; and

(b) the words 'is to' and 'are to' are to be construed as being directory; and

(c) the word 'may' is to be construed as being discretionary or enabling, as the context requires."

28 It is clear from an application of s10A that by using the words "is to" in s6(1), Parliament intended the provision to be directory and not mandatory. That is what was held by the Court of Criminal Appeal in S v Tasmania [2007] TASSC 62 concerning the use of "is to" in s6(2), so that a failure to comply with the subsection by making an order at the time the person is sentenced does not affect the validity of a reporting order that is made later than when the subsection says it is to be made.

29 I reject the submission of the applicant's counsel that the requirement in s6(1) is a discretionary one. If that was the case, the opening words of the subsection would be expected to be expressed as "The Court may make an order" instead of "The Court is to make an order".

30 If the learned magistrate had said that in the circumstances as he found them to be, the subsection directed him to make the order, and he had then made it, there would have been no error. His Honour would have been correct to express the effect of the subsection in that way and he could not be said to be in error for complying with the statutory direction.

31 The remaining question is, did the learned magistrate err by making the order believing that, using his word, he was "obliged" to do so. My conclusion is that there was no error. When Parliament requires that something "is to" be done then the person to whom the requirement is directed may properly be regarded as being obliged to do so.

32 I am not concerned with the question that has arisen in other cases concerning whether a decision or order of an administrative body or judicial officer is invalid for failure to comply with a mandatory or directory provision. See for example, S v Tasmania (supra) and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. I am concerned only with the question whether s6(1) imposed some form of obligation on the learned magistrate.

33 The answer was explained well in "Mandatory and Directory Rules" by J Evans in Legal Studies, Oxford University Press, 1981, at 230:

"First, it needs to be stressed that directory rules are rules which ought to be complied with: they are not rules compliance with which is optional. This is important, because it is possible for a rule to set out a procedure which is just a guide to those wishing to perform some 'act in the law'. (I shall use this traditional terminology hereafter to refer to the act of bringing about some legal effect.) The guide may be followed with safety, but it need not be followed. Rules of the form, 'Applications under this Act may be made in the form set out in the schedule hereto', are of this type. Directory rules, however, are not of this type. First, they are not expressed in this way. Second, when it is argued whether a rule is mandatory or directory it is always assumed that the rule has been breached, the issue being what is the consequence of this: whereas rules which set out a guide cannot be breached."

34 The subsection did not purport merely to give the learned magistrate a discretion. By using the words "is to" Parliament was imposing an obligation.