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[2007] TASSC 26
Supreme Court of Tasmania
2007-04-26
Crawford J, Act J
Original judgment source is linked above.
CITATION: Nicholas v Hibble [2007] TASSC 26
Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - When remedy available - Whether order under Community Protection (Offending Reporting) Act 2005 is a reviewable order.
Justice Act 1959 (Tas), s107(1); Community Protection (Offender Reporting) Act 2005 (Tas), s13(e)(ii).
Aust Dig Magistrates [270]
Judgment Number: [2007] TASSC 26
1 The applicant pleaded guilty before a magistrate to three offences. On complaint 30271/06, the first charge was that on 21 July 2005 he possessed a child abuse product, namely 42 images of young persons on his computer and 86 images of young persons on a compact disc, contrary to the Classification (Publications, Films and Computer Games) Act 1995 ("the Classification Act"), s74(a), and the second charge was that on the same date he possessed a bestiality product, namely two images of bestiality on his computer and 57 images of bestiality on compact disc and two video files of bestiality on his computer and 107 bestiality video files on compact disc, contrary to s74(b). On complaint 40314/06, the charge was that on the same date he made a bestiality product, namely a homemade video of a person having sex with a small female black pony inside his premises at Frankford, contrary to s72(c). He was convicted, fined $4,000 and ordered to pay costs of $160. According to the transcript, he was allowed 10 months to pay, but the record that was made of the order was that he was allowed eight months to pay. Following that being pointed out by the respondent's counsel and at his invitation, it will be ordered, pursuant to the Justices Act 1959, s110(2)(f), that the applicant is allowed to pay the fine and costs within 10 months of 30 January 2007 in place of the recorded order allowing him eight months to pay.
2 It was also ordered, pursuant to the Community Protection (Offender Reporting) Act 2005 ("the Reporting Act"), that the Registrar cause the name of the applicant to be placed on the Register for eight years.
3 The applicant has moved the Court to review the orders. The sole ground for review in the notice to review is expressed as being "that the learned magistrate erred in that the sentence imposed was manifestly excessive in all the circumstances". However, at the hearing the applicant explained that he was seeking a review of the order that was made under the Reporting Act and not of the fine or the order that he pay costs. Further, he frankly admitted that he was not troubled by the requirements of the reporting order insofar as they related directly to him. His concern arising out of the order was that, according to him, it was being used by Children and Family Services to prevent him seeing his daughter. In the course of his submissions, he sought to establish specific errors in the sentencing process. Quite properly, in view of the fact that he was unrepresented, no point was taken by counsel for the respondent that the notice to review did not raise those errors as grounds for review.
4 The first question I consider is whether it is open to the applicant to seek a review of the reporting order. It was not part of the sentence for the offences. The Sentencing Act 1997 makes no provision for such an order. The source for the order is the Reporting Act, which contains no provision that the order is to be taken to be part of the sentence and no provision for any form of appeal from it. The statutory position is to be contrasted with the position under the Crime (Confiscation of Profits) Act 1993, s72(2), which provides that a person against whom a pecuniary penalty order is made under that Act may appeal against the order in the same manner as if it was the sentence, or part of the sentence, imposed on the person in respect of the offence in reliance on which the order was made.
5 There is no common law right of appeal. It is invariably the creation of statute. See Byrnes v R [1999] HCA 38; (1999) 199 CLR 1 at 35 and the cases cited there. Therefore, it seems that there could be no appeal to the Court of Criminal Appeal from a reporting order made by a judge of this Court in the exercise of its criminal jurisdiction, for the right of appeal given by the Criminal Code, s401(1)(c), is only a right to appeal against a sentence. However, it is clear that a reporting order made by a magistrate may be made the subject of a motion to review. The Justices Act 1959, s107(1), simply provides that "a person who is aggrieved by an order of justices may, upon notice in accordance with this section, move the Supreme Court to review that order". There is no reason to confine the usual meaning of the word "order". There is no doubt that what the magistrate did in this case was make an order under the Reporting Act. That Act refers to it as an order. Accordingly, I hold that the applicant was entitled to seek a review of the reporting order made against him.
6 The next question I consider is whether the magistrate had the power to make the reporting order consequent upon the applicant's commission of the offences. On 1 August 2005, the Classification Act was amended by the Criminal Code Amendment (Child Exploitation) Act 2005. Relevantly, par(a) was omitted from s74 and the words "child abuse product or" were omitted from par(c) of s72. In other words, two of the offences committed by the applicant ceased to amount to offences on that date. However, by virtue of the Acts Interpretation Act 1931, s16, he remained liable to be dealt with and punished for those offences notwithstanding the amendments.
7 The Reporting Act came into operation on 1 March 2006. By s12 it declared reportable offences to include a Class 1 offence, a Class 2 offence and a Class 3 offence. By s13(a), a Class 1 offence was expressed to include an offence against a provision listed in Sch1, and by s13(e)(ii), to include, in the case of an offence committed before the commencement of the Act, an offence of a kind referred to in the section. Schedule 1 referred to an offence under s74A of the Classification Act and to no other offence under that Act. Section 74A was inserted into that Act by the Criminal Code Amendment (Child Exploitation) Act 2005 at the same time as the other amendments to which I referred. Section 74A remains in the Classification Act. It makes it an offence if (inter alia) a person possesses child exploitation material. Therefore, the question that needs to be determined for the purposes of s13(e)(ii), is whether the applicant's offence against the old provisions of s74(a), of possessing a child abuse product, was an offence of the same kind as an offence against the new section 74A, of possessing child exploitation material.
8 For the purposes of the old provision of s74(a), a "child abuse product" was defined by s71 as meaning "a publication, film or computer game that describes or depicts a person (whether engaged in sexual activity or otherwise) who is, or who looks like, a child in a manner that is likely to cause offence to a reasonable adult". For the purposes of the new provision of s74A, "child exploitation material" is defined by section 71 as "material that describes or depicts, in a way that a reasonable person would regard as being, in all the circumstances, offensive, a person who is or who appears to be under the age of 18 years - (a) engaged in sexual activity; or (b) in a sexual context; or (c) as the subject of torture, cruelty or abuse (whether or not in a sexual context)". Section 71 defines "material" as including "any film, printed matter, electronic data and any other thing of any kind (including any computer image or other depiction)". Although there are differences, the two offences are of the same kind, that is the creation of offences directed at protecting children from exploitation by the use of their images in an offensive way. The learned magistrate was correct when he determined that the offences were of one kind and that he had the power to make a reporting order.
9 Finally, I consider the submissions of the applicant on their merits. However, it should be observed, so that he clearly understands, that by the Justices Act, s104(4), it is required that what he must establish is an error or mistake on the part of the magistrate or that the magistrate had no jurisdiction to make the order.
10 It was submitted by the applicant that incorrect information was provided to the learned magistrate by his counsel and by a probation officer in a pre-sentence report and as a result, the learned magistrate may not have understood correctly the true position. He said that it was that the discs found by police in his home, and upon which offending material was found, were not hidden away by him, that he had not looked at what was contained in them for a long time and that he had intended to destroy them but had not got round to doing so. It was not asserted to the learned magistrate that the discs were hidden away, merely that the police found them when searching his premises. Further, the applicant's counsel informed the magistrate that the information had been stored on the discs in 2001 and had not been accessed by him since then and that, through inadvertence, he had neglected to delete or destroy them, having moved home. The pre-sentence report stated: "He claimed to have stored the discs away and has not viewed them since 2001. The defendant stated that he had located the discs upon moving house in 2004 and had intentions of disposing of them, however failed to do so." It is clear that the applicant's version concerning the matter were communicated adequately to the learned magistrate. When sentencing, his Honour said that he had "regard to what defence counsel says on his behalf of how these offences came about". No error by the learned magistrate has been demonstrated.
11 The second matter raised by the applicant arose out of a passage in the pre-sentence report. The probation officer stated in it that the applicant "provided contact details for an individual with whom he requested enquiries be made, however it must be noted that this person was not contacted due to him being known as a child sex-offender". The magistrate made no reference to that in his comments on passing sentence or when making the reporting order. However, in the course of hearing submissions from the applicant's counsel, his Honour mentioned "that one of his referees that he gave in the pre-sentence report was a known sex offender". Counsel made no submissions about the matter.
12 To this Court, the applicant said that the true position was that the man in question was only his boss and he had no other association with him. Nevertheless, I can find no error on the part of the learned magistrate and have no reason for concluding that the reasons of the learned magistrate for making the reporting order were contaminated in some way by the statement in the pre-sentence report which, presumably, was a correct one.
13 Finally, the applicant submitted that the requirement that he report for as long as eight years was excessive. That it may have been more than another judicial officer might have ordered is immaterial. I say that by way of explaining that unless the applicant can demonstrate that the period was so manifestly excessive, that is to say so excessive that the only conclusion reasonably open is that error occurred in the sentencing process, his submission must fail.
14 Although a reporting period of eight years is the maximum that may be ordered for a single Class 1 offence, there were sound reasons for imposing that maximum period in this case. They included the following. On 14 December 1992, the applicant was sentenced in the Supreme Court of Western Australia to a total of seven years' imprisonment for 20 counts of indecent dealing with a child under the age of 16 years between 1987 and 1990. The probation officer reported that the applicant committed the offences when residing with his sister. It was further reported that on his own admission, the applicant had minimised the seriousness of his actions constituting the 2005 offences, although more recently he had come to realise the gravity of his behaviour. He had no explanation for his offences and accepted that "there must be something in my make-up to interest me".
15 Despite favourable matters that were put before the magistrate, the order that was made was justified, having regard to the matters to which I have referred. The learned magistrate observed that there were some disquieting aspects of his offending and what appeared to amount to disassociation from the significance of his sexual offending and his possession of the images of child exploitation. It would have been a perverse finding to conclude positively, as required by the legislation, that the applicant did not pose a risk of committing a reportable offence in the future. Major purposes of the Reporting Act are to protect children in the future and to keep track of past offenders' whereabouts, particularly in relation to proximity to children. It may well be an unfortunate result for the applicant that the existence of the order has been used as an argument preventing him from seeing his daughter, but it is something that he brought upon himself through his own actions. The eight year reporting period has not been shown to be manifestly excessive.
16 For these reasons, the motion to review will be dismissed. For the reasons stated in the first paragraph, it is ordered that the order that the fine and costs be paid by the applicant within eight months is quashed and it is ordered, in its place, that he pay both within 10 months of 30 January 2007.
# Nicholas
Hibble \[2007\] TASSC 26
(1999) 199 CLR 1