R v Chan [2006] VSCA 125

Sex Offenders Registration Act 2004 ss.11(1), 11(3), 34(1)(b)

Sentencing Act 1991 s.5(2BC)

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

**1 I will ask Nettle, J.A. to deliver the first judgment.

2 On 8 November 2005 the appellant pleaded guilty before a judge of the County Court at Melbourne to one count of rape (digital) (Count 1) and one count of indecent assault (Count 2) committed on 10 August 2004. After hearing a plea in mitigation of sentence, the judge sentenced the appellant on the count of rape to a term of imprisonment of two years and six months and on the count of indecent assault to a term of imprisonment of six months, of which three months were to be served cumulatively on the sentence imposed on the count of rape, making for a total effective sentence of two years and nine months' imprisonment, with a non-parole period of 12 months. Her Honour further ordered, pursuant to s.11(3) of the Sex Offenders Registration Act 2004, that the appellant comply with reporting obligations of the Act and, pursuant to s.34(1)(b) of the Act, that the appellant continue to do so for a period of 15 years.

3 The appellant now appeals with leave against the sentence and orders on the grounds that:**

(1) The individual sentences and total effective sentence are manifestly excessive.

(2) The judge erred by ordering that the appellant be registered pursuant to the Sex Offenders Registration Act 2004 and by ordering that the length of reporting obligation be 15 years.

(3) The judge erred by failing to take into account in fixing the sentence the fact that the appellant was to be registered pursuant to the Sex Offenders Registration Act 2004.

4 The appellant was born in Vietnam of Chinese parents and came to Australia with them in 1972. At the time of offending he was 26 years of age. Despite a dysfunctional family life and a difficult childhood, he had completed a degree in medical laboratory science at the Charles Sturt University in Wagga Wagga, New

South Wales and was working in Melbourne in sales-marketing. He was, however, an immature and vulnerable young man with only an elementary and naïve understanding of human relationships. According to the evidence, his capacity to engage in human relationships was misguided and incompetent and he was obsessed with the difficulty of meeting and engaging with girls.

**5 The victim of the offences was 19 years of age at the time of the offending, but suffering to some extent from an intellectual disability and consequently reduced capacity to protect herself. The appellant and the victim first established contact with each other through an Internet chat room and arranged by telephone to meet for a first date at a shopping centre. After observing the victim from a distance, the appellant approached her at the centre. As he later admitted to police, his intention at the time was to have sexual intercourse with her, but upon meeting her he said that he changed his mind and offered to drive her home. Once there, however, the victim discovered that she was locked out and the appellant assisted her to gain entry to the house through a window, and it was then, he told police, that he decided to revert to his original plan. He began to touch the victim over her clothes, on her breasts, and undid her bra and sucked her nipples. She resisted and told him that she did not sleep with men on first dates. He nevertheless persisted and continued to touch her as he had before, and he also put his hand down her underpants and touched her in the pubic region. She moved his hand away but he persisted further, and he penetrated her vagina with two fingers of his right hand to the extent of their reach. He later admitted to police that he knew she did not want him to do what he was doing, and he saw that she had tears in her eyes and he felt guilty about it, but he persisted for about five minutes before leaving her and departing the house.

6 After his departure, the victim called friends, who in turn called the police, who attended and found the victim outside her house crying and in a very emotional state. She told police of most of what had occurred, except for the fact that she had been penetrated. The applicant was interviewed by police on 15 August 2004 and made full admissions, including that he had penetrated the victim. He admitted that he had realised that the victim did not want to engage in sexual activity with him but that he had persisted for his own gratification. When asked by police how he would describe his actions on the day, he replied that they were inconsiderate, that he had thought only about himself, and that he had total disregard for the victim and had caused her pain. He said that he would like to apologise to her for what he had done to her.

7 It is convenient to begin with the sex offenders registration order. In her sentencing remarks the judge noted that counsel for the appellant had opposed the making of such an order on the basis that the appellant did not pose a risk to the sexual safety of one or more persons or the community, and that counsel had relied in support of that submission on evidence given by Dr Owen, a consultant psychiatrist, on behalf of the appellant that chances of the appellant re-offending were negligible. The judge nevertheless determined to make an order and expressed her reasons for doing so as follows:**

"...Ms McNiff, for the Crown submitted that although the discretionary registration is designed chiefly for the protection of children, your offending occurred in circumstances where you gravitated towards a vulnerable young woman and that the socialisation problems, which appear to underlie your behaviour are indicators of risk.

There is certainly evidence in support of this, and accordingly, I shall make the order. It will require you to report to the police within 28 days of your release from custody and you must continue to comply with the reporting conditions for eight years. Your counsel will tell you more about that ..."

On the following day the judge varied the order by increasing from eight years to fifteen years the period for which the appellant should continue to comply with the reporting obligations. As appears from the transcript, her Honour did so on the basis of a submission made on behalf of the Crown, with which counsel for the appellant did not disagree, that her Honour was bound by s.34(1)(b) of the Act to set the period at fifteen years.

**8 Counsel for the appellant now contends that it was not open to the judge to make an order under the Act.

9 The conditions for the making of an order under the Sex Offenders Registration Act are governed by s.11, as follows:**

(1) If a court finds a person guilty of an offence that is not a Class 1 or Class 2 offence (including an offence that is a Class 3 or Class 4 offence), it may order that the person comply with the reporting obligations of this Act.

(2) A court on sentencing a person for a Class 1 or Class 2 offence committed as a child may order that the person comply with the reporting obligations of this Act if, because of section 6(3)(a), the person is not a registrable offence.

(3) The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.

(4) For the purposes of sub-section (3), it is not necessary that the court be able to identify a risk to particular people, or a particular class of people.

(5) The court may only make an order under this section if it has imposed a sentence in relation to the offence (other than an order referred to in section 137(1)(b), (c) or (d) of the Children and Young Persons Act 1989).

(6) The court may only make an order under this section if an application for the making of the order is made by the prosecution not later than 30 days after the sentence is imposed.

(6A) If an application for the making of an order under this section is made after the sentence is imposed and an appeal against the finding of guilt or sentence is made before that application is determined, that application must not be determined before the appeal is determined.

(8) Division 5 of Part 3 applies to a person subject to an order made under sub-section (2) as it would have if this Act had not contained section 6(3)(a).

1"> **10 Rape is a Class 3 offence and accordingly it was open to the court to make an order pursuant to s.11(3) if the court were satisfied beyond reasonable doubt that the appellant posed a risk to the sexual safety of one or more persons or of the community. As originally enacted, however, s.11(3) did not specifically provide for a standard of proof, and although the section was amended to its present form with effect from 1 August 2005, the amendment was not drawn to the judge's attention at the time of sentencing. It is now properly conceded on behalf of the Crown that her Honour was thereby misled, with the effect that the exercise of her power to impose the order miscarried.

11 The power thus re-opened, it is submitted on behalf of the Crown that this Court should be persuaded beyond reasonable doubt that the appellant poses a risk to the sexual safety of one or more persons or of the community and thus to make an order. Reliance is placed on the fact that the appellant had previously committed sexual offences against his sister and niece which involved penetration, that he has been receiving specialist treatment since 1992, and that despite that treatment he committed the subject offences, knowing at the time of committing them that his actions were wrong and that the victim suffered from mental impairment and was vulnerable, and further that the causal factors of the appellant's offending as identified in evidence by Dr Owen are still present, and that Dr Owen was unable to prescribe any treatment different to that to which the appellant has already been subjected which might better ensure that there are no further relapses.

12 Despite the force of those submissions, I am not satisfied beyond reasonable doubt that the appellant is such a risk as to warrant the making of an order. The only direct evidence on the point was that of Dr Owen, which relevantly was unchallenged, and which was, as has been seen, that the chances of the appellant re-offending were remote. Admittedly, there was also evidence that in 1994, when the appellant was 13 years of age, he had been found guilty in the Children's Court of five charges of rape, one of indecent assault and two of assault with intent sexually to penetrate a child under 10 years. Those charges arose out of an incident in which, after watching a pornographic film, the appellant had penetrated his sister and young niece, and it was conceded that they were matters to be taken into account in assessing whether the appellant was a risk to any person or the community. But I do not consider that they were sufficient to establish beyond reasonable doubt that the appellant constituted a risk of the relevant kind.

13 As the judge below observed, there was certainly evidence to support the Crown's contention that the socialisation problems which appeared to underlie the appellant's behaviour in gravitating towards a vulnerable young woman were indicators of risk. It must also be conceded that Dr Owen may not have been fully apprised of all of the details of the appellant's earlier offending. But at least some of those details were put to Dr Owen in the course of cross-examination and he remained resolute in his opinion that the chances of re-offending were slight, and indeed that the chances were possibly further reduced by reason of the insight acquired by the appellant.

14 Submissions were made on behalf of the Crown to the effect that, inasmuch as a sex offenders registration order following sentence for a Class 3 or Class 4 offence may only be made against an offender who has offended as a serious sexual offender, (scil. the definition of serious sexual offender in s.8(3) of the Act means that the offender must have committed at least two previous offences), s.11(1) should be taken as meaning that if the court is satisfied beyond reasonable doubt in terms of sub-s.(3), the court is bound to make an order.

15 Given the conclusion that I have reached about the risks, it is unnecessary to decide that point, and I would not wish to do so on a final basis without the benefit of full argument. I may say, however, that as at present advised, I incline to the view that Parliament intended to accord the court a degree of discretion. The use of the word "may" in sub-s.11(1) is a strong indicator of that and while there are examples in legislation, of which no doubt the locus classicus is Julius v. Bishop of Oxford[1], where "may" is to be read as "shall" the question is in every case one of construction, as Windeyer, J. said in Finance Facilities Pty Ltd v. Federal Commissioner of Taxation[2]:**

"This does not depend on the abstract meaning of the word 'may' but of whether the particular context of words and circumstances make it not only an empowering word but indicate circumstances in which the power is to be exercised so that in those events the 'may' becomes a 'must'."

**16 Some further assistance is to be derived from the extrinsic materials. In the Second Reading Speech, the Minister spoke of s.11 as empowering the court to make an order in certain circumstances. That also suggests a discretion.

17 Counsel for the appellant submitted that because the discretion in respect of the sex offenders registration order was re-opened, it followed that the sentencing discretion was also re-opened. He argued that the considerations which applied to the order and to the sentence are so much inter-related that in practical terms one is unable to consider one without the other. Reliance was also placed upon what was said by Callaway, J.A. in DPP. v. Ellis[3] and Charles, J.A. in R. v. Fidler[4] about the regard which a sentencing judge might have to the effects of a sex offenders registration order in determining the requirements of general deterrence and community protection. With respect, however, it appears to me that the point is now foreclosed by s.5(2BC) of the Sentencing Act 1991. It was enacted after the decision in Ellis, and provides that:**

"In sentencing an offender a court must not have regard to any consequences that may arise under the Sex Offenders Registration Act 2004 from the imposition of the sentence."

**18 Counsel for the appellant submitted that s.5(2BC) applies only to sex offender registration effects resulting from the commission of a Class 1 or Class 2 offence. He argued, as I understood it, that it is only in case of registrable offender status which results automatically from a sentence for offence, and thus from a Class 1 or 2 offence, that it can be said that the results flow "from the imposition of the sentence". In the case of the sex offenders registration order made in respect of a Class 3 or 4 offence, he submitted, the consequences flow from the order rather than from the imposition of the sentence.

19 Perhaps, that is a possible construction of section. But it seems to me that the far more likely construction is sex offender registration consequences which follow, either directly from the sentence or indirectly, from the making of a registration order which, as is provided for in sub-s.(5) of s.11, can only be made after the imposition of sentence.

20 Counsel for the appellant submitted that in any event there is a range of factors which, taken individually or collectively, lead to the conclusion that the sentence which was imposed was manifestly excessive. They included the appellant's good prospects of rehabilitation, the extent to which registration may exacerbate his social isolation, the extent to which he may find the reporting obligations oppressive, his youth, his remorse, his co-operation with police and early plea of guilty, and his established treatment relationship with Dr Owen, lack of prior convictions and his naivety and incompetence in human relationships, immaturity, lack of self-esteem and negligible risk of re-offending.**

21 I am not persuaded by those submissions. The judge expressly paid regard to each of the identified considerations and I see no reason to think that her Honour did not give them adequate weight in the sentencing process. While the evidence shows that the appellant is socially retarded and inadequate in relationships with women, and while it is plain enough that it was that which resulted in the offending, it is

equally plain that he knew that what he was doing was wrong and such as to cause at least significant emotional harm to the victim. He made a deliberate decision to continue despite the effects of what he did, and for that he needs to be punished. In my view, the low level of sentence imposed adequately reflects the appellant's remorse, co-operation and plea of guilty and his prospects of rehabilitation. I do not accept the contention that the fact that the discretion in relation to the sex offenders registration order is re-opened results in the re-opening of the whole of the sentencing discretion. It appears to me to be plain that the two are separate and discrete. After all, a sex offenders registration order may only be made after sentence has been imposed, and while a sex offenders registration order is included in the definition of "sentence" in s.566 of the Crimes Act, that, as I would think, is only for the purposes of according to this Court jurisdiction to entertain an appeal from the making of such an order.

**22 In the result, I should allow the appeal and set aside the order made under the Sex Offenders Registration Act 2004. Otherwise I would confirm the sentence imposed.

23 I agree. I share Nettle, J.A.'s inclination to view s.11(1) of the Sex Offenders Registration Act 2004 as conferring a discretion upon the court.

(2) The order made in the County Court pursuant to s.11 of the Sex Offenders Registration Act 2004 is set aside. In lieu thereof the Court refuses the application by the respondent to make an

order pursuant to s.11 of the Act on the ground that the Court is not satisfied beyond reasonable doubt that the appellant poses a risk to the sexual safety of any one or more persons or of the community.

(3) Otherwise the sentence passed and the order made in the County Court on 8 November 2005 are confirmed.

[1] (1880) 5 App Cas 214.

[2] [1971] HCA 12; (1971) 127 C.L.R. 106 at 134.

[3] [2005] VSCA 105; (2005) 153 A Crim. R. 340.

[4] [2006] VSCA 17.