R v Cheetham [2006] VSCA 126

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

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

2 This is an application for leave to appeal against the imposition of a sex offender registration order made under the Sex Offenders Registration Act 2004. The question in issue is whether the judge below erred in the interpretation of s.34(4) of the Act.

3 The scheme of the Act is to require a "registrable offender" to comply with reporting obligations prescribed by Division 1 of Part 3 of the Act. Essentially there are two categories of offender: those who become registrable offenders by being sentenced for a Class 1 or Class 2 offence, and those who become registrable offenders upon the making of an order after being sentenced for a Class 3 or Class 4 offence.

4 Class 1 and Class 2 offences are designated sexual offences against children and, because they are offences against children, they are regarded as being more heinous than other sexual offences. Accordingly the Act operates such that, if a person is sentenced for a Class 1 or Class 2 offence, the person automatically becomes a registrable offender and thus bound to comply with the reporting obligations under the Act.

5 Class 3 and Class 4 offences are designated sexual offences against adults and, in the sense that they are offences against adults as opposed to children, they are regarded as being less heinous than Class 1 and Class 2 offences. They do not lead automatically to the offender becoming a registrable offender. The Act provides instead that the court may make a sex offenders registration order against a person found guilty of a Class 3 or Class 4 offence after sentencing the person for that offence, if the court is satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more persons or of the community. Subject to what is

said below, the effect of ss.7(1)(c) and 11 would appear to be that, upon the making of the order, the person becomes a registrable offender and thus bound to comply with the reporting obligations under the Act.

6 Section 34 provides for the period for which a registrable offender must comply with the reporting obligations under the Act, as follows:

SEX OFFENDERS REGISTRATION ACT 2004 - SECT 34

"34. Length of reporting period

(1) A registrable offender must continue to comply with the reporting obligations imposed by this Part for -

(a) 8 years, if he or she has only ever been found guilty of a single Class 2 offence; or

(b) 15 years, if he or she -

(i) has only ever been found guilty of a single Class 1 offence; or

(ii) has ever been found guilty of 2 Class 2 offences; or

(c) the remainder of his or her life, if he or she -

(i) has ever been found guilty of 2 or more Class 1 offences; or

(ii) has ever been found guilty of a Class 1 offence and 1 or more Class 2 offences; or

(iii) has ever been found guilty of 3 or more Class 2 offences.

Note: A life-long reporting obligation may be suspended under Division 6.

(2) A reference in sub-section (1) to an offence extends to an offence committed before the commencement of that sub -section.

(3) For the purposes of this section -

(a) 2 or more offences arising from the same incident are to be treated as a single offence; and

(b) 2 or more offences arising from the same incident are to be treated as a single Class 1 offence if at least one of those offences is a Class 1 offence.

Note: The meaning of 'single offence' is qualified by section 5(1).

(4) For the purpose of this Division, a person subject to a sex offender registration order -

(a) if found guilty of a Class 3 offence is deemed to have been found guilty of a Class 1 offence; and

(b) if found guilty of a Class 4 offence or any other offence other than a class 3 offence is deemed to have been found guilty of a class 2 offence."

7 As has been seen, the term "registrable offender" prima facie applies equally to a person who has become a registrable offender automatically upon being sentenced for a Class 1 or Class 2 offence and a person who has become a registrable offender by being subjected to a sex offenders registration order after being found guilty of a Class 3 or Class 4 offence and sentenced for that offence. As can also be seen, s.34 provides separately for the two categories of offender. Section 34(1) applies to persons who become registrable offenders by being sentenced for a Class 1 or Class 2 offence. Section 34(4) provides for persons who become registrable offenders by reason of being subjected to a sex offenders registration order after being found guilty of a Class 3 or Class 4 offence and sentenced for that offence.

8 The appellant argued before the sentencing judge and also before this Court that s.34(4) does not operate to deem a Class 3 or Class 4 offence to be a Class 1 or Class 2 offence unless the offender is already the subject of a sex offenders registration order at the time of being sentenced for the offence to which s.34(4) refers. It followed, it was submitted, that inasmuch as the applicant was not subjected to a sex offenders registration order until after conviction for the offences the subject of the appeal, s.34(4) did not operate to deem the Class 3 and Class 4 offences for which he was sentenced to be Class 1 and Class 2 offences for the purposes of the Act.

9 The judge rejected that submission, and so do I. Perhaps, if the section is read literally and in isolation, it is capable of the construction for which the appellant contends. Arguably, it is possible to read the expression "subject to a sex offender registration order" as meaning "has been subjected to a sex offender registration order", and to read the expression "if found guilty" as meaning "is found guilty after the person has been subjected to a sex offender registration order". But, even if the section is read literally and in isolation, it is also possible to read "subject to a sex offender registration order" as meaning "is subjected to a sex offender registration order" and to read "if found guilty" as meaning "is or has ever been found guilty". As I see it, the latter construction fits far more naturally with the language of the section. Furthermore, the literal meaning of the words of the section is only one of the considerations which inform its meaning. It is necessary also to read the section in context and having regard to the purposes of the Act, and, where possible, so as to avoid absurd, capricious and irrational results.

10 The purposes of the Act as provided in s.1 are to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time; to reduce the likelihood they will re-offend; to facilitate the investigation and prosecution of future offences they may commit; to prevent registered sex offenders working in child-related employment; and to empower the Police Ombudsman to monitor compliance with Part 4 of the Act.

11 Relevantly, the purposes of the Act are given effect by s.11, of which sub-s.(1) provides that:

"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."

12 The evident purpose of s.34, is then to provide for the period for which a person must comply with the reporting obligations of the Act if sentenced for a Class 1 or Class 2 offence or if subjected to a sex offenders registration order after being sentenced for a Class 3 or Class 4 offence.

13 According to the applicant's preferred construction of s.34(4), the Act would not provide for a reporting period for an offender subject to a sex offenders registration order unless, at the time that the person was subjected to the order, he or she was already subject to an earlier order. In the scheme of things, that might mean that the bulk or at least a large number of persons subjected to sex offenders registration orders under s.11 would never have to comply with the reporting obligations of the Act. In my view that is a most unlikely result for Parliament to have intended

14 If, however, s.34(4) is read in context, and having regard to the purposes of the Act, it may be seen as directed to equating the reporting obligations in respect of Class 3 and Class 4 offences with the reporting obligations which apply to Class 1 and Class 2 offences, wherever the commission of a Class 3 or Class 4 offence is regarded by the court as warranting the making of the order.

15 That constriction accords with the terms of s.11(1), which, as has been seen, empowers the court to make an order that "the person comply with the reporting obligations of this Act". In other words, a sex offenders registration order is not an order to impose a status which may result in further consequences when and if further offences are committed. It is an order which, according to the terms by which it is prescribed, is intended to compel the person the subject of the order to "comply with the reporting obligations of this Act". That construction is also supported by the legislative history of the Act.

16 As the Act was originally drawn, the period for reporting for a person subjected to an order was provided for in s.11(7) as follows:

"Sub-section (7) provides that for the purposes of Division 5 of Part 3 of the Act (which deals with the reporting period), a person found guilty of a Class 3 offence who is made subject to a sex offender registration order is deemed to have been found guilty of a Class 1 offence and a person found guilty of a Class 4 offence or any other offence (other than a Class 3 offence) who is made subject to a sex offender registration order is deemed to have been found guilty of a Class 2 offence."

In my view that made clear that, upon a person being subjected to an order, any Class 3 offence of which the person was then or had ever been sentenced was deemed to be a Class 1 offence, and any Class 4 offence of which the person was then or had ever been sentenced was deemed to be a Class 2 offence.

17 The Act was amended by the Sex Offenders Registration (Amendment) Act 2005. Amongst other things, it repealed s.11(7) and replaced it with what is now s.34(4), as part of what was described in the extrinsic materials in terms of an exercise intended to make things clearer. There was no suggestion in any of the extrinsic materials of an intention to achieve the result for which the applicant contends.

18 The appellant made a number of submissions to the contrary based on the text of ss.3, 6 and 7 of the Act. Section 3 defines a "registrable offender" as having the meaning ascribed it by s.6. Section 6(1) provides, subject to immaterial exceptions, that a registrable offender is a person whom a court has at any time (whether before, on or after 1 October 2004) sentenced for a registrable offence. Section 7(1) provides that a registrable offence is a Class 1 offence or a Class 2 offence or an offence that results in the making of a sex offender registration order. And, as has been seen, s.11(1) provides that the court may make a sex offender registration order if the 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) if satisfied beyond reasonable doubt that the risks are such as to warrant the making of the order. It was submitted on behalf of the appellant that, if one has regard to the definition of registrable offender in s.6(1), and in particular to the fact that it is defined in terms of someone who "has at any time" been sentenced, one is driven to conclude that when the court comes to make an order against a person who has committed a Class 3 or Class 4 offence, that person is not to be treated as a registrable offender unless that person has, at any time before the order is made, become a registrable offender for the purposes of the Act.

19 I reject that submission. Allowing, perhaps for the possibility that the words of the sections are capable of that construction, it appears to me to be a forced construction and one which ill accords with the remainder of the provisions of the Act. As I see it, s.6 defines a registrable offender simply in terms of a person who has at any time been sentenced for a registrable offence. Section 11(5) makes clear that an order may not be made against a person until that person has been found guilty of and sentenced for that offence. A registrable offence is defined by s.7 as one, amongst others, which results in the making of a sex offenders registration order. It follows, as a matter of the ordinary meaning of language, that, after a person is convicted and sentenced for an offence in respect of which an order is then made, that person has been sentenced for an offence that results in the making of a registration order. It follows, therefore, as a matter of the ordinary meaning of language and logic, that that offence is a registrable offence and that the person is therefore and thereby a registrable offender.

20 It was further submitted on behalf of the appellant that, inasmuch as s.34(4) is a penal provision, it must be construed strictly in favour of the subject and thus in favour of the interpretation for which the appellant contended. I reject that submission too. The rule is that when the language of a penal provision is capable of more than one meaning or is vague or cloudy, so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, it ought not be construed as extending any penal category.[1] But, as Gibbs, J. said in Beckwith v. The Queen[2], the rule is one of last resort. These days, the meaning of a penal statute is to be determined in accordance with the ordinary rules of construction and it is only if the meaning is not thus capable of certain ascertainment that it is necessary to default to the meaning of most limited extension.

21 In my judgment it is plain that upon its proper construction s.34(4) means that where a person is subjected to a sex offender registration order, a Class 3 offence of which that person is at that time or has been convicted is deemed for the purposes of

Division 4 of Part 3 of the Act to be a Class 1 offence, and a Class 4 offence of which that person is at that time or has been convicted is deemed for those purposes to be a Class 2 offence.

22 The question of the correct construction of the section being the only ground of appeal, it follows, in my opinion, that the application for leave to appeal should be allowed, but that the appeal should be dismissed.

25 The order of the Court will be that the application for leave to appeal is granted. The appeal is heard instanter and is dismissed.

[1] See R. v. Adams [1935] HCA 62; (1935) 53 C.L.R. 563 at 567-8.

[2] [1976] HCA 55; (1976) 135 C.L.R. 569 at 576.