Taylor v Commissioner of Police of NSW [2024] NSWSC 839 | Case summary

Judicial review application

On 10 January 2024, the plaintiff commenced the present judicial review proceedings by filing the summons challenging the decision of the Registrar of the District Court to issue the notice under s 4 of the CPOR Act and the decision of the Police Commissioner to enter the plaintiff on the Child Protection Register.
The relief sought by the plaintiff in his summons was: "1 Declaration that the Plaintiff is not a registrable person within the meaning of s 3A of the [CPOR Act]. 2 Declaration that the Notice issued by the Second Defendant to the Plaintiff on or about 11 October 2023 was not a Notice issued pursuant to s 4(1) of the CPOR Act. 3 Declaration that the decision by the First Defendant to include the Plaintiff as a registrable person in the Child Protection Register maintained in accordance with s 19 of the CPOR Act was erroneous. 4 Order that the First Defendant removed the Plaintiff as a registrable person in the Child Protection Register maintained by it in accordance with s 19 of the CPOR Act. 5 Costs."
In the summons, the material under the heading "Grounds" took the form of pleadings but the substance of the grounds of review actually relied upon was identified in pars 8 and 9 as follows: "8 Each of the Second Defendant's decision to issue the Registrar's Notice, and the First Defendant's Decision, were in error in that the Plaintiff was not a 'registrable person' within the meaning of s 3A of the CPOR Act by reason of the fact that he had not been 'sentenced' in respect of a registrable offence as required by the s 3A, but rather upon his conviction had merely been the subject of an order for conditional release pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth). 9 In the premises, in circumstances in which the Plaintiff is not a registrable person within the meaning of s 3A of the CPOR Act, he ought be granted the declaratory and other relief sought pursuant to ss 69 and 75 of the Supreme Court Act 1970 (NSW)."
As the parties' positions were developed and refined during oral submissions, it became clear that this matter turned principally on the proper construction of s 3A and the definition of "sentence" in s 3(1) of the CPOR Act.

Consideration

The relevant order made in respect of the plaintiff in the present case was one under s 20(1)(a) of the Crimes Act 1914 which relevantly provides: "20 Conditional release of offenders after conviction (1) Where a person is convicted of a federal offence …, the court before which he or she is convicted may, if it thinks fit: (a) by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: (i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order; … (iv) that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or … (3) Where a person is released in pursuance of an order made under subsection (1) without sentence being passed on him or her, there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or each offence in respect of which the order is made as there would have been if the manner in which he or she is dealt with had been a sentence passed upon his or her conviction for that offence. …".
As noted above, this matter turned principally on whether, on the proper construction of "sentenced" in s 3A in light of the definition of "sentence" in s 3(1) of the CPOR Act, the making of an order under s 20(1)(a) of the Crimes Act 1914 involved the person being "sentenced" for the offence in question.
In accordance with well-established principles, the process of construing s 3A of the CPOR Act must focus on the statutory text, considered in its context which includes the other provisions of the Act as a whole and, where relevant, the legislative history and extrinsic materials: Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 273 CLR 21; [2021] HCA 19 at [15] (Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ). Attribution of meaning to the text in context should be guided so far as possible by the statutory purpose on the basis that a legislature ordinarily intends to pursue its purposes by coherent means: SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20] (Kiefel CJ, Bell and Nettle JJ) and [41] (Gageler J, as his Honour then was).
The purpose of the CPOR Act is indicated by its long title which is: "An Act with respect to registration and reporting requirements for certain offenders who commit sexual and other serious offences against children; and for other purposes."
Consistently with this purpose, s 2A sets out the objects of the CPOR Act as follows: "(a) to protect children from serious harm (including physical and psychological harm caused by physical or sexual assault), and (b) to ensure the early detection of offences by recidivist child sex offenders, and (c) to monitor persons who are registrable persons, and (d) to ensure that registrable persons comply with this Act."
Against that background, s 3A of the CPOR Act relevantly provides: "3A Registrable persons (1) A registrable person is a person whom a court has at any time … sentenced in respect of a registrable offence, and includes a corresponding registrable person. (2) Unless a person is a corresponding registrable person, a person is not a registrable person merely because the person - (a) is a person in respect of whom a court has made an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 or section 33 (1) (a) of the Children (Criminal Proceedings) Act 1987 (or an equivalent order under the laws of a foreign jurisdiction) in respect of a Class 1 or Class 2 offence, or … … (4) For the purposes of this section, it is irrelevant whether or not a person may lodge, or has lodged, an appeal in respect of a finding of guilt, sentence or child protection registration order. …".
In the present case, it was not in dispute that an offence against s 474.27A of the Criminal Code was a "Class 2 offence" and thus a "registrable offence", under the CPOR Act. Nor was there any dispute that the plaintiff was not a "corresponding registrable person" for the purposes of s 3A(1) of the CPOR Act and had not ever been sentenced for any other offence, including any other registrable offence.
In these circumstances, the plaintiff would not be a "registrable person" under s 3A(1) of the CPOR Act unless he was "a person whom a court has at any time … sentenced in respect of [the s 474.27A offence]". Furthermore, if the plaintiff were not a "registrable person" the decision by the Registrar to issue the notice under s 4(1) of the CPOR Act and the decision to enter the plaintiff's details on the Child Protection Register maintained under s 19 of that Act would have been made in error.
The question therefore becomes whether, on the proper construction of s 3A(1) of the CPOR Act, the plaintiff was "sentenced" in respect of the s 474.27A offence when Jeffreys DCJ made the conditional release order under s 20(1)(a) of the Crimes Act 1914.
The word "sentenced" in s 3A(1) is used as a verb and has the same meaning as "imposed a sentence on". The noun "sentence" is given an inclusive definition in s 3(1) of the CPOR Act as follows: "sentence includes the following - (a) any order under section 65(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 that causes a person to be kept in custody or an order of detention under section 33(1) or 61(2) of that Act, (b) any order under section 33(1) of the Children (Criminal Proceedings) Act 1987, (c) any action taken under section 10A of the Crimes (Sentencing Procedure) Act 1999, (d) any undertaking under section 23 of the Pre-Trial Diversion of Offenders Act 1985, (e) any sentence or equivalent order or undertaking imposed under the laws of a foreign jurisdiction.
The types of orders, actions or undertakings referred to in pars (a) to (d) of that definition are limited to those which may be made or taken under New South Wales legislation. Consequently, none of those paragraphs is directly applicable to the conditional release order made under the relevant Commonwealth legislation in the present case. Nonetheless, those paragraphs do give an indication of the types of orders, actions or undertaking which are intended to amount to being "sentenced" for the purposes of the CPOR Act, including s 3A(1). The relevant types of orders, actions or undertakings are: 1. in par (a), orders for the detention of a person under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which may be made after a court enters a special verdict of act proven but not criminally responsible or a verdict, at a special hearing, that on the limited evidence available the defendant committed the offence charged or an offence available as an alternative to the offence charged; 2. in par (b), any of the orders that may be made under s 33(1) of the Children (Criminal Proceedings) Act 1987 (NSW), namely: dismissal with or without a caution; discharge on condition of entering a good behaviour bond; an order to enter a good behaviour bond; imposition of a fine; release on condition of compliance with an "outcome plan"; an adjournment for the purposes of rehabilitation or other purposes; release on probation; a requirement to perform community service work; or a control order; 3. in par (c), any action that may be taken under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely conviction without any other penalty; and 4. in par (d), any undertaking under s 23 of the Pre-Trial Diversion of Offenders Act (1985) (NSW), the effect of which was explained by the Court of Criminal Appeal in Attorney General for New South Wales v CMB [2015] NSWCCA 166 at [5] (Leeming JA, Simpson JA and Hamill J) as follows: "The Pre-Trial Diversion of Offenders Act applied only to a person charged with a child sexual assault offence upon the person's own child or the child of the person's spouse or de facto partner: s 3A. An offender who was permitted to enter into the Program and who gave an undertaking pursuant to s 23 would have a conviction recorded, but would not otherwise be sentenced or dealt with in respect of the offence: s 24. After the offender had complied with the undertaking, and any other requirements under the Act or Regulation, no further proceedings could be taken against the person in respect of the offence: s 30. Hence the "diversion" effected by the regime established by the Act of a small class of serious offenders from the ordinary sanctions imposed by the criminal justice system."
These paragraphs make clear that, for the purposes of the CPOR Act, such orders and undertakings, which may not amount to a sentence in the ordinary sense of that word in the criminal law context, were intended to be treated as a sentence or, at least, as equivalent to a sentence, in the sense of being options available to a court when a person had been found to have committed a registrable offence. Consequently, if a person was made subject to such an order, action or undertaking, it would amount to be being "sentenced" within the meaning of s 3A of the CPOR Act.
In construing par (e) of the definition of "sentence", pars (a) to (d) constitute significant context.
Paragraph (e) provides that, in the CPOR Act, the word "sentence" also includes "any sentence, equivalent order or undertaking imposed under the laws of a foreign jurisdiction".
The expression "foreign jurisdiction" is defined in s 3(1) of the CPOR Act to mean "a jurisdiction other than New South Wales (including jurisdictions outside Australia)". In this context, a jurisdiction other than New South Wales naturally includes the Commonwealth and, indeed, it was not in issue between the parties that the Commonwealth was a "foreign jurisdiction" for the purposes of the CPOR Act.
Accordingly, under par (e) of the definition of "sentence", three types of outcomes of criminal proceedings are relevantly included: 1. any "sentence" imposed under a law of the Commonwealth; 2. any "equivalent order" made or imposed under a law of the Commonwealth; and 3. any "equivalent … undertaking" required or imposed under a law of the Commonwealth.
A "sentence" in the criminal law context ordinarily means an order that definitively disposes of the consequences of conviction or a definitive decision on the punishment or absence of it which is to be the consequence of conviction: R v Warfield (1994) 34 NSWLR 200 at 205-6 (Hunt CJ at CL, McInerney and G James JJ agreeing) citing Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 304 and 307; [1977] HCA 44.
The word "sentence" in par (e), given its juxtaposition to "equivalent order or undertaking", appears to be intended to refer to a sentence, in the ordinary meaning of that word in the context of the criminal law, as distinct from other options which might be available to a court by way of orders or undertakings to deal with a person who had been found to have committed an offence.
That there are options other than a "sentence" which are available under the relevant Commonwealth law to a court dealing with any person for a federal offence is confirmed by s 16A(1) of the Crimes Act 1914 which provides as follows: "In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence." (Emphasis added.)
Since an order under s 20(1)(a) of the Crimes Act 1914 is expressly stated to be an order for the release of the person "without passing sentence on him or her", it appears to be an "order" as opposed to a "sentence", as referred to in s 16A(1). This is consistent with s 20A(5)(b)(ii) of the Crimes Act 1914 which permits a court which is satisfied that a person has, without reasonable cause or excuse, failed to comply with a condition of an order under s 20(1)(a) to: "revoke the order and … deal with the person, for the offence … in respect of which the order was made, in any manner in which he or she could have been dealt with for that offence … if the order had not been made and he or she was before the court for sentence in respect of the offence …".
From the terms of ss 20(1)(a) and 20A(5)(b)(ii), it appears that an order under s 20(1)(a) may lack the quality of definitiveness which would otherwise justify it being classed as a "sentence" on the ordinary meaning of the word.
In these circumstances, on the proper construction of par (e) of the definition of "sentence", in my view an order under s 20(1)(a) of the Crimes Act 1914 made "without passing sentence" does not fall within the description of a "sentence … imposed under the laws of [the Commonwealth]".
The words "equivalent order" in par (e), on their natural meaning, appear to refer to an order, which is not a "sentence", but which serves an equivalent purpose or function to a sentence in dealing with the consequences of a conviction. This would include the types of orders, as opposed to sentences, referred to in s 16A(1) and elsewhere in the Crimes Act 1914. Furthermore, by way of context and as noted above, pars (a) to (d) of the definition of "sentence" provide illustrations of orders and undertakings under New South Wales law that may not be "sentences" in the ordinary meaning of that word but are equivalent in the sense of being other options available to a court when a person had been found to have committed an offence. In addition, the use of the words "equivalent order" in s 3A(2)(a), which is considered in more detail below, also indicates that that expression was intended to refer an order which is available to a court as an alternative to imposing a "sentence". Finally, there is nothing in the scope or purpose of the CPOR Act which would suggest that "equivalent order" in par (e) should have a different meaning from the natural meaning referred to above.
For these reasons, in my opinion on the proper construction of the words "equivalent order" in par (e) of the definition of "sentence" those words relevantly include an order under s 20(1(a) of Crimes Act 1914, which is one of the types of orders other than a "sentence" which may be made in respect of any person who has been convicted of a federal offence.
In these circumstances, it is not necessary to consider whether an order under s 20(1)(a) involved any "equivalent … undertaking" required or imposed under a law of the Commonwealth, within par (e) of the definition of "sentence" in the CPOR Act.
Thus, on the construction of "equivalent order" in par (e) set out above and subject to the exceptions established in s 3A(2) of the CPOR Act, the fact that Jeffreys DCJ made an "equivalent order" under s 20(1(a) of the relevant Commonwealth legislation in respect of the plaintiff for the offence contrary to s 474.27A(1) of the Criminal Code means that a "sentence" within par (e) of the definition of "sentence" was imposed on the plaintiff. Consequently, the plaintiff was "a person whom a court has … sentenced in respect of a registrable offence" within s 3A of the CPOR Act and was thus a "registrable person".
The exceptions found in s 3A(2)(a) which may be potentially relevant in the present case are as follows: "a person is not a registrable person merely because the person - (a) is a person in respect of whom a court has made an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 or section 33(1)(a) of the Children (Criminal Proceedings) Act 1987 (or an equivalent order under the laws of a foreign jurisdiction) in respect of a Class 1 or Class 2 offence …".
There are two general types of orders which fall within s 3A(2), whether made under the relevant New South Wales legislation or under the laws of a foreign jurisdiction including the Commonwealth. First, there are the types of orders which may be made under s 10(1) of the Crimes (Sentencing Procedure) Act, namely orders made "[w]ithout proceeding to conviction": 1. directing that the relevant charge be dismissed: s 10(1)(a); 2. discharging the person under a conditional release order made in accordance with s 9: s 10(1)(b); and 3. discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program: s 10(1)(c).
Of these types of orders, the only one which could potentially be "equivalent" to an order under s 20(1)(a) of the Crimes Act 1914 is a conditional release order made under s 10(1)(b) of the Crimes (Sentencing Procedure) Act.
As the chapeau to s 10(1) expressly states, however, the orders under that section are only to be made if the Court decides to deal with the matter "[w]ithout proceeding to conviction". Although a conditional release order can be made under s 10(1)(b), without proceeding to conviction, such an order can also be made under s 9 when the court "proceeds to conviction". Section 9(1) of the Crimes (Sentencing Procedure) Act provides: "9 Conditional release orders (1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if - (a) the court proceeds to conviction, or (b) the court does not proceed to conviction but makes an order under section 10(1)(b)."
The issue that must be addressed is, therefore, whether an order under s 20(1)(a) of the Crimes Act 1914 is "an equivalent order" to an order under s 9(1)(a) of the Crimes (Sentencing Procedure) Act rather than an order under ss 9(1)(b) and 10(1)(b) of that New South Wales Act.
In this context it is significant that the Crimes Act 1914 also contains two distinct options for discharging or releasing a person, where a charge for a federal offence has been proved, by way of an order under s 19B or under s 20 of that Act. 1. Section 19B of that Act relevantly provides: "19B Discharge of offenders without proceeding to conviction (1) Where: (a) a person is charged before a court with a federal offence…; and (b) the court is satisfied, in respect of that charge…, that the charge is proved, but is of the opinion, having regard to: [factors (i) to (iii)] that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation; the court may, by order: … (d) discharge the person, without proceeding to conviction …, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: (i) that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order; … (iii) that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order … ….". 1. By way of contrast, s 20 of the Crimes Act 1914 relevantly provides: "20 Conditional release of offenders after conviction (1) Where a person is convicted of a federal offence …, the court before which he or she is convicted may, if it thinks fit: (a) by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: (i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order; … (iv) that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; … …".
A comparison of the relevant provisions of ss 9 and 10 of the Crimes (Sentencing Procedure) Act with the relevant provisions of ss 19B and 20 of the Crimes Act 1914 demonstrates that s 19B and s 10(1)(b) both relate to conditional release or discharge orders made without proceeding to conviction. Similarly, s 20 and s 9(1)(a) permit the making of conditional release orders where the Court proceeds to conviction. In these circumstances, in my view, the exception in s 3A(2)(a) for orders under the law of a foreign jurisdiction equivalent to an order under s 10 of the Crimes (Sentencing Procedure) Act applies to orders under s 19B(1)(d) of the Crimes Act 1914 and not to orders under s 20(1)(a), which are relevantly equivalent to orders under s 9(1)(a) of the Crimes (Sentencing Procedure) Act.
This construction of s 3A(2), which means that an order under s 20(1)(a) is not "equivalent" to an order under s 10(1)(b) because in the former case there is a conviction and in the latter the court does not proceed to conviction, is also consistent with the fact that action taken under s 10A of the Crimes (Sentencing Procedure) Act is expressly included in par (c) of the definition of "sentence" in s 3(1) of the CPOR Act. Section 10A(1) provides: "(1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty."
It would be incongruous if a person who was convicted of a registrable offence but no other penalty was imposed under s 10A would be taken to be a "registrable person" by virtue of par (c) of the definition of "sentence" but a person who was convicted and subjected to a conditional release order under s 20(1)(a) of the Crimes Act 1914 or s 9(1)(a) of the Crimes (Sentencing Procedure) Act would not be a registrable person.
Secondly, the exception in s 3A(2)(a) covers orders which may be made "under s 33(1)(a) of the Children (Criminal Proceedings) Act 1987 (or an equivalent order under the laws of a foreign jurisdiction)". The plaintiff in the present case was not dealt with under any Commonwealth laws relating to offences committed by children equivalent to the Children (Criminal Proceedings) Act. Consequently, that aspect of the exception is not relevant in the present case.
In short, the order under s 20(1)(a) of the Crimes Act 1914 made against the plaintiff in the present case did not fall withing the exception in s 3A(2)(a) of the CPOR Act.
For all these reasons, I am of the view that, as a result of Jeffreys DCJ making an under s 20(1)(a) of the Crimes Act 1914 in respect of the plaintiff for the offence contrary to s 474.27A(1) of the Criminal Code, the plaintiff was "a person whom a court has … sentenced in respect of a registrable offence" within s 3A of the CPOR Act and was thus a "registrable person".

Taylor v Commissioner of Police of NSW

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