TM v Commissioner of NSW Police

Supreme Court of NSW|2022-02-10|Before: Adams J, Mr P, Ms J

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Taylor v Owners - Strata Plan 11564 (2014) 253 CLR 531; [2014] HCA 9 Whiley v R [2010] NSWCCA 53 Texts Cited: Macquarie Dictionary (online ed) Category: Principal judgment Parties: TM (Plaintiff) Commissioner of NSW Police (First Defendant) Local Court of NSW (Second Defendant) Representation: Counsel: Mr P Coady with Mr A Bhasin (Plaintiff) Ms J Davidson (First Defendant)

Solicitors: Legal Aid NSW (Plaintiff) Crown Solicitor's Office NSW (First Defendant) Crown Solicitor's Office NSW (Second Defendant/Submitting Appearance) File Number(s): 2021/00207905 Publication restriction: An order has been made pursuant to s 15 of the Children (Criminal Proceedings) Act 1987 (NSW) that the plaintiff be referred to by a pseudonym "TM". Access to the file is restricted except by leave of the Court.

Judgment

These proceedings concern the scope of one of the prescribed circumstances in which a juvenile offender can be exempted from registration on the Child Protection Register ("the register") under the Child Protection (Offenders Registration) Act 2000 (NSW) ("CPOR Act") Act following a conviction for a "registrable offence" under that Act. The plaintiff, TM, was placed on the register in 2016. He now contends that he should not have been.
By amended summons filed on 23 August 2021 the plaintiff seeks judicial review of the following decisions: 1. The decision of the first defendant, the Commissioner of NSW Police, on 24 November 2016 to exercise his power under s 7 of CPOR Act to notify the plaintiff that he was a "registrable person" within s 3A of the Act and enter him onto the Child Protection Register under the Act (the "registration decision"); 2. The decisions of the second defendant, the Local Court of NSW, on 14 August 2018 and 4 August 2020, to make, respectively, a prohibition order under s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) ("CPOP Act") and an interim prohibition order under s 7 of the CPOP Act) (the "prohibition decisions"); and 3. The decision of the second defendant on 14 October 2018 to convict and sentence the plaintiff for a contravention of s 17(1) of the CPOR Act (the "sentencing decision").
The second defendant filed a submitting appearance, as is the usual practice. The first defendant is the active contradictor in the proceedings.
Although 16 orders were initially sought in the amended summons, only three were pressed at the conclusion of the hearing. The orders pressed were as follows: 1. A declaration that the plaintiff was not as at 24 November 2016, or at any subsequent time, and is not, a "registrable person" within the meaning of s 3A of the CPOR Act; 2. An order in the nature of certiorari quashing or setting aside the prohibition decisions; and 3. An order in the nature of certiorari quashing or setting aside the bond purportedly imposed by the second defendant on the plaintiff on 14 October 2018 under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (H 233593898) in relation to the sentencing decision.

Judicial Review / Crimes (Appeal and Review) Act 2001 (NSW)

These proceedings are brought in the Court's supervisory jurisdiction as regulated by s 69 of the Supreme Court Act 1970 (NSW). Such relief is discretionary in nature. In respect of the decisions of the second defendant, the plaintiff also appealed under s 52 of the Crimes (Appeal and Review) Act 1999 (NSW).
A discretionary factor militating against the exercise of this Court's supervisory jurisdiction is the availability of a statutory right of appeal. The first defendant did not submit that the availability of a statutory right to appeal was a relevant factor in relation to the relief sought against the decisions of the second defendant. In fact, the hearing proceeded on the sole basis that these were judicial review proceedings. I propose to determine the matter on that basis.
The relevant decisions were made in 2016, 2018 and 2020. These proceedings were not commenced until 21 July 2021. A three-month time limit for the commencement of such proceedings is prescribed by r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). The plaintiff sought an order extending time for the commencement of the proceedings pursuant to UCPR r 59.10(2). Leave was not opposed by the Commissioner. I indicated at the hearing that I would grant the extension based on the explanation for the delay set out in the affidavit of Rachel Howell affirmed 7 October 2021. Ms Howell is the plaintiff's solicitor from Legal Aid NSW. That explanation is set out in the latter part of the chronology below.

Chronology

On 18 November 2013, the plaintiff, then aged 17 years, was found to be in possession of child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW) (extracted below at [30]). The prohibited material was stored on three flash storage drives kept in a locked safe in his bedroom in a group home. The material included photographs of naked children depicting their genitalia and cartoons categorised as child abuse material (as defined below at [31]). The material on all three devices was identical.
On 29 January 2014, the plaintiff was arrested and interviewed by police in the presence of a carer from his group home. He told police that he had found a flash card containing the images on a rubbish pile under a bridge near his house, along with DVD discs containing adult pornography. He also told police that after viewing the contents he had transferred the contents to another flash drive in case he lost the first one. He also transferred the contents to his mobile telephone's micro flash drive. He further stated that some of the photos of the naked children had been downloaded by him from a website called "Nudist Wonderland".
Three Court Attendance Notices ("CANs"), in relation to the child abuse material in identical terms save as for the particulars. After setting out the relevant provision of the Crimes Act and Law Part Code, they each charged that the plaintiff did: "Produce, disseminate or possess child abuse material between 2.00pm and 11.59pm on 18/11/2013 at Tighes Hill."
Each of the three CANs then included the following particulars respectively: 1. did possess 1 x Polaroid brand 2 gig SD memory (sic) containing child abuse material; 2. did possess 1 x Transcend brand 2GB Micro SD Memory card containing child abuse material; 3. did possess 1 x Polaroid Brand 2GB SD memory card containing child abuse material.
On 26 May 2014, the plaintiff pleaded guilty in Broadmeadow Children's Court to the three counts of possession of child abuse material contrary to s 91H(2) of the Crimes Act. He was sentenced that day pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW) and placed on good behaviour bonds for a period of 14 months with supervision. He was not directed at that time to register pursuant to the Act. In fact, it appears to be common ground that the prospect that upon conviction the plaintiff might become a "registrable person" was not raised by police or the Magistrate at that time.
On 24 November 2016, two and a half years later, the first defendant directed the plaintiff to attend Newcastle police station. He did so. At this time, he was issued with a "Notice issued to Registrable Person" and entered onto the Child Protection Register under the CPOR Act (the registration decision). There was no explanation in the material before this Court for the delay in registration.
On 22 February 2018, on application of the first defendant, the second defendant made interim orders under s 7 of the CPOP Act prohibiting the plaintiff from engaging in specified conduct. Specifically, the plaintiff was prohibited from: 1. Approaching or contacting any person under the age of 18 years (excepted as outlined in 2); 2. Approaching or contacting any relative under the age of 18 years without authorisation and supervision; 3. Attending or being in the vicinity of premises which specifically cater for children (eg schools and childcare centres); 4. Attending venues used for recreational/entertainment purposes by large crowds including children (eg water parks) without giving prior notice to police and obeying such reasonable directions as are given; 5. Recording or attempting to record images of persons under the age of 18 years; 6. Possessing or attempting to possess, and viewing or attempting to view, images of persons under the age of 18 years in any state of undress.
On 14 August 2018, final prohibition orders were made under s 5 of the CPOP Act for a period of two years commencing on that date (the first prohibition decision). In addition, the plaintiff pleaded guilty to an offence under s 17(1) of the CPOR Act of failing to comply with his reporting obligations under that Act. He was directed to enter a good behaviour bond for a period of two years pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the sentencing decision).
On 2 April 2020, the plaintiff was charged with an offence under s 17(1) of the CPOR Act of failing to comply with reporting obligations allegedly committed between 12 and 19 March 2020.
On 14 July 2020, the plaintiff was charged with an offence under s 17(1) of the Act of failing to comply with reporting obligations allegedly committed between 24 February and 2 March 2020.
On 4 August 2020, (ten days before the then extant prohibition orders were due to expire), on the application of the first defendant, the second defendant at Katoomba made interim orders under s 7 of the CPOP Act prohibiting the plaintiff from engaging in specified conduct (the second prohibition decision). The interim orders were in terms similar to those made on 22 February 2018 outlined above.
On 1 March 2021, the plaintiff was charged with offences under s 17(1) of the CPOR Act of failing to comply with reporting obligations and under s 13(1) of the CPOP Act of contravening a prohibition order, each allegedly committed between 31 May and 6 June 2019. The plaintiff was alleged to have contacted his cousin via Snapchat. His cousin was under the age of 18 years.
The plaintiff was represented by Legal Aid NSW on his most recent charges. The second defendant was advised that the charges would be dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1900 (NSW) given that the plaintiff has been diagnosed with Autism Spectrum Disorder.
On 12 March 2021, the plaintiff's solicitor made representations to the NSW Police Child Abuse/Child Protection Register seeking that the plaintiff be removed from the register. That application was unsuccessful. These proceedings were commenced shortly thereafter on 21 July 2021.

Relevant legislation

The CPOR Act commenced on 15 October 2001. It has been amended a number of times including since 29 January 2014, the date that the plaintiff was sentenced for the three counts contrary to s 91H(2). It was common ground that those amendments were largely directed at changes to various criminal offences pertaining to children.
The CPOR's long title 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." The four objects of the Act are set out in s 2A as: (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.
Once placed on the register, onerous reporting and monitoring conditions arise, as Latham J observed in KE v Commissioner of Police (NSW) [2018] NSWSC 941; 273 A Crim R 227 ("KE") at [11]-[12] as follows: "The Act establishes a mechanism whereby persons convicted of 'registrable offences' (Class 1 and Class 2 offences) become 'registrable persons'. A 'registrable person' is subject to intensive monitoring by police for a lengthy period of time, depending upon the severity of the offending. A notice under s 4 of the Act is automatically generated following conviction and sentence for 'registrable offences', with the result that the offender must report to police within seven days and provide the required personal information. The reporting and monitoring requirements under the Act are onerous and extensive. Police have the power to take the fingerprints of 'registrable persons', which may be kept for the duration of the reporting period (ss 12E and 12H). The obligation upon 'registrable persons' to supply police, on an ongoing basis, with 'relevant personal information' (s 9) includes any change of address, registration number of any vehicle generally used, details of proposed travel plans, details of any telecommunications carriage service and any internet provider, and any email address and/or internet user names. The 'registrable person' may be prohibited from employment in any organisation involving children and may be prohibited from participating in any sporting or recreational activity that brings him/her into contact with children. The reporting and monitoring periods (8 years,15 years or life) are halved in the case of juveniles (ss 14A and 14B)."
A precondition of registration is conviction for a "registrable offence". The definition of "registrable offence" and a number of other definitions are provided in s 3 of the CPOR Act. A "registrable offence" is defined as an offence that is: (a) a Class 1 offence, or (b) a Class 2 offence, or (c) an offence that results in the making of a child protection registration order.
A "Class 1 offence" is defined to include a number of offences including murder (where the person murdered is a child), sexual intercourse with a child and a number of other specified offences. A "Class 2 offence" is defined to include a number of offences including manslaughter (where the victim is a child), sexual touching of a child and a number of other specified offences including in sub-s (d) which is in these terms: an offence under section 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900 (other than an offence committed by a child prostitute) …
One of the statutory provisions the interpretation of which is pivotal to the outcome in this matter is s 3(3) of the CPOR Act which is in these terms: For the purposes of this Act, offences arise from the same incident only if they are committed within a single period of 24 hours and are committed against the same person. (Emphasis added.)
Section 3A of the CPOR Act provides the definition of "registrable person" and also for some of the circumstances where such an offender is exempted from being placed on the register. The relevant exemption or "carve-out" relied upon by the plaintiff is s 3A(2)(c)(ii). Section 3A is in these terms: (1) A registrable person is a person whom a court has at any time (whether before, on or after the commencement of this section) 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 (b) (Repealed) (c) as a child committed - (i) a single offence involving sexual touching or a sexual act, or (ii) a single offence under section 91H of the Crimes Act 1900 or an offence of producing, disseminating or possessing child abuse material (in whatever terms expressed) under the laws of a foreign jurisdiction, or (iii) a single offence under section 91J (1), 91K (1) or 91L (1) of the Crimes Act 1900, or (iv) a single offence (including an offence committed under the laws of a foreign jurisdiction) that falls within a class of offence the regulations prescribe for the purposes of this subparagraph, or (v) a single offence an element of which is an intention to commit an offence of a kind listed in this paragraph, or (vi) a single offence of attempting, or of conspiracy or incitement, to commit an offence of a kind listed in this paragraph, or Note - Savings and transitional provisions in Schedule 2 provide that references to certain offences in this paragraph are taken to include references to certain earlier offences under provisions that have since been repealed. (d) is a person whom a court has found guilty of a registrable offence before 15 October 2001, unless the person is an existing controlled person or the offence results in the making of a child protection registration order against the person. (3) A person is not a registrable person if the person is receiving protection under a foreign witness protection law specified by the regulations for the purposes of this subsection, or has the same status as such a person under an order made under a corresponding Act specified by the regulations for the purposes of this section. (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. (5) A reference to a single offence in this section includes a reference to more than one offence of the same kind arising from the same incident. (Emphasis added save for that of the words "registrable person".)
Section 14A of the CPOR Act provides for different durations of reporting periods depending on the nature (ie Class 1 or Class 2) and number of offences. The provision sets a shorter period of reporting where there has been only one offence. Section 14A(4) provides that for the purposes of s 14A: "2 or more offences arising from the same incident are to be treated as a single offence".
The plaintiff pleaded guilty to three offences contrary to s 91H of the Crimes Act. That is a Class 2 offence and thus a "registrable offence" within the CPOR Act. However, the effect of s 3A(2)(c)(ii) is that when an offender is a juvenile and has committed only a "single offence" under s 91H he or she is not required to be placed on the register. Section 91H creates the offences of the production, dissemination or possession of child abuse material and is in these terms: (1) In this section - disseminate child abuse material, includes - (a) send, supply, exhibit, transmit or communicate it to another person, or (b) make it available for access by another person, or (c) enter into any agreement or arrangement to do so. possess child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)). produce child abuse material includes - (a) film, photograph, print or otherwise make child abuse material, or (b) alter or manipulate any image for the purpose of making child abuse material, or (c) enter into any agreement or arrangement to do so. (2) A person who produces, disseminates or possesses child abuse material is guilty of an offence. Maximum penalty - imprisonment for 10 years. (3) Proceedings for an offence under this section against a child or young person may only be instituted by or with the approval of the Director of Public Prosecutions.
The term "child abuse material" is defined in s 91FB of the Crimes Act as follows: (1) In this Division - child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive - (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include - (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character). (3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)). (4) The private parts of a person are - (a) a person's genital area or anal area, whether bare or covered by underwear, or (b) the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.

The plaintiff's submissions

The plaintiff contended that he was not and is not a registrable person within the meaning of the CPOR Act as s 3A(2)(c)(ii) of the Act applied to him at the relevant time; that is, at that time he was a child who had committed a "single offence" under s 91H of the Crimes Act.
Reliance was placed on s 3A(5) of the CPOR Act which provides that a reference to a "single offence" in s 3A includes a reference to "more than one offence of the same kind arising from the same incident". The plaintiff submitted that the offences committed by the plaintiff were not only of the same kind but also of the same offence of possessing child abuse material, committed within a single period of 24 hours.
It was further submitted that the offence arose from the "same incident", if those words are given their ordinary meaning by reference to the Macquarie Dictionary. The central issue was identified as being whether s 3(3) of the CPOR Act operates to require a different conclusion to be reached. The plaintiff submitted that it does not. In support of that conclusion two alternate constructions of s 3(3) of the Act were advanced.
The "primary construction" advanced is that s 3(3) only applies in respect of offences that, by reference to their elements, are "committed against a person", and has no application to an offence of possessing child abuse material (the "Primary Construction"). It was suggested that the words "if committed against a person" should be read into the text before the words "committed against the same person" such that s 3(3) would read: "For the purposes of this Act, offences arise from the same incident only if they are committed within a single period of 24 hours and, if committed against a person, are committed against the same person."
The "Alternative Construction" advanced is that, in reliance on s 8(b) of the Interpretation Act 1987 (NSW), the use of the singular "person" in s 3(3) should be read to include the plural such that s 3(3) would read as follows, when applicable to possession of child abuse materials: "For the purposes of this Act, offences arise from the same incident only if they are committed within a single period of 24 hours and are committed against the same person or persons."
Although it was submitted that the Primary Construction is to be preferred, both constructions were pressed at the hearing. In support of both constructions, it was noted that the exception provided for juveniles in s 3A(2)(c) applies only to a narrow range of less serious Class 2 offences.
The plaintiff relied on the objects of the CPOR Act as provided in s 2A, and in particular on s 2A(b): the early detection of offences of recidivist child sex offenders, being those who habitually relapse into the commission of offences against children, post-sentencing. In oral submissions, counsel for the plaintiff put forward the related object of the protection of children from serious harm as identified by Latham J in KE at [10] and [27].
It was submitted that the "primary work" of s 3(3) in the statutory scheme is to determine the length of time for a which a registrable person is subject to reporting obligations under s 14A of the CPOR Act.
The plaintiff submitted that "the vast majority of Class 1 and Class 2 offences will involve, as an element of the offence, the commission of a physical act against a particular person". In this context, the application of s 3(3) poses no difficulty. That offences committed within a 24-hour period against the same person be treated as a "single offence", entitling an offender to a reduced reporting period under s 14A or, in the case of a juvenile offender, to avoid becoming a registrable person under s 3A(2)(c), reflects the legislature's assessment that such offenders present a lower risk of recidivism. Section 3(3) thereby reinforces the statutory focus on recidivist child sex offenders.
It was accepted that the offence of possessing child abuse material contrary to s 91H could not be said to be a "victimless crime", but it was noted that it does not require as one of its elements the commission of any act against a person. The offence of possessing child abuse material is complete upon proof that an offender knowingly had custody or control of material of the requisite kind. The physical element of the offence is the existence of a particular state of affairs: that is, the possession of material of a particular character: He Kaw Teh v The Queen (1985) 157 CLR 523 at 564; [1985] HCA 43 per Brennan J.
It was noted that "child abuse material" is defined in s 91FB of the Crimes Act (extracted above at [31]) to include material which "depicts or describes" a person who "appears to be or is implied to be" a child. Thus, the definition extends to drawings and handwritten text created from an offender's imagination. This form of child abuse material does not involve the victimisation of any actual child: Whiley v R [2010] NSWCCA 53 ("Whiley") especially at [63]-[65] per James J. In the present case, the material possessed by the plaintiff included cartoons.
It was acknowledged that the effect of the plaintiff's Primary Construction is to read down the requirement in s 3(3) of the CPOR Act that offences be "committed against the same person" as applying only to offences which involve a physical act committed against a person.
The plaintiff submitted that the Primary Construction best coheres with the purpose of the CPOR Act generally and the "single offence" exemption specifically. Five submissions were made in support of this contention.
First, it was submitted that the Primary Construction is capable of accommodating the full range of material that may be the subject of a possession offence, in the sense that the s 3(3) requirement of offences being "committed against the same person" would never be applicable to possession offences. By contrast, the Alternative Construction would only resolve the application of s 3(3) in respect of possession offences depicting actual persons, with the requirement incapable of being satisfied in cases involving "unreal" depictions (eg drawings or handwritten text generated from the imagination), the possession of which is generally considered less serious: KE at [33]; Whiley at [63]-[71]. It was submitted that this would have a perverse outcome in that an offender convicted on multiple counts of possessing such "non-real" material at the same point in time would fall outside the "single offence" exemption despite this being the least serious form of a s 91H offence.
Secondly, it was submitted that if the Primary Construction was adopted the availability of the single offence exemption would not depend on arbitrary charging decisions. The plaintiff would have avoided becoming a registrable person under the CPOR Act if one charge had been laid, as opposed to three. A single charge of possessing child abuse material commonly arises from the possession of a volume of material depicting multiple persons: see, eg, R v Wood [2015] NSWCCA 231. The Alternative Construction would not resolve this perceived arbitrariness or capriciousness in every case as attention would be needed to be given in each case as to how each charge was particularised.
Thirdly, it was submitted that the Primary Construction best advances the purposes of the CPOR Act and the single offence exemption for juveniles. Reliance was placed on the observations of Latham J in KE that the policy of the CPOR Act is targeted at recidivism and the single offence exemption in s 3A(2)(c) is intended to protect a child offender from the severe repercussions of registration for an isolated instance of offending. In the context of the present case, it was submitted that the possession of child abuse material on a single occasion (albeit on different media devices) is properly regarded as an isolated instance of offending or the "same incident" in its ordinary meaning.
Fourthly, it was submitted that the Alternative Construction would significantly reduce the scope of the single offence exemption in s 3A(2)(c), sometimes on an arbitrary basis.
Finally, it was submitted that under the Primary Construction the words "same person" in s 3(3) of the CPOR Act would still have significant work to do in relation to the vast majority of Class 1 and Class 2 offences, being constituted by acts committed against a person. It would be inapplicable only in a narrow category of (possession) offences not of that character. The Primary Construction would therefore preserve the operation of the exception in s 3A(2)(c)(ii), as well as that of the "same person" requirement in s 3(3) in almost all cases. It was submitted that this is preferable to the Alternative Construction.
The Alternative Construction advanced by the plaintiff was that in the context of a possession offence, the end of s 3(3) of the CPOR Act should read, "and are committed against the same person or persons" (if any) depicted in the material. On that construction, given that the content of the three media devices was identical, the plaintiff would fall within the single offence exemption in s 3A(2)(c)(ii). The plaintiff relied on s 8(b) of the Interpretation Act 1987 (NSW) to support the Alternative Construction.

The first defendant's submissions

It was submitted that the plaintiff is and has been, at all relevant times, a registrable person for the purposes of the CPOR Act and the CPOP Act. Specifically, it was submitted that the offences of which the plaintiff was convicted did not arise from the "same incident" within the meaning of s 3A(5) of the CPOR Act given the terms of s 3(3) of the CPOR Act.
As for the meaning of "against the same person" in s 3(3) it was noted that the term "against" is not used in any consistent way throughout the CPOR Act generally. Nor does its ordinary meaning lead to any clear division between types of offences.
In relation to the definition of Class 1 and Class 2 offences in s 3, it was submitted that the qualifying words "where the person against whom the offence is committed is a child" (emphasis added), appearing frequently in the two definitions, are also used in relation to offences which do not have as an element the commission of a physical act against a person. An example of this was given as sub-s (c) in the "Class 2 offence" definition, which includes s 80E(1) of the Crimes Act: "Conduct of business involving sexual servitude", including the financing of such a business (s 80E(3)(c)).
It was submitted that ultimately little assistance in construing s 3(3) can be gained from the inconsistent textual references to offences "against" a child in the CPOR Act and that greater assistance can be derived from a consideration of the purpose s 3(3) understood against the context of the provision, which includes its legislative history. Reliance was placed on the relevant second reading speech, considered below.
By reference to the objects of the CPOR Act, it was submitted that the plaintiff's Primary Construction would have the effect of reducing the CPOR Act's application and the associated protection from serious harm for children (see s 2A(a)). It was further noted that, having regard to the objects of the Act, it is not solely concerned with recidivism.
It was submitted that the qualification in s 3(3) of the CPOR Act ensures that recidivist offenders or persons who commit offences against multiple victims cannot benefit from the single offence exemption as extended in s 3A(5) (or from shorter reporting periods as per s 14A). It was suggested that the legislature could have made it clear that s 3(3) only had application in relation to certain offences had that been the provision's intended operation.
Having regard to the context and purpose of the Act, it was submitted that the preferable construction of s 3(3) is that the phrase, offences "committed against the same person", is not limited to registrable offences with an element that involves a physical act directed towards a person. Rather, it should be construed as intended to reflect that registrable offences under the CPOR Act are broadly designated to protect children against wrongful acts, albeit with varying degrees of directness.
Reliance was placed on the numerous decisions of multiple appellate courts (in the context of sentencing) where it has been noted that the possession of child pornography is not a victimless crime such as, R v Porte [2015] NSWCCA 174; 252 A Crim R 294 at 309; R v De Leeuw [2015] NSWCCA 183 at [72], [145]; and R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50 at 52.
It was submitted that the reading down required by the plaintiff's Primary Construction would involve the implication of an additional, unstated exemption from the operation of s 3A(5). Such a course is not supported by the text of the provision and would not promote the purposes of the CPOR Act. Accordingly, the Primary Construction advanced by the plaintiff should not be accepted.
It was further submitted that the plaintiff's Alternative Construction should be rejected as the "same person" in s 3(3) clearly implies a singular person, as confirmed by the Minister's reference in the Second Reading Speech to offences "against more than one victim" as falling outside the provision (extracted below at [68]). Thus, the ordinary effect of s 8(b) of the Interpretation Act as relied on by the plaintiff has been displaced by contrary intention (s 5(2)) of the Interpretation Act).

Consideration

Despite the number of arguments raised for consideration in this matter, there was much that was common ground between the parties. Also, despite the numerous decisions under review and forms of relief sought, there was only one question for determination in this matter: does the plaintiff fall within the carve-out in s 3A(2)(c)(ii) of the CPOR such that he is not a registrable person for the purposes of that Act?
Section 3A(1) defines a "registrable person" under the Act as a person who has committed a (defined) "registrable offence". Section 3A(2) provides some carve outs including s 3A(2)(c). Section 3A(2)(c) in turn provides for six carve outs ((i)-(vi)) for juvenile offenders. The carve out relied upon by the plaintiff is s 3A(2)(c)(ii) which exempts from registration a juvenile offender who has committed, relevantly, a "single" offence under s 91H of the Crimes Act.
At the relevant time the plaintiff was a 17-year-old who pleaded guilty to three counts of possessing child abuse material contrary to s 91H of the Crimes Act. The three counts arose from possession of three memory cards containing identical material. Given the terms of s 3A(2)(c)(ii), the fact that the plaintiff was convicted of three counts rather than a "single" offence might seem problematic but s 3A(5) defines "single offence" for the purposes of s 3A as follows: (5) A reference to a single offence in this section includes a reference to more than one offence of the same kind arising from the same incident.
It was common ground that the plaintiff's three offences were of the same kind and arising from the same incident. It was also common ground that the plaintiff could have been charged with one "rolled up" count pertaining to all of the material. An offence contrary to s 91H comprises the possession of "child abuse material" no matter how many images and how stored. How the charging of material found over different devices is to be charged is a matter for prosecutorial discretion. For example, in R v Wood [2015] NSWCCA 231 one charge contrary to s 91H was based on child abuse material found on six storage devices. If the plaintiff had been charged with one rolled up charge, he would have fallen within the terms of s 3A(2)(c)(ii) and could not have been placed on the register. Nobody seems to have turned their mind to the plaintiff's potential exemption from being a registrable person at the relevant time. Despite this, I do not accept the plaintiff's submission that whether or not a juvenile offender is able to avail themselves of the 3A(2)(c)(ii) exception (as expanded by s 3A(5)) is, for this reason, "arbitrary".
I am satisfied that in the absence of any statutory intention to the contrary, the possession of three storage devices containing identical child abuse material, found at the same time and copied from the original would fall within the meaning of "more than one offence of the same kind arising from the same incident for the purposes of s 3A(5). If the question of whether the plaintiff was a "registrable person" for the purposes of the Act was confined to s 3A then I would be satisfied that he is not a registrable person. His status is complicated by the terms of s 3(3) of the Act, which is in these terms: For the purposes of this Act, offences arise from the same incident only if they are committed within a single period of 24 hours and are committed against the same person. (Emphasis added.)
The critical question of construction in this matter concerns how s 3(3), 3A(2)(c)(ii) and s 3A(5) (which as will be seen below were not enacted at the same time) can be read together harmoniously. Although the CPOR Act received assent on 27 June 2000 it did not commence operation until 15 October 2001. The first version of the Act assented to did not include s 3(3) but it did include a carve out in similar terms as s 3A(2)(c)(ii) and s3A(5) as part of the definition of "registrable offence" in s 2, albeit referable to the predecessor to s 91H (s 578). After the Act received assent but before it commenced it was amended by the Child Protection (Offenders Registration) Amendment Act 2001 (NSW) which commenced operation on 15 October 2001. One of the amendments was the enactment of s 3(3).
The amendment to enact s 3(3) was made for the express purpose of closing loopholes in relation to the length of reporting periods certain persons would be subject to under the Act. As cited above at [29], s 14A of the Act provides for how a court is to determine the length of a registration period. If the registrable person is a juvenile, then the relevant section is 14B which provides for shorter registration periods. Factors such as the class and number of offences are relevant to the length of the reporting period. In that context s 14A(4) of the CPOR Act is in these terms: (4) 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.
After the Act was assented to but before it was enacted, the implementation committee became concerned that the "same incident" as it appears in s 14A might be construed to extend to one incident with multiple victims. It was for that reason that s 3(3) of the Act was inserted. The Second Reading Speech of the Minister for Police includes the following explanation for the amendment: "… The bill closes two loopholes that may allow a small number of recidivist offenders, or offenders against multiple victims, to benefit from the shorter registration periods provided for one-off offenders … The Act treats offences arising from the same incident as a single offence, as it is possible that an offender may be charged with multiple offences for the same action. The Act seeks to impose longer registration periods on recidivists, not people who receive multiple charges for a one-off offence against a single victim. However, the implementation committee recommended that the same incident test needs to be more clearly defined to prevent some high-risk offenders from pursuing legal arguments that they should be subject to the lower registration periods of one-off offenders. For example, they may argue that their offences over a period of time stem from some common causal incident, perhaps their own abuse as a child. It was never the intention of the Government that lawyers would spend valuable court time arguing the meaning of 'arising from the same incident'. Accordingly, new section 3(3) makes the meaning of that term precise and transparent. New section 3(3) adopts the 24-hour threshold used in distinguishing the separate incidents in the offence of persistent sexual abuse of a child. Offenders who commit offences outside a single period of 24 hours demonstrate clear recidivist behaviour and will not be able to satisfy the same incident test. The test also excludes persons who commit offences against more than one victim, even where those offences were committed at the same time. It must be recognised that such offenders pose an increased risk to child safety and should be subject to the more stringent reporting periods imposed on multiple offenders." (Emphasis added.)
It is evident that when s 3(3) was enacted it was not done so with an offence such as s 91H in mind. Rather, it was enacted with the express purpose to prevent persons who commit offences against more than one victim, even where those offences were committed at the same time to argue that they are entitled to a shorter reporting period being "one-off offenders". Although the Second Reading Speech contrasts an offence against the same person with an offence "against more than one person", is says nothing about an offence contrary to s 91H of the Crimes Act.
I am satisfied that when s 3(3) was enacted the legislature did not contemplate that a registrable offence could be committed other than "against a person". It is how to apply s 3(3) to s 3A(2)(c)(ii) and s 3A(5) that is the critical question in this matter.
The plaintiff's primary construction can be summarised in this way: an offence cannot be "against" a person unless an element of the offence is a physical act against a person. In that way, s 3(3) should be read as if it only applies to offences committed against a person in that limited sense and does not apply to an offence contrary to s 91H of the Crimes Act. As stated above, this construction involves reading the words "if committed against a person," into the text before the words "committed against the same person".
The first defendant's construction is that the words "against the same person" in s 3(3) should be given a broader meaning than that contended for by the plaintiff such that an offence contrary to s 91H of the Crimes Act is an offence "against the same person" as required by s 3(3) but only where the child abuse material depicts one real person. It was submitted that read in the context of the CPOR Act the words "against the … person" should be given their natural and ordinary meaning, which does not require a physical act to be directed towards a person but includes an act harming the person in the manner described by the Court of Criminal Appeal in R v Porte [2015] NSWSC 174; 252 A Crim R 294 at [67]-[69] per Johnson J (Leeming JA and Beech-Jones J (as his Honour then was) agreeing) as follows: "The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Heathcote (A Pseudonym) v R at [40]. The courts have stressed that possession of child pornography is not a victimless crime: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 52 [9]; R v Gent at 38 [33]; D'Alessandro at 484 [23]; R v Martin at [43]. An additional feature of harm done to victims of child pornography offences was referred to by Professor Kate Warner (as her Excellency then was) in "Sentencing for Child Pornography" (2010) 84 ALJ 384 at 385 (references omitted): 'The damage done to the children so abused can be, and undoubtedly often is, profound. In addition to the physical and psychological harm from the abuse itself, the New South Wales Sentencing Council has explained that harm may also result from the knowledge, as they grow older, that the material may remain in circulation, heightening the shame and distress associated with being exploited when young and vulnerable'."
In considering which of these constructions is to be preferred, the starting position is that stated by the plurality (Kiefel CJ, Nettle and Gordon JJ) in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (citations omitted): "The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." (citations omitted)
In Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, the High Court (McHugh, Gummow, Kirby and Hayne JJ) stated at [70] (footnotes omitted): "A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme."
Their Honours went on to observe at [78] (footnotes omitted): "However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."
There are four objects are set out in s 2 of the CPOR Act which do not all point in the same direction. Those objects include to protect children from serious harm (including physical and psychological harm caused by physical or sexual assault) and to ensure the early detection of offences by recidivist child sex offenders.
The plaintiff relied on the decision of Latham J in KE in support of a submission that the object of targeting recidivist offenders had particular relevance when considering exemptions under the Act for juvenile offenders. The decision in KE was the only decision concerning the operation of s 3A(2)(c)(ii) identified by the parties; the provision does not seem to have been otherwise judicially considered. Although KE contains some useful observations concerning the relevant carve-out, it is concerned with a different question. The juvenile in that matter had been dealt with for two offences under s 91H(2) of the Crimes Act: one offence of possessing child abuse material and another of disseminating that same material. The material in question were 20 images of his friend's 12 year old girlfriend's breasts, vagina and buttocks. He had copied the images from his friend's phone and shared them with other High School students.
The question which arose in KE was whether both offences of possession and dissemination in s 91H(2) of the Crimes Act fell within the carve-out provided for in s 3A(2)(c)(ii), as extended by s 3A(5), in turn limited by s 3(3). The Commissioner of Police contended, inter alia, that the dissemination of the material to other children meant that the dissemination offence was committed against more than one person.
In considering the objects of the CPOR Act her Honour noted provisions which suggest that it is aimed at recidivists and also noted the potential for juvenile offenders to be disproportionately impacted by a registration decision. Her Honour observed the following in this regard at [25]-[27]: "The exemptions aimed at juvenile offenders, in particular, recognise that the consequences of registration impact severely and disproportionately upon them, in circumstances where immaturity and poor judgment contribute to a potentially isolated instance of offending. Those consequences would inhibit, if not terminate, access to educational opportunities, sporting activities and interactions with a peer group, all of which are important to the personal development and socialisation of young people. Moreover, the consequences of registration would adversely affect career choices and occupational development far into the future. The assessment of risk or future dangerousness is notoriously difficult and potentially unreliable … Against this background, the targeting of recidivism, as one important measure in the assessment of risk, attempts to strike an appropriate balance between safeguarding children from serious harm and the far-reaching consequences to juvenile offenders of registration under the Act."
The plaintiff relied upon her Honour's identification of the prevention of recidivism as being an important object of the Act in support of his primary construction. I do not take anything stated by Latham J in KE to suggest other than that there are a number of objects of the CPOR Act and the prevention of recidivism is one of them.
The question of whether an offence of possession contrary to s 91H(2) is an offence "against" a person was not considered in KE. The argument before her Honour proceeded on the basis that possession of child abuse material pertaining to one (in that case identifiable) child was an offence "against the same person" for the purpose of s 3(3) of the CPOR Act. Her Honour was thus not required to determine that issue. Despite this, Latham J observed the following at [31]-[34]: "Before descending to the particular, it is noteworthy that the phrase 'against the same person' is capable of application to a broad range of offences, not all of which are committed against an identified victim. Class 1 offences and the majority of Class 2 offences are, by definition, committed against an identified victim. Moreover, s 3(3) applies for the purposes of s 14A of the Act, a provision which confines the length of the reporting period for adult offenders who have been convicted of a 'single offence'. A 'single offence' for these purposes includes two or more offences arising from the same incident (s 14A(4)). Offences involving the possession, production and dissemination of child abuse material may be committed absent the identification of the child or children the subject of the images, and even in circumstances where the relevant images are representations of children: s 91FB(3) of the Crimes Act. This type of imagery has been referred to as pseudo-imagery or virtual child pornography: Warner, K. 'Sentencing for Child Pornography' (2010) 84 Australian Legal Journal 384 at 387, 388, referring to the NSW Sentencing Council. Such offences are generally regarded as less serious: Whiley v R [2010] NSWCCA 53 at [63]-[71] (Whiley). Despite the temptation to regard these offences as 'victimless', it has long been recognised that the production, possession and dissemination of child abuse material (or child pornography) victimises children by way of their corruption and exploitation in the production of that material: R v Jones (1999) 108 A Crim R 50 at [9]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 (Gent). The psychological, emotional and physical harm that is occasioned to the child by the production of the material is compounded by the potential for the material to be viewed and reproduced indefinitely, particularly if the dissemination occurs electronically: Warner, K. 'Sentencing for Child Pornography' (2010) 84 Australian Legal Journal 384 at 385. Children traumatised in this way are not 'indirect' victims simply because they may not be capable of identification."
The material covered by the definition of child abuse material is broad. The fact of whether the relevant material depicts an actual child or is material conjured from an offender's imagination is a matter relevant to the objective seriousness of the offence as was noted in Whiley v R. In that matter the Court of Criminal Appeal considered an appeal against the severity of a sentence imposed for an offence contrary to s 91H of the Crimes Act when the child abuse material is imagined. James J, with whom McClellan CJ at CL and Rothman J agreed, observed the following at [63]-[65]: "What is particularly important in the present case is the sentencing judge's findings, which I quoted earlier in this judgment, that the images (which were drawings and not photographs) and the handwritten text were created by the applicant from his own imagination and that there was no evidence on which the sentencing judge could find that the images were created from any photographic images of actual children or that the stories in the text were inspired by actual experiences of the applicant or other persons. The present applicant's offences did not involve the exploitation or victimisation of any actual child. The present case can be contrasted with other New South Wales cases to which the Court was referred, which involved possession of large numbers of photographic images or films of many actual children being subjected to sexual activities, torture or other physical abuse. I am conscious that s 91G of the Crimes Act creates a separate offence of using children for pornographic purposes. However, there could be many offences within s 91H which would involve, at least indirectly, the exploitation or victimisation of actual children, without amounting to an offence under s 91G of the offender using a child for pornographic purposes."
The Court in Whiley went on to find that the sentencing judge had erred in making a finding that the objective gravity of the offences fell "somewhere below the middle range" when he should have found that the offences fell "near the bottom of the range".
I have considered the principles derived from these decisions and I am satisfied that an offence of possessing child abuse material is not a "victimless" crime even when the images are drawings or cartoons. Neither party suggested otherwise. But the construction question is not whether an offence contrary to s 91H is a victimless crime but, rather, whether an offence "against a … person" requires as an element, a physical act committed against the victim.
I have considered the use of the word "against" in the context of the Act as a whole. It was common ground that the word "against" is not used consistently throughout the CPOR Act. By way of example, many of the Class 2 offences can also be committed against adults. They are obviously only "registrable offences" if the victim is a child hence the addition of the words "where the person against whom the offence is committed is a child" before a number of them. Further, these words are sometimes used interchangeably with the phrase "in respect of". This is apparent from some of the definitions of Class 2 offences in s 3 of the CPOR Act as follows: (a1) an offence that involves sexual touching or a sexual act against or in respect of a child, being an offence that is punishable by imprisonment for 12 months or more, or (a2) an offence under section 33 (1) of the Crimes Act, where the person against whom the offence is committed is a child under 10 years of age and the person committing the offence is not a child, or … (b) an offence under section 86 of the Crimes Act 1900, where the person against whom the offence is committed is a child, except where the person found guilty of the offence was, when the offence was committed or at some earlier time, a parent or carer of the child, or (c) an offence under section 80D or 80E of the Crimes Act 1900, where the person against whom the offence is committed is a child, or … … (h) an offence against section 270.6 or 270.7 of the Criminal Code of the Commonwealth where the person against whom the offence is committed is a child, or … (Emphasis added.)
Section 3H of the Act was repealed on 1 December 2018. I note that it used the term "against" in the following context in sub-s (1): For the purposes of this Part, a person poses a risk to the lives or sexual safety of one or more children, or of children generally if there is a risk that the person will engage in conduct that may constitute a Class 1 offence or a Class 2 offence against or in respect of a child or children. (Bold text as in original. Emphasis added.)
I accept the first defendant's submission that it is not possible to divine any unexpressed legislative intention as to the word "against" from its use in the Act given the four distinct objects of the Act and the various ways in which the word "against" is used throughout it. Despite this, I note that it is used in s 3(3) in a similar manner to that found in the long title of the CPOR Act, which refers to offenders who commit "sexual and other serious offences against children".
As for whether the word "against" in the context of s 3(3) requires the relevant offence to have as one of its elements a physical act against a person, I accept that most of the Class 1 and Class 2 offences defined in s 3 do so, but not all of them. Nor do the other exceptions provided in relation to juvenile offenders in s 3A(2)(c) all involve as an element of the relevant offence a physical act against a child.
Subsection 3A(2)(c)(i) provides a carve out for a single offence involving sexual touching or a sexual act. I note that, unlike the Class 2 definition (a1) in s. 3, and no doubt by oversight, it does not include the words "where committed against or in respect of a child", which is the aggravated offence of sexual touching or sexual act. The offence of sexual touching is to be found in s 61KC of the Crimes Act and carries a maximum penalty of 5 years imprisonment. When the victim is a child, the relevant offence is that of aggravated sexual touching in s 61KD carrying a maximum penalty of seven years imprisonment. The offence of committing a "sexual act" is to be found in s 61KE of the Crimes Act. It carries a maximum penalty of 18 months imprisonment. Again, it is the aggravated offence in s 61KF which applies when the victim is a child, which carries a maximum penalty of imprisonment for three years.
Both of these offences require the identification of a victim. If a juvenile was convicted of a number of offences of sexual acts and/or sexual touching arising out of the same incident committed within a single period of 24 hours and committed against the same victim, the juvenile offender would not be a registrable person within the meaning of the Act.
Subsection 3A(2)(c)(iii) provides a carve out for a single offence under ss 91J(1), 91K(1) or 91L(1) of the Crimes Act 1900. Section 91J(1) creates the offence of voyeurism carrying a maximum penalty of 2 years imprisonment (or 100 penalty units); 91K(1) creates the offence of filming a person engaged in a private act carrying a maximum penalty of 2 years imprisonment (or 100 penalty units) and s 91L(1) creates the offence of filming a person's private parts carrying a maximum penalty of 2 years imprisonment (or 100 penalty units). All of these offences pertain to when the victim is an adult. It would appear that there has been a drafting error here as well. The respective subsections should be ss 91J(3), 91K(3) and 91L(3) which all carry higher maximum penalties.
Subsection 3A(2)(c)(iv) provides a carve out for a single offence that falls within a class of offence the regulations prescribe for the purposes of this subparagraph. None have been so prescribed.
Subsection 3A(2)(c)(v) provides a carve out for a single offence an element of which is an intention to commit an offence of a kind listed in 3A(2)(c). Such an offence would carry the same maximum penalty as for the specified offence.
Finally, ss 3A(2)(c)(v) provides a carve out for a single offence of attempting, or of conspiracy or incitement, to commit an offence of a kind listed in this paragraph. Again, such an offence would carry the same maximum penalty as for the specified offence.
Although most of these offences do not involve a physical act against a specified child, that does not inevitably lead to a conclusion that they are not offences committed "against" a child. In addition, and without intending to list all of them, the following Class 2 offences do not involve a physical act "against" a child: s 91E of the Crimes Act (obtaining a benefit from child prostitution), s 91F of the Crimes Act (using premises for child prostitution), other child abuse offences under the Criminal Code (Cth) such as s 273.6 (possessing, controlling, producing or obtaining child abuse material outside Australia), s 273.7 (aggravated offence - offence involving conduct on three or more occasions and two or more people), s 471.19 (using a postal or similar service for child abuse material), s 471.20 (possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service), s 471.22 (aggravated offence - offence involving conduct on three or more occasions and two or more people), s 474.22 (using a carriage service for child abuse material), s 474.23 (possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service), s 474.24A (aggravated offence - offence involving conduct on three or more occasions and two or more people), and an offence against s 233BAB (special offence relating to tier 2 goods) of the Customs Act 1901 (Cth) involving items of child pornography.
It is not necessary for the purposes of determining this matter to consider each registrable offence in order to assess which of them involves a physical act against an identifiable child and which does not. The answer is not always straightforward. For example, the parties joined issue as to whether an offence of sexual servitude contrary to s 80E of the Crimes Act committed in a circumstance of aggravation, namely, that the person under sexual servitude was a child, could be seen to be an offence involving a physical act "against" a child. Although the Commissioner cited that section as an example of an offence committed against a person not involving a physical act, I accept the contrary submission made on behalf of the plaintiff that it does. The definition of "sexual servitude" in s 80B of the Crimes Act extends to person who provides sexual services and who, because of the use of force or threats is either not free to cease providing sexual services, or not free to leave the place or area where the person provides those sexual services.
In KE, Latham J ultimately rejected the Commissioner's contention that the dissemination offence contrary to s 91H(2) of the Crimes Act in that matter was committed against more than one person observing the following at [41]-[44]: "The potential for the material to be viewed by other children does not however, justify the characterisation of those children as persons against whom the offence is committed. That observation is not inconsistent with the nature and extent of the dissemination being a relevant factor in the assessment of objective gravity. I note in passing that it is not an offence under the Crimes Act to expose a child to indecent material, unless the exposure is coupled with an intention to engage a child in unlawful sexual activity: s 66EB. The recognition of 'indirect victims' for the purposes of s 3(3) is problematic for another reason. Is a child who witnesses the indecent assault of another child an 'indirect victim'? By analogy, children who view the images of a child's 'private act' as a result of an offence committed under s 91K(1) of the Crimes Act would be 'indirect victims'. These vagaries render the application of s 3(3) throughout the Act uncertain and difficult. They would give rise to more lengthy reporting periods under s 14A merely on the basis that 'indirect victims' may have been affected by the offending, notwithstanding that the offences were committed within a 24 hour period against the same direct victim. In my view, the language of s 3(3) of the Act requires a direct nexus between the offending conduct and the victim. Throughout the definition of Class 1 and Class 2 offences, there are references to 'the person against whom the offence is committed' being a child, that is, the victim of the offences: s 3(1). The principles of statutory construction demand that the phrase 'against the same person' is interpreted consistently throughout the Act: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. There is no warrant to depart from that construction simply because of a variation between the passive and the active voice." (Emphasis added.)
Although I am not bound by her Honour's decision in KE, I would follow it unless I was satisfied that it was plainly wrong. I am not. In addition, I adopt a number of her Honour's observations that are pertinent to the present matter. I would reject any construction of s 3(3) in the context of s 3A(2)(c)(ii) that would recognise a category of "indirect victims" for the reasons stated by her Honour. I also agree that for the purposes of s 3(3) of the CPOR Act there must be a "direct nexus" between the offending conduct and an identifiable victim.
Her Honour was satisfied that the dissemination offence was committed "against the same person" as the material the subject of each offence depicted the same private parts of the same child, concluding at [59]: "In conclusion, the first defendant's construction of both s 3(3) and s 3A(5) of the Act would significantly narrow the scope of the exemption applicable to juvenile offenders. The inclusion of 'indirect victims' for the purposes of s 3(3) is productive of uncertainty in its application and correspondingly restricts the reach of s 3A(5) and s 14A. Section 3A(5) would effectively only apply to more than one identical offence."
The first defendant relied on the decision in Behsman v Ansell (1957) 98 CLR 284 at 294-295; [1957] HCA 79 where it was held that an offence is committed against a particular person if it is a "wrongful act tending to his or her physical harm or moral injury, albeit with varying degrees of directness". Although it was accepted that that decision was concerned with a different statutory context it was submitted that some assistance is gained from it regarding the natural and ordinary meaning of the phrase "against the … person" in the context of the CPOR Act.
Ultimately, I am satisfied that, giving the word its ordinary meaning in the context of the CPOR Act which includes as an object the protection of children, the word "against" should not be construed in the narrow manner contended for by the plaintiff as only involving a physical act against a child. The offence of voyeurism (provided for in s 91J of the Crimes Act and listed in s 3A(2)(c)(iii) of the CPOR Act) in respect of a child is an example of an offence which requires no physical act on the person being watched but could still be considered to be an offence "against" that person.
Although I do not accept the plaintiff's contention that an offence "against" a person necessarily requires an element of a physical act against the victim, that is not the end of the matter. The question is whether on that construction the carve-out for juvenile offenders in s 3A(2)(c)(ii) can be applied coherently and consistently with the purpose of that exemption.
Subsection (3) of s 3 of the CPOR Act is in the definition section. The carve-out provided for in s 3A(2)(c)(ii) is extended by s 3A(5), but then in turn is limited by s 3(3). The function of definitions in legislative instruments was considered by McHugh J in his dissenting judgment in Kelly v The Queen (2004) 218 CLR 216 at 253; [2004] HCA 12 in the following passage: "... the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was intended to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment."
But reading the definition in s 3(3) into the substantive enactment of ss 3A(2)(i)(ii) as extended by s 3A(5) does not produce a coherent result. For example, a juvenile offender charged with two counts of possessing child abuse material, one count pertaining to a written narrative and the other to a drawing of a cartoon, both possessed within a 24 hour period would only be exempted under s 3A(2)(c)(ii) if they were "committed against the same person". Clearly, they were not committed against any "person" at all.
There is considerable difficulty with applying s 3(3) of the CPOR Act to the exemption provided for in s 3A(2)(c)(ii) given the scope of an offence contrary to s 91H. The problems are, not only that an offence of possessing child abuse material depicting one child does not readily fit the description of an offence "against" a person but, also, that the definition of child abuse material extends to drawings and stories depicting imagined children in a sexual context, which both parties accept in the present case could never be construed as being "against" a person.
On the first defendant's construction the carve out in s 3A(2)(c)(ii) can only apply to a juvenile offender charged with one or more counts of producing, disseminating or possessing child abuse material which comprises images pertaining to one real child committed over a 24 hour period and nothing else.
The first defendant accepted that on its construction a juvenile charged with multiple offences of possessing child abuse material depicting serious sexual assaults on one real child would not be a registrable person (assuming that the offences are committed within a single period of 24 hours and are of the same kind), whereas a juvenile charged with two or more counts of possessing child abuse material depicting cartoon characters or merely describing sexual acts concerning children, where the objective criminality is less, would always be a registrable person. Despite this incongruous result, it was submitted that if this was an omission on the part of Parliament (which was not accepted) that does not mean, as the plaintiff contended, that it can be remedied by a process of construction.
I am satisfied that the incoherent results that flow from the construction advanced by the first defendant is a result of inadvertence and/or omission by Parliament. In enacting s 3(3) the prospect that it could render an exemption for a juvenile offender virtually unworkable was clearly overlooked. Is this then, as the plaintiff contended, a case where this Court can "repair" the oversight by reading words into s 3(3)? As French CJ, Crennan and Bell JJ observed in Taylor v Owners - Strata Plan 11564 (2014) 253 CLR 531 at 548; [2014] HCA 9, there are limited circumstances where a court may read a statutory provision as if it contained different or additional words so as to cure an apparent drafting error (footnotes omitted): "The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".
I am satisfied that the oversight in the present matter is not one of a simple grammatical drafting error. Further, as Gageler and Keane JJ observed in Taylor at [65]-[66] (footnotes omitted): "Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair. Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies." (Emphasis added.)
In seeking to evaluate the coherence of the first defendant's construction with the statutory objectives behind the exemption it seems to me that most of the work the predecessor to s 3A(2)(c)(ii) was intended to do has been eliminated by a sidewind, namely, the subsequent enactment of s 3(3). In light of the principles discussed above, I do not consider it consistent with the purpose of the exemption aimed at juvenile offenders in s 3A(2)(c)(ii) that it can only apply in limited circumstances with both potentially more serious breaches of s 91H(2) (depicting multiple persons) and less serious breaches (depicting cartoons or narratives) not coming within the scope of the exemption given the terms of s 3(3).
The primary argument advanced by the first defendant as to why this construction (which leads to an inconsistent application) is to be preferred over the plaintiff's primary construction is, in the words of Gageler and Keane JJ in Taylor, that the plaintiff's primary construction would require this court to "remedy perceived legislative inattention" in a manner which is beyond the scope of this court's task of construction. Although there is some force in that argument it focusses on the purpose of s 3(3) rather than on the purpose of the exemption in s 3A(2)(c)(ii) as extended by s 3A(5).
I cannot accept the first defendant's submission that the fact that the scope of the carve-out is so narrow is not a reason to read down s 3(3), nor can I accept that it was the intention of Parliament to create the exemption with such a narrow and incongruous application.
The offences chosen by the legislature in s 3A(2)(c) as rendering some juveniles eligible to avoid registration are the least serious of the Class 2 offences. The purpose of the exemptions, as Latham J observed in KE, is to protect a child offender from the onerous repercussions of registration for an isolated instance of offending in circumstances where immaturity and poor judgment are usually contributing factors. I accept that the targeting of recidivism involves the striking of a balance between safeguarding children from serious harm and the consequences of registration under the CPOR Act for juvenile offenders. I am also satisfied that construing the exemption in a manner which renders it workable is to construe it harmoniously with the scope and purposes of the CPOR Act.
I do not consider it is a question of "repair", beyond the task of construction I am undertaking, to construe the CPOR Act such that s 3(3) does not apply to s 3A(2)(c)(ii). It is to be accepted that s 3(3) commences with the words "for the purposes of this Act" but if its application to a possession offence under s 91H(2) for the purposes of 3A(2)(c)(ii) creates incoherence, then to construe it in that way would be inconsistent with established principles.
Accordingly, I am satisfied that s 3(3) does not apply to the exemption for a possession offence contrary to s 91H for the purposes of s 3A(2)(c)(ii) of the Act. The plaintiff was not a registrable person at the relevant time as he fell within s 3A(2)(c)(ii) as extended by s 3A(5).
Given this conclusion it is not necessary for me to consider the plaintiff's Alternative Construction, but I shall do so briefly. It was contended that by operation of s 8(b) of the Interpretation Act 1987 (NSW), "the same person" in s 3(3) should be read as "the same person or persons". I do not accept that construction. Given the terms of the Second Reading Speech I am satisfied that it would undermine the intended operation of s 3(3).
The stated purpose of s 3(3) of the CPOR Act is to ensure that offences committed against multiple children are not caught by the exemption. In any event, s 5(2) of the Interpretation Act provides that that Act applies except in so far as the contrary intention appears. I am satisfied that the ordinary effect of s 8(b) of the Interpretation Act has been displaced by contrary intention as evident in the Second Reading Speech.

Conclusion

In addition to the inadvertent incoherence created by the enactment of s 3(3) and its potential application to s 3A(2)(c)(ii) and s 3A(5) of the CPOR Act, it would appear that there are drafting errors in some of the other exemptions in s 3A(2)(c) identified above at [91]. Further, the definition of Class 2 offence in s 3 contains references to provisions which do not appear to exist or disclose no offence. These are all matters for Parliament to consider if so minded.
As for the appropriate orders, the first defendant accepted that if the declaration sought was made the Court would remove information concerning the plaintiff from the register. Accordingly, no orders in the nature of prohibition are needed in relation to the plaintiff's pending criminal proceedings arising under the CPOR Act and the CPOP Act.
As for the order sought quashing the bond imposed by the Newcastle Local Court on 14 August 2018, I am satisfied that there was no basis for the plaintiff to be convicted and sentenced as he was not a registrable person as at that date.

ORDERS

I make the following orders: 1. A declaration that the plaintiff was not as at 24 November 2016, or at any subsequent time, and is not, a "registrable person" within the meaning of s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW). 2. The decision of the Local Court of NSW at Newcastle on 14 August 2018 imposing a prohibition order on the plaintiff under s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) is quashed. 3. The decision of the Local Court of NSW at Katoomba on 4 August 2020 imposing an interim prohibition order on the plaintiff under s 7 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) is quashed. 4. The finding that the plaintiff was guilty of an offence against s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) and the bond imposed by the Local Court of NSW at Newcastle on the plaintiff on 14 August 2018 under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (H 233593898) is set aside

Amendments 15 November 2022 - Pseudonym order made pursuant to s 15 of the Children (Criminal Proceedings) Act 1987 (NSW). 15 November 2022 - Access to the file restriction added to the pseudonym order. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2022

Child Protection (Offenders Registration) Amendment Act 2001(NSW)

Mental Health (Forensic Provisions) Act 1900(NSW)

Crimes (Appeal and Review) Act 1999(NSW)

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