Magistrates - Appeals and review - Tasmania - Motion to review - When remedy available - Error or mistake on the part of the justices - Whether error must appear from the materials before the magistrate - Whether further evidence may be adduced to show "unwitting error".

Justices Act 1959 (Tas), ss107(4)(a), 110(2).

Gower v Roffe 38/1966; Pulfer v Fletcher 67/1966; Cleaver v Powell [1979] Tas R 134, Wallington v Devries [1979] Tas R (NC 11), (42/1979); Green v Fletcher [1988] TASSC 4; [1988] Tas R 59; Webster v White [1991] TASSC 75 (58/1991); Turner v Driver [2005] TASSC 85, followed.

Brinkman v Dix [1997] TASSC 140 (134/1997); Brinkman v Dix (No 2) [1999] TASSC 65; Hudson v Australian Food Group Pty Ltd [2006] TASSC 48; (2006) 15 Tas R 322, not followed.

Judgment Number: [2011] TASSC 41

1 A charge against the applicant of possessing, between 1 March 2009 and 29 June 2009, child exploitation material against the Classification (Publications, Films and Computer Games) Act 1995, s74A, was found proved by the Chief Magistrate.

2 Under the Sentencing Act 1997, s7(f), a conviction was recorded and the proceedings were adjourned for two years "on condition that the defendant enters into an undertaking to be of good behaviour and commit no offence under the relevant legislation during that time, and he will appear before the Court if called upon during that time". Under the Community Protection (Offender Reporting) Act 2005, s6(1), an order was made directing that the Registrar cause the applicant's name to be placed on the register under the Act and that he comply with its reporting obligations for two years.

3 The applicant moved this Court to review the orders under the Justices Act 1959, PtXI. There were three grounds in the notice to review. The first was that the recording of the conviction was a manifestly excessive response in all the circumstances of the case. The second was that the magistrate erred in failing to be satisfied under the Community Protection (Offender Reporting) Act, s6(1), that the applicant did not pose a risk of committing a reportable offence in the future. The third was that the magistrate erred in making the reporting order "as the court was deprived of relevant and cogent evidence as to the offending material's public availability which led to a miscarriage of justice". For reasons I now give, I have concluded that the first two grounds have been established.

4 The applicant possessed a laptop computer. On 29 June 2009, he reported to police that it had been stolen from his motor vehicle. On 16 July 2009, police recovered it. An examination of its contents revealed that a publication called "The Pearl" was in the recycle bin. It was unclear who had put it in the bin, that is to say whether the applicant had done so. It had been downloaded and saved onto the computer by him and had been there for at least the period alleged in the complaint. It appeared to be an electronic version of a magazine or magazines from the Victorian era. It was described by the prosecutor as approximately 450 pages containing journal-style entries. A number of them described children as young as 12 years of age engaging in sexual activity with children and adults. Its opening lines referred to it as "classic victorian erotica" and as a "legendary Victorian underground magazine of erotica contains six serialized short novels: Sub-umbra, Miss Coote's Confession, Lady Pokingham, La Rose D'Amour, & Flunkyana". Among the contents were pornographic poems, including limericks. It was entirely fictional. There were no pictures.

5 The applicant did not give evidence. A substantial part of the facts was either agreed or drawn from a long interview with the applicant by the police. He accepted that over a period of time he had downloaded a considerable volume of pornographic material. However he emphasised that he had not wanted to download anything that was unlawful and in particular, child pornography. He accepted that he downloaded videos, images and written stories he referred to as "Literotica". They were for his own enjoyment and not for others. He thought of The Pearl as a 19th century magazine he had downloaded from Wikipedia. His preference was material relating to females of a younger age group, but not an under age group. He maintained that he was always careful to ensure that there was no child exploitation material. That there was only one item in his possession on the computer that was in that category, bears out what he said. The magistrate found that he did not intend to break the law. Nevertheless, it was also found that he was familiar with the contents of the document.

6 He was 54 years old. His occupation was taxi driver and city council alderman. His income was $48,000 per year. He had been married for 30 years and had three adult children. He was a matriculant and had university degrees. He was president of the student union when at university. He had 15 years' employment in the Commonwealth Public Service. He and his wife ran a business for eight years. He had been an alderman for 20 years. As such he had considerable involvement in community affairs. He had been a member of the Army Reserve for 20 years, and held the rank of Captain. He was a member of the board of a building society.

7 The magistrate was told that a conviction was likely to have a significant impact on him. He was due to stand for re-election as an alderman seven months later. However, he had been on leave from the council for six months at the request of the Mayor, and it was unlikely that he would continue as an alderman. He had been suspended from running Army cadet training and it was unlikely that he would return to it or continue with taxi driving. He had suffered significant adverse media publicity as a result of the case, and considerable embarrassment. It was likely that he would have difficulty finding alternative employment. It was expected that his income would fall away significantly.

8 The magistrate regarded what the applicant had done as reckless rather than deliberate. He found him to be of good character and accepted that financial repercussions might well be significant. His financial situation was tight and would become tighter. He had made significant community contributions over the years and was entitled to credit for that. He had the support of his family.

9 His Honour referred to a deterrence policy behind the legislation and added: "Obviously when sentencing for possession or any involvement with child exploitation material the court talks about the exploitation of those involved and all those sorts of principles, which are always still relevant, even in a case like this which is at the lower end of the scale." The sentencing order was then made.

10 The offence was a Class 1 offence under the Community Protection (Offender Reporting) Act. The magistrate referred to "a very low test in regard to the threshold", no doubt a reference to the requirement of s6(1) that the court must make a reporting order "unless the court is satisfied that the person does not pose a risk of committing a reportable offence in the future". The applicant's counsel submitted that the applicant was not a risk to the community. The magistrate responded in terms that are difficult to follow, saying: "I tend to think that's right, although I'm troubled by volume and other matters that came out in evidence." The reporting order was then made without further explanation. His Honour noted that the maximum reporting period allowable was eight years, but he only required it for two years in the applicant's case.

11 Six days after the conclusion of the case, a letter from the applicant's counsel was received by the Magistrates Court. It asked that the sentence be varied or rescinded because the following matters had come to light as a result of responses from members of the public after the imposition of the sentence:

1 The Pearl could be purchased online and from bookshops from mainstream Australian booksellers such as Angus & Robertson, Amazon, Borders, etc, and was available from most major booksellers in hardcopy and eBook formats, including in Hobart, with no classification and no shrink wrapping.

2 Versions of The Pearl had been published by mainstream publishing houses such as Random House in 1999 and also by Harper.

3 At the time The Pearl was originally in print as a pornographic periodical from 1879 - 1880, the age of consent in England was 12.

4 Literature like The Pearl was not uncommon in that there was a lot of so-called Victorian pornography that had been reprinted.

12 The matter was listed before the magistrate nine days later. It was submitted that in light of the new matters that had been raised, general deterrence did not have the same significance in the decision to record a conviction. The magistrate indicated agreement. His Honour said that if the new matters had been made known to him at the time of sentencing, "the question of general deterrence wouldn't have assumed the paramouncy that it did" and that he "may well have had a different view", and "would have been fairly sympathetic to a disposition without conviction". His Honour also said that he would have been very reluctant to make a reporting order as well. Nevertheless, his Honour did not accede to the application. He considered that the reporting order was not amenable to correction under the Sentencing Act, s94, because it was not a sentence nor part of a sentence, and he declined to reconsider the recording of a conviction until after the motion to review to this Court had been determined. The hearing before his Honour currently stands adjourned to a date to be fixed pending the determination of the motion by this Court.

The application to adduce further evidence on the hearing before this Court

13 At the outset of the hearing of the motion to review, the applicant's counsel applied to adduce further evidence in the form of an affidavit by the applicant's solicitor. I received it de bene esse, that is, subject to a determination concerning its admissibility on the hearing of the motion. Its contents included the following. Prior to the imposition of the sentence, the solicitor was unaware of the public availability of The Pearl. After the imposition of the sentence, there was a public discussion about it in the Mercury newspaper. Following that it was learned that The Pearl was available online at three publishers, on Wikipedia and at booksellers in Artarmon, New South Wales, and Fremantle, Western Australia. It was also stocked by a Hobart bookseller and had been stocked with another until it was returned in January 2010 due to lack of demand. It was not classified by the Australian Classification Board.

14 Counsel for the applicant said that the magistrate inferred that the publication had limited availability online but the further evidence established far greater accessibility to the public. He submitted that having regard to that evidence, the factor of general deterrence should have been given less prominence than was given by the magistrate when sentencing.

15 For the power of the Court to receive the further evidence, counsel referred to the Justices Act 1959, s110(2), which provides that "on the hearing of a motion to review, the court shall, upon consideration of the evidence and materials adduced and brought before the justices, and such further evidence (if any) as it thinks fit, review the order so far as relates to the ground set forth in the notice to review, and thereupon may do all or any" of a number of things, such as dismiss the motion, set aside or quash the order of review and remit the case to be re-tried.

16 Counsel relied on statements of Underwood J (as he then was) in Brinkman v Dix (No 2) [1999] TASSC 65 and of Tennent J in Hudson v Australian Food Group Pty Ltd [2006] TASSC 48; (2006) 15 Tas R 322.

17 When the Justices Act was originally enacted in 1959, it provided for an aggrieved party to proceedings before justices (which term included a magistrate) to bring his or her grievance before this Court in one of two ways. If he or she wished to argue that on the materials before the justices a prima facie case of error or mistake by the justices on a matter or question of fact alone, or of law alone, or of both fact and law had occurred, the grievance was brought by way of a motion to review in the then form of s107, and it was argued on the materials that were before the justices. Notwithstanding that s110(2) gave a power to receive further evidence, as it thought fit, it was settled that further evidence could not be relied upon to establish that an error of the necessary kind had been made by the justices. The reason was that s107(4)(a) relevantly required that an affidavit in support of a motion to review show a prima facie case of error or mistake on the part of the justices on a matter or question of fact alone, or of law alone, or of both fact and law. Although the Act has since been amended, its current requirements are similar. Section 107(4)(a) now requires that the grounds in a notice to review shall allege an error or mistake on the part of the justices on a matter or question of fact alone, or of law alone, or of both fact and law.

18 Because of the requirements of s107(4)(a), it was held by Gibson J in Gower v Roffe, unreported 38/1966 at 1, on the hearing of a motion to review a sentence under the Act, that it would be wrong to receive further evidence because his task was to consider whether the magistrate was in error on the material before him. Two months later in Pulfer v Fletcher, unreported 67/1966, Burbury CJ entirely agreed, adding that the task of the court is to consider whether the magistrate was in error on the material before him and that apart from exceptional cases, it would be mischievous to permit evidence to be placed before the court of mitigating circumstances which were not before the magistrate.

19 The other way to attack an order of justices under the original Act was by way of appeal under s113. It was the way chosen by aggrieved parties if they wished to rely on evidence that was not before the justices. Such an appeal was conducted by way of a complete rehearing, with witnesses who gave evidence before the justices having to do so again before a judge. However, under s113(8), such a course was not open to a person against an order made ex parte, an order committing a defendant for trial, an order made on the defendant's plea of guilty or a sentence.

20 Concern was expressed by both prosecutors and judges that a defendant was entitled to a second hearing regardless of whether an error had occurred and merely because he or she did not like the result of the first hearing. Most hearings in courts of petty sessions were before legally trained magistrates and it was considered an unreasonable impost on resources to allow an unfettered right to a second contested hearing of a complaint before a judge. As a result, the Act was amended by the Justices Amendment Act 1974, so as to remove the right of appeal under s113. Thereafter, aggrieved persons were generally confined to a motion to review under s107, which is in a substantially similar form today, and to being forced to establish error on the part of the justices on the material that was before the justices, notwithstanding the power to receive further evidence under s110(2). The authority of Gower v Roffe and Pulfer v Fletcher remained, and certainly so for motions to review sentences.

21 The question was considered again by Green CJ in Cleaver v Powell [1979] Tas R 134. The applicant in that case sought to adduce evidence concerning a sentence imposed on a co-offender that was not before the sentencing magistrate, in support of an argument that the applicant's sentence was unjustifiably disparate. At 136 his Honour referred to Pulfer v Fletcher as authority for the proposition that a court hearing a motion to review should only receive fresh evidence relating to matters which were not before the magistrate in exceptional circumstances. At 138 his Honour affirmed that the statutory jurisdiction under the Justices Act prescribed that the court only had jurisdiction to review orders of magistrates if they were shown to have made an error or mistake of fact or law on the materials that were before them. As a result the further evidence was not received. His Honour's views were followed three months later by Everett J in Wallington v Devries [1979] Tas R (NC 11), unreported 42/1979.

22 Green CJ reconsidered what constituted an "error of fact" when a member of the Full Court in Green v Fletcher [1988] TASSC 4; [1988] Tas R 59 at 61, 62. The question arose under the Justices Act, s76A, which has since been repealed. He confirmed the view he reached in Cleaver v Powell and found support in a number of cases concerning appeals based on errors of fact that had been decided in a number of different jurisdictions in this country and in the United Kingdom. His Honour rejected the suggestion in Bick v Morelli [1969] Qd R 94 and Kimmorley v Atherton, ex parte Atherton [1971] Qd R 117 that a magistrate's "unwitting error", which could only be established by further evidence, was capable of being regarded as an error of fact. Cosgrove and Underwood JJ at 65 were also of the view that evidence that was not before the magistrate could not show the required error.

23 Three years later, on the hearing of a motion to review a finding that charges had been proved in Webster v White [1991] TASSC 75 (unreported 58/1991), an applicant sought to establish by further evidence that a magistrate had made an error of fact by way of an "unwitting error" of the kind considered in Bick v Morelli, Kimmorley v Atherton, ex parte Atherton, Green v Fletcher and the earlier cases in this Court to which I have referred_._ Zeeman J conducted an extensive review of authorities and at 6 agreed with what was said by Green CJ in Green v Fletcher. His Honour held that the error or mistake on the part of the justices referred to in s107(4)(a) must be one which appears from the materials before the justices. He added what had been made clear by the decisions of at least six judges, either at first instance or in the Full Court, that notwithstanding sympathy that might be felt for convicted defendants in some cases in which further evidence revealed a miscarriage of justice, Parliament had not seen fit to confer on the Court a power to review an order of justices for an unwitting error or mistake. The jurisdiction was a statutory one and the terms of the statute defined its extent.

24 There were however, two decisions of Cox J that were subsequently relied upon by Underwood J in Brinkman v Dix [1997] TASSC 140 (unreported 134/1997) in support of a contrary view. The first was Randall v Lowe unreported 59/1985 in which an applicant sought to have reviewed a sentence based on what he claimed was marked disparity between his sentence and that of a co-offender which had been imposed by the same magistrate on an earlier date. Cox J found that no such disparity had been shown and dismissed the motion to review. His Honour made no mention of the question I am considering and which had been considered in the cases to which I have referred, no doubt because it was not raised for consideration. In fact, there is nothing in his Honour's judgment to suggest that the magistrate was unaware of the co-offender's earlier sentence and circumstances when he sentenced the applicant.

25 The other decision of Cox J was Smart v Filz [1994] TASSC 123 (unreported B46/1994). The relevant ground of a motion to review a sentence also raised the question whether there was marked disparity between the applicant's sentence and the sentence imposed on a co-offender. However, this time the co-offender's sentence was imposed subsequent to the applicant's sentence so that if there was an "error" by the magistrate it had to have been an unwitting one. Cox J did not consider whether such an error was reviewable. As his Honour had done in Randall v Lowe, he held that there were ample reasons for differentiating between the two sentences and that no injustice was apparent.

26 Nothing was said by Cox J in either of those cases that doubted the correctness of the established view that an "unwitting error" was not a reviewable one under the Act.

27 In the 1997 case of Brinkman v Dix, Underwood J had before him an applicant's motion to review a sentence based on an "unwitting error" by a magistrate because of disparity between it and a later sentence imposed on a co-offender. His Honour held that such an error could found a valid motion to review. In so holding, no reference was made to Gower v Roffe, Pulfer v Fletcher, Wallington v Devries or Webster v White. Reference was made to the fact that in Green v Fletcher, the Full Court had considered a different section in the Act, s76A(1)(c). With doubtful justification, his Honour thought that in Randall v Lowe and Smart v Filz, Cox J assumed that marked disparity between sentences could be a valid ground.

28 Underwood J declined to follow the view of Green CJ in Cleaver v Powell. He considered it to have been shown to be wrong by Lowe v R [1984] HCA 46; (1983) 154 CLR 606, which had been decided before Green v Fletcher and Webster v White, and by Postiglione v R [1997] HCA 26; (1997) 145 ALR 408, which had been decided since then. In Lowe v R, the court was unanimously of the view that marked disparity between sentences could be a ground of appeal under criminal appeal legislation, although the members of the court were not agreed as to the reason. It appears from the judgments that the interests of justice was a major consideration. At 613 - 614, Mason J, with whom Wilson J agreed at 616, thought that intervention by an appellate court was justified if there was a manifest discrepancy such as to engender a justifiable sense of grievance in the appellant. Mason J referred to such a discrepancy as constituting or causing error. Reference was also made by Underwood J to the statements of Dawson and Gaudron JJ in Postiglione v R at 411. They included that the parity principle is an aspect of equal justice and that if an error arises out of unequal justice, the error should be corrected.

29 The conclusion of Underwood J at 12 was that Lowe v R was authority for the proposition that upon the hearing of a motion to review under the Justices Act, a marked disparity between sentences which engendered a justifiable sense of grievance in an applicant and an appearance of injustice to an objective bystander amounted to an error of law, and that such an error did not have to be apparent from the materials before the sentencer at the time the sentence was imposed. It seems that it must be inferred that his Honour concluded that such an error amounted to an error or mistake on the part of the justices, which was required to be shown by s107(4)(a).

30 A difficulty that immediately comes to mind upon a consideration of his Honour's conclusion is that the nature of an appeal under the common form of criminal appeal legislation and the nature of a motion to review under the Justices Act are different. For example, the Criminal Code, s402(1), gives the Court of Criminal Appeal a power to uphold an appeal if a miscarriage of justice is shown. Under the Justices Act, a motion to review cannot be upheld for that reason, although under s111(2)(ab), it may be dismissed if there was no substantial miscarriage of justice. Section 107(4) requires that a ground of review must allege an error or mistake on the part of the justices, whether of fact, law, or both, or lack of jurisdiction to make the order to be reviewed. It is particularly that requirement for error on the part of the justices that makes a motion to review different from an appeal under the Code, which does not require that the judge who made the order, or the jury who returned the verdict, to have committed an error or mistake. That difference explains what was a settled line of authority in this State that an "unwitting error" cannot form the basis of a ground of review and as a consequence, evidence that was not before the justices may not be considered, except perhaps in an exceptional case. As to which see Pulfer v Fletcher (above), and Wallington v Devries (above).

31 On appeal to the Full Court in Brinkman v Dix [1998] TASSC 135, the point I am considering was not raised by a ground of the appeal, nor was it touched upon by the majority of the court. They merely determined that Underwood J had erred when he found a marked disparity of the relevant kind, and remitted the motion to his Honour to deal with grounds of the motion that had not been determined.

32 The question of receiving further evidence upon the hearing of a motion to review came to be reconsidered by Underwood J when Mr Brinkman's motion returned to him for further hearing. In the meantime, R v Stanley (1998) 7 Tas R 357 had been decided by the Court of Criminal Appeal. His Honour was a member of that court and at 361, 362 he approved of the proposition that the court should exercise the power in the Criminal Code, s409(1)(c), to receive evidence upon the hearing of an appeal if it showed the true significance of facts which were in existence at the time of sentence or explained facts which were before the sentencing judge so as to put them in a new light.

33 When Mr Brinkman's motion to review returned to Underwood J for further consideration in Brinkman v Dix (No 2) (above), the applicant sought to adduce evidence at the hearing of the motion of events that occurred after the impugned sentence was imposed. That was opposed by the respondent, but in the event that it was allowed the respondent also sought to adduce further evidence. Referring to R v Stanley as well as Plumstead v R [1997] TASSC 158; (1997) 7 Tas R 206, R v Araya & Joannes (1992) 63 A Crim R 123 at 129 - 130, and R v Smith (1987) 44 SASR 587 at 588, Underwood J affirmed what he said in R v Stanley and applied it, receiving the evidence under the power given by the Justices Act, s110(2). Once again, his Honour did not analyse the differences between an appeal under the Criminal Code and a motion to review under the Act, nor did his Honour refer to the earlier decisions of judges of this Court in which a contrary view was settled. He thought that the power to receive further evidence given on an appeal by the Criminal Code, s409(1), was just as wide as that conferred by the Justices Act, s110(2), on a motion to review.

34 Upon the hearing of a motion to review that was treated as concerning both conviction and sentence, Evans J in Turner v Driver [2005] TASSC 85 at par[6] held that the clear effect of the Act, ss107, 108 and 110(2) was that, save for a ground that asserts that the magistrate has no jurisdiction, this Court's jurisdiction on a motion to review is confined to reviewing circumstances where it can be shown that there has been an error or mistake on the part of the magistrate on a matter of fact or law. His Honour refused to receive further evidence, saying: "The magistrate could not err in relation to a matter of which he had no knowledge." He cited Cleaver v Powell and Webster v White as examples of the application of the principle.

35 On the hearing of a motion to review the following year in Hudson v Australian Food Group Pty Ltd (above) at par[55], Tennent J simply followed what was said by Underwood J in Brinkman v Dix (No 2) and made no mention of Turner v Driver or of any of the other decisions of judges of this Court in conflict with what was held in Brinkman v Dix (No 2).

36 With respect to Underwood J and Tennent J, the settled and long line of authorities in this State required a contrary conclusion to the one to which they came. In my view, a single judge of this Court was and is obliged to follow them. There is not sufficient doubt about them that leads to a conclusion that they were clearly wrong, and without a contrary decision of the Full Court, I must refuse the application to adduce further evidence.

37 I mention that I do not accept the submission of the applicant's counsel that if the evidence in question had been considered, the need for general deterrence would have been lessened. The converse is certainly arguable. The evidence would have demonstrated that the offending material was freely available. It could be argued that a sentence of general deterrence would have assisted to put an end to that state of affairs. A sentence that had no or little element of general deterrence could be argued to encourage unlawful possession of material in the community.

Was the recording of a conviction manifestly excessive?

38 The relevant ground of the motion is that the magistrate erred in law by imposing a penalty that was manifestly excessive. However, as argued, it is only the recording of a conviction that is attacked. At the hearing before the magistrate, the prosecutor asked for a conviction to be recorded. The applicant's counsel asked that it not be recorded.

39 In his comments when passing sentence, the magistrate did not directly discuss the matter. However, it may be inferred that his Honour's comments were directed to the issue, as well as to the question of sentence generally. I referred to those comments earlier. They do not assist my determination.

40 For the applicant, it was submitted to this Court that a conviction should not have been recorded because "the offending was at the lower end of the scale"; it concerned possession of one Victorian publication that was entirely fictional; that apart from it, the applicant had avoided downloading unlawful items, the offending material being among a great number of other items that did not offend; it was not a case of an offender trolling through pornography sites looking for child exploitation material; there was no suggestion that he was interested in child exploitation; as was found by the magistrate, his conduct was reckless and not deliberate; he was a 54 year old with no record for offending; he had made significant contributions to the community; he had assisted and co-operated with the police in their investigations; and his conviction would have a significant impact on him financially and personally.

41 For the respondent it was submitted that it was relevant that notwithstanding that it was fictional, the material contained a considerable amount of child exploitation content, including references to the ages of children as young as 12 and their virginity, attendance at school, pre-pubescence and parents, and to them engaging in sexual activity with adults and other children. The applicant had revealed to police that he was familiar with the contents. It was argued that he was not entitled to a discount for pleading guilty and that the need for general deterrence and denunciation required the recording of a conviction. Finally, it was submitted that a sentencing magistrate has a very wide discretion and that the Court may not overturn the recording of the conviction unless it is a case of plain error in the sentencing process. Whittle v McIntyre [1967] Tas R (NC 6) (unreported A19/1967); Jones v Fleming [1957] Tas SR 1.

42 I deal first with the provisions of the Sentencing Act concerning the recording of a conviction and the making of the order that was in fact made under s7(f). When doing so, I largely reproduce what I said in the Court of Criminal Appeal in Attorney-General v Smith [2002] TASSC 10, and at first instance in Badcock v White [2004] TASSC 59.

43 Under s7, certain orders punishing an offender may only be made if a conviction is recorded. Examples are fines, sentences of imprisonment and community service orders. Paragraphs (d) and (f) authorise sentencing orders with or without recording a conviction, namely a probation order, and the one made in this case, an adjournment of the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, his or her release. Paragraph (h) authorises a dismissal of a charge without conviction.

44 By s10(1), a finding of guilt without the recording of a conviction is not to be taken to be a conviction for any purpose, except as may be statutorily provided otherwise. Nevertheless, there is no reason why a court that later deals with the offender for a subsequent offence may not consider him or her to have been found guilty of the earlier offence and to take it into account when sentencing.

45 As with all sentencing options, a court has a discretion whether or not to record a conviction. By the Sentencing Act, s9, it is provided that:

"In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including -

(a) the nature and circumstances of the offence; and

(c) the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects."

All three of those paragraphs are relevant to the circumstances of this case.

46 When considering whether to record a conviction, a court must weigh up the public interest and the need for an official record to be made of the commission of the offence, against the beneficial nature to the offender of a conviction not being recorded. All the circumstances of the case must be regarded, including those specified in s9. If the offence is of a relatively serious nature, the court may feel compelled to record a conviction.

47 Ordinarily, the nature and circumstances of the offence will loom large as relevant matters. But in that regard it is to the actual conduct constituting the offence, and the actual circumstances in which it was committed, that the court must have regard, rather than the offence in the abstract. Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 577 and 595. For the offence in this case, the prescribed penalty includes imprisonment for a term not exceeding two years. But the fact that imprisonment is a sentencing option or that the offence could be committed in grossly serious circumstances in some cases, is not determinative.

48 When sentencing the applicant for his offence, the magistrate spoke of "the exploitation of those involved" as "always still relevant, even in a case like this at the lower end of the scale". However, for this case that question was to be determined in the applicant's favour. No children were involved in what he did. No child was exploited. What he possessed was a work of fiction from the 19th century.

49 Because of the very wide discretion of a magistrate when sentencing, I have hesitated concerning the outcome of this aspect of the case. However, after long and careful reflection I have concluded that the circumstances demanded that no conviction be recorded having regard to the circumstances of the offending and of the offender himself. I have paid particular regard to the circumstances itemised in s9. The nature and circumstances of the offence were minor. It was committed recklessly but not wilfully, with a desire not to infringe the law. That is confirmed by the fact that among a great number of items the offender had downloaded, this was only one that was in breach of the law. The item is a work of fiction, arguably of historical interest. No child was in fact exploited. The offender's antecedents were excellent. At the age of 54 he had no record and he had a history of public service and employment. There is no suggestion that he is a paedophile. The impact of a conviction on his economic and social wellbeing and employment prospects was considerable. The magistrate detailed the reasons for that in his comments when sentencing.

50 Accordingly, with utmost respect to the learned magistrate, I conclude that error occurred when a conviction was recorded.

51 The requirements of the Community Protection (Offender Reporting) Act are stringent and require the making of a reporting order in a great number of cases, the circumstances of many of which would not require a reporting order in most, if not all, other jurisdictions in the country. Further, what useful purpose a reporting order could serve in the applicant's case is difficult to understand. However, those observations are not relevant considerations. The Act, s6(1), required that an order be made unless the court was satisfied that the applicant did not pose a risk of committing a reportable offence in the future. Its terms were not limited to a consideration of whether he did not pose a risk of committing the same or a similar offence to the one he actually committed. The definition of a reportable offence is extremely wide, largely extending to all kinds of offences with a sexual motive, against children and adults, and also kidnapping and stalking.

52 Did the magistrate err by failing to find that the applicant did not pose a risk of committing a reportable offence in the future? To uphold this aspect of the motion I must be positively satisfied that no magistrate acting reasonably could have failed to so find. Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117; Hrycyszyn v Groves 27/1982. It is not enough that I would have found that, and as a consequence would not have made the order.

53 In E v Jordan [2009] TASSC 61, I held that a magistrate had not erred when he said that an offender posed a low risk of committing a reportable offence in the future, but he was unable to say he did not pose a risk, and then made the order. I rejected that the power was a discretionary one and pointed out that "is to" in s6(1) meant that it was directory. See Acts Interpretation Act 1931, s10A(1); S v Tasmania [2007] TASSC 62; (2007) 16 Tas R 292. It obliged the magistrate in that case to make the order in the circumstances found. At par[21] I mentioned, but did not determine, the question whether the passage in s6(1) "unless the Court is satisfied that the person does not pose a risk of committing a reportable offence in the future" meant that the Court must be satisfied that the person poses no risk whatsoever, not even a farfetched or fanciful one. I think the answer is that such a test is too stringent. It is difficult to accept that the legislature intended that a farfetched or fanciful risk would be enough. But nevertheless, it is a sufficient risk if it can be correctly described as a risk in a real sense, and not one that is farfetched and fanciful. Often the nature of the offender's offence will demand a positive answer, but that will not always be the case.

54 The conclusion I have come to is that no magistrate could reasonably have failed to find that the applicant did not pose a risk of committing a reportable offence in the sense I have explained. The circumstances of his offence, his age and good record, and the significant impact of the offence on him, actually and likely, all require a conclusion that he does not pose a risk of committing a reportable offence in the future in a real sense. What he has suffered already from his possession of The Pearl and these proceedings should prove an effective personal deterrent.

55 For the reasons I have given it will be ordered that the recording of a conviction is set aside and the order under the Community Protection (Offender Reporting) Act is quashed. The applicant will remain subject to the magistrate's order under the Sentencing Act, s7(f), that the proceedings were adjourned for two years on condition that he entered into an undertaking to be of good behaviour and commit no offence under the relevant legislation, and that he appeared before the court if called upon, during that time.