Supreme Court of the ACT|2015-08-24|Before: Murrell CJ

Znotins v Harvey [2015] ACTSC 241 (24 August 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Appeal against sentences dismissed and sentences confirmed.
Leave granted to appeal sex offender registration order.
Appeal against sex offender registration order allowed and order set aside.

CRIMINAL LAW - Appeal and new trial - appeal against sentence - whether sentence manifestly excessive - whether mental health problems taken into account when imposing custodial sentence

PRACTICE AND PROCEDURE - Nature of appeal against sex offender registration order - s 208 of the Magistrates Court Act 1930 (ACT) - civil appeal - leave required

CIVIL PROCEDURE - Appeals - appeal against sex offender registration order - tests for making of registration order - human rights considerations

Bowden v The Queen [2013] VSCA 382

DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1

DPP v Cartwright [2015] VSCA 11

House v The King [1936] HCA 40; (1936) 55 CLR 499

Kennewell v Rand [2006] ACTCA 10

Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646

Monfries v The Queen [2014] ACTCA 46

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

WBM v Chief Commissioner of Police (2010) 27 VR 469

WBM v Chief Commissioner of Police [2012] VSCA 159; (2012) 230 A Crim R 322

Case Title: Gregory John Harvey v Viktor John Znotins

**1. When the appellant appeared before the Magistrates Court, he pleaded guilty to four offences of committing an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT). The maximum penalty for such an offence is seven years' imprisonment.

2. Each offence involved the appellant standing naked in his backyard and masturbating in view of the neighbouring family. The Magistrate inferred that the appellant knew full well that others were observing him. On three occasions, a young boy was present and on one of those occasions the boy was in his mother's arms. However, the misconduct was designed to attract the attention of the boy's mother and it is not clear that the boy himself observed it.

3. The appellant was sentenced to a total period of five months and five days' imprisonment and was ordered to sign an undertaking to be of good behaviour for a period of two years from the date of his release. For the individual offences, the Magistrates Court imposed the following sentences:**

Three months' imprisonment, accumulated by one month

Three months' imprisonment, further accumulated by a month and six days

Four months' imprisonment, concurrent with the previous sentence, plus a two-year supervised good behaviour order from the date of release

**4. By committing the offences, the appellant breached a good behaviour order relating to a suspended sentence of three months' imprisonment for an act of indecency committed on 21 October 2013. In relation to the breach, the Magistrate ordered that the appellant serve that three month sentence, but made the sentence wholly concurrent with the new sentences.

5. The Magistrate made a child sex offender registration order (registration order) under s 15 of the Crimes (Child Sex Offenders) Act 2005 (ACT) (Child Sex offenders Act).**

**6. The appellant appealed on the grounds that the overall sentence was manifestly excessive and there was insufficient evidence to warrant the making of the registration order.

7. In relation to manifest excess, the appellant contended:**

(a) The Magistrate did not take the appellant's serious mental health problems into account when deciding to impose a custodial sentence rather than a community based sentence.

(b) The Magistrate placed too much emphasis on general deterrence.

**8. The appeal against sentence is a criminal appeal brought pursuant to s 208 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). Under s 214 of that Act, the Supreme Court must have regard to the evidence given in the proceedings before the Magistrates Court, and has the power to draw inferences of fact.

9. On many occasions, this Court has held that a sentence appeal under s 208 of the Magistrates Court Act is an appeal of the type discussed in House v The King [1936] HCA 40; (1936) 55 CLR 499: see, eg, Kennewell v Rand [2006] ACTCA 10 and Hawkins v Hawkins (2009) 3 ACTLR 210. The Court will intervene only if there has been an express error of law or fact, or where error is implicit because the sentence falls outside the available sentencing range.

10. Sentencing is a quintessentially discretionary exercise that involves the instinctive synthesis of many different (and often conflicting) factors in an endeavour to address many different (and often conflicting) sentencing purposes. Consequently, it is difficult for an appellant to successfully argue that a sentence is manifestly excessive or manifestly inadequate.

11. In relation to the appeal against the making of the registration order, the appellant contended that such an appeal is a criminal appeal because a registration order is founded on a criminal activity and breach of a registration order attracts criminal sanction.

12. Section 208 of the Magistrates Court Act refers to a range of Magistrate Court orders that may be appealed, including driver licence disqualification orders, but it does not refer to an appeal against a registration order. In my view, such an appeal must be treated as a civil appeal brought under Part 4.5 of the Magistrates Court Act. It requires leave under s 274 of the Magistrates Court Act.

13. The appeal against the registration order was fully argued before the question of the nature of the appeal was raised. A sex offender registration order has serious consequences. The appeal was meritorious. Leave should be granted.**

**14. The respondent did not oppose the appellant's application to adduce fresh evidence on the appeal, and the appellant was granted leave. The fresh evidence comprised orders made by the ACT Civil and Administrative Tribunal (ACAT) on 19 May 2015, appointing a guardian for the appellant and a manager of his property, and related material concerning the appellant's mental health.

15. The fresh evidence established that the appellant was a 59-year-old man who suffered from a complex bipolar affective disorder and possible cognitive impairment. He lived an isolated life in squalid conditions. He required assistance with personal hygiene and domestic chores. It was unlikely that the appellant would voluntarily address his lifestyle problems, but he usually responded to legally enforceable directions.

16. The fresh evidence provided up-to-date information regarding the appellant's mental health and living conditions, but (with the exception of the reference to possible cognitive impairment) it did not provide significant new information.**

17. The appellant's assertion that the Magistrate placed too much emphasis on general deterrence cannot be substantiated. On the contrary, her Honour found that the appellant's mental health condition "[decreased] considerations of general deterrence": see [20] below. The lenient sentences do not support an overemphasis of the sentencing purpose of general deterrence.

**18. The Magistrate received expert evidence concerning the appellant's mental health from Dr Barker. Her Honour was aware that the appellant suffered from mental health problems (including bipolar disorder and a possible personality disorder) for which he was medicated (with limited compliance). Her Honour was aware that the appellant lived an isolated lifestyle and had limited insight into his mental health problems. There was evidence before the Magistrate establishing that the appellant had been subject to psychiatric treatment orders since 2007.

Whilst there is no information currently available that reasonably indicates that a realistic connection between ... [the appellant's] illness and his index offence it is noteworthy that despite a prolonged history of convictions for indecent exposure that he has not received any further convictions since he was commenced on intramuscular Risperidone Consta in 2007. I suspect that ... [the appellant] has an underlying tendency to engage in exhibitionistic behaviour, and that the likelihood of him engaging in such behaviour is increased when he experiences a deterioration in his mental state.

20. In the course of her reasons, the Magistrate made the following observations:

I specifically take into account your mental health, and to that end the forensic mental health reports that have been prepared, and most specifically the recent report of Dr Barker. I am satisfied that you suffer from a mental illness, namely both Bipolar ones, and the Verdins principles are appropriate to consider in relation to the sentencing exercise; although I note in the report of Dr Barker that he could see no link between your offending and your mental illness. However, your mental health is still a relevant issue, and in particular it's one that decreases considerations of general deterrence.

**21. Section 33(1)(m) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) requires that, where it is relevant and known to the court, the "mental condition of the offender" must be considered in deciding how an offender should be sentenced. It is well established that the mental condition of an offender may be relevant for three reasons: it may lessen the offender's moral culpability for the offence; it may mean that a particular sentencing purpose (such as general deterrence, denunciation or protection of the public) is more or less important; and it may mean that the offender will find full-time imprisonment to be particularly onerous: Monfries v The Queen [2014] ACTCA 46 at [63]-[66]; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [54]; DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]; R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

22. It is clear from the Magistrate's remarks that she was aware of the "Verdins principles". Her Honour considered whether the appellant's mental illness lessened his moral culpability or affected the significance of a sentencing purpose such as general deterrence. Although her Honour made no express reference to the impact of imprisonment on the appellant, it was not submitted that her Honour had failed to consider that matter. A consideration of the impact of imprisonment on a mentally ill person is part of the "Verdins principles". On the appeal, it was conceded that imprisonment would not be particularly onerous for the appellant.

23. Based on Dr Barker's observations, it is arguable that the Magistrate too readily dismissed the submission that the appellant's mental condition played some part in the offending conduct and therefore informed the appellant's moral culpability.

24. However, a robust approach should be taken to ex tempore reasons delivered in the Magistrates Court. Dr Barker's evidence did not establish a substantial link between the appellant's mental illness and the offending conduct; Dr Barker merely proposed a possible indirect link. Dr Barker opined that the principal cause of the offending behaviour was "an underlying tendency to engage in exhibitionistic behaviour". Any factual error by the Magistrate was insubstantial and could not have had a significant impact on the sentences.

25. The fresh evidence did not cast a different light on the relevance of the appellant's mental condition to the sentencing exercise. For example, it did not demonstrate a direct link between the appellant's mental illness and the offending behaviour such that the appellant's moral culpability was substantially lessened, and there was no suggestion that imprisonment would be particularly burdensome for the appellant.

26. Far from imposing a sentence that was outside the available range because it was too heavy, the Magistrate imposed a lenient sentence. The maximum available penalty was seven years' imprisonment. The appellant had a long history for offences of indecent exposure and offensive behaviour. As noted above, for the most recent such offence he received a suspended sentence of three months' imprisonment. He breached the associated good behaviour order by committing these offences. In that context, the sentencing purposes of punishment, personal deterrence, denunciation and accountability assumed considerable prominence. The Magistrate referred to those purposes. A sentence of full-time imprisonment was the only appropriate sentencing option. The Magistrate recognised the need for rehabilitation and, to that end, structured the sentence so that it comprised a relatively short period of full-time imprisonment and a good behaviour order for a period of two years after release from custody.

27. Neither individually nor collectively were the sentences manifestly excessive.**

**28. The respondent applied for an order declaring that the appellant was a registrable offender for the Child Sex Offenders Act. The application was supported by evidence that, between 1980 and 2013, the appellant had committed approximately 17 offences involving indecent exposure or similar misconduct. Most offences had occurred in public places. One offence was directed towards a child victim; on 14 August 2001, the appellant approached the 13-year-old victim (with whom he was acquainted) and forcibly kissed her and pressed against her. There was a gap in offending behaviour between 2006 (when several offences were committed) and 2013 (when one offence was committed).

29. A registration order follows automatically if an offender is convicted of certain offences involving children. It does not follow automatically from a conviction for committing an act of indecency. Where an offender is convicted of an offence that is not a specified offence (such as in the present case), the sentencing court has a discretion in relation to the making of an order.

30. In this case, the Magistrate granted the respondent's application for a registration order, stating:**

I am satisfied in all circumstances noting that there were children certainly present but there certainly persons present [sic], and if this continues that other people may well be exposed to this type of conduct, that is appropriate to make an order, particularly in light of your history of engaging in this type of conduct, that application is therefore granted in the terms sought.

31. Section 6(1) of the Child Sex Offenders Act provides:

(a) require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time -

(i) to reduce the likelihood that they will reoffend; and

(ii) to facilitate the investigation and prosecution of future offences that they may commit; and

(b) prevent registrable offenders working in child-related employment; and

**32. If an offender is sentenced for offences classified as class 1 or class 2 offences under the Act then, with some exceptions, the offender automatically becomes a "registrable offender" under the Act. The offender is subject to reporting requirements and is prohibited from engaging in certain employment and other conduct. Class 1 and class 2 offences include about 72 offences against child victims or young people under the Crimes Act 1900 (ACT), Criminal Code Act 1995 (Cth), Prostitution Act 1992 (ACT), Customs Act 1901 (Cth) and any offence under a foreign law that, if it had been committed in the ACT, would have been a class 1 or class 2 offence.

33. Section 15 of the Child Sex Offenders Act applies when an offender is found guilty of an offence that is not a class 1 or class 2 offence. It provides:**

(1) If a person is found guilty of an offence that is not a class 1 or class 2 offence, the court sentencing the person for the offence may make a child sex offender registration order in relation to the person.

(2) This section is subject to the following sections:

section 16 (Court may only make order if person risk to sexual safety)
section 17 (Court may only make order with sentence)
section 18 (Court may only make order on prosecution application).

(1) The court may make a child sex offender registration order only if, after taking into account anything the court considers appropriate, the court is satisfied that the person poses a risk to the sexual safety of 1 or more people or of the community.

(2) For subsection (1), it is not necessary that the court can identify a risk to particular people, or a particular class of people.

**35. These provisions are very similar to provisions of the Sex Offenders Registration Act 2004 (Vic), with the important exception that the Victorian equivalent of s 16(1) requires that, before making a discretionary registration order, the court is "satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community": Sex Offenders Registration Act 2004 (Vic) s 11(3) (emphasis added).

36. The Victorian provisions were considered in Bowden v The Queen [2013] VSCA 382 (Bowden) and DPP v Cartwright [2015] VSCA 11 (Cartwright). In Bowden at [30]-[31], the Court of Appeal said:**

The inquiry into whether to make a registration order is a two-stage process. Because s 11(3) operates to confine the circumstances in which the power to make a registration order may be made, its requirements must first be satisfied... namely that the person has pleaded guilty to qualifying offences and that the judge is satisfied to the criminal standard that they pose the relevant risk. Second, exercising judicially the discretion reposed in it by s 11(1), the court must determine whether, in all of the relevant circumstances, to make a registration order.
The court must be satisfied that the person poses the requisite risk. Risk refers to the exposure to a chance of the harm in question occurring... For present purposes it suffices to say that a risk that a person may reoffend by committing an offence of a type described in a schedule to the Act would be a risk to the sexual safety of one or more persons or of the community.

**37. At [33], the Court of Appeal discussed the meaning of "risk" and concluded that, before making a registration order, a sentencing court must be satisfied that an offender posed a "real risk", rather than an unreal or fanciful risk. At [37], the Court said that the inquiry was directed to the future risk on release, which was to be assessed by reference to presently known facts and circumstances.

38. If satisfied that the offender posed a real risk to the sexual safety of one or more persons, the sentencing court was required to move to the second stage of the decision-making process and decide whether it should exercise the discretion that had been enlivened. This required the sentencing court to consider the magnitude and nature of the risk posed by the offender (the likelihood that the risk will materialise and the gravity of likely harm to potential victims), the purpose of the statutory scheme, and the serious consequences that a registration order would impose upon the offender (restricting personal freedom): Bowden at [40]-[42]. At [45], the Court said:**

The sentencing judge should consider whether the circumstances of the identified risk justify imposing on the offender the consequences of a registration order to achieve the purposes of the Act.

**39. In assessing the nature and magnitude of any risk, the sentencing court should have regard to any expert opinion on the subject, the circumstances of the offences, the offender's prior history and conduct since offending, and the offender's prospects of rehabilitation: Bowden at [47].

40. Distilling these observations, a court that is considering an application for a discretionary registration order should ask:**

(1) Has the prosecution established that the offender poses a real risk to the future sexual safety of one or more people in the community (whether or not they can be identified)?

(2) What is the nature and magnitude of the risk to sexual safety? In other words, what is the nature of the harm that may be caused to future victims and what is the likelihood that the risk will materialise? In considering these questions, the court will have regard to expert opinion, prospects of rehabilitation, prior criminal history and other relevant facts.

(3) Considering both the nature and magnitude of the risk to sexual safety and the significant consequences for the offender if a registration order is made, should a registration order be made to support the purposes of the Act (the reduction of sexual reoffending against children, and the protection of children from associated harm)?

**41. The Magistrate's reasons show that her Honour considered the first question. Her Honour decided that the appellant did pose a real risk to the sexual safety of people in the community. For the reason given by the Magistrate (that the appellant has a long history of similar offending), that finding was well open to her Honour.

42. However, this was not a case that obviously required the making of a registration order. Having determined that her discretion was enlivened, her Honour did not go on to consider the manner in which she should exercise her discretion.

43. The Magistrate erred in law in that her Honour failed to undertake the second stage of the two-stage decision-making process and decide whether she should exercise the discretion by making the order.**

**44. Although human rights considerations were not the subject of argument on appeal and such considerations have not influenced the outcome of the appeal, I note the following matters.

45. Section 30 of the Human Rights Act 2004 (ACT) (Human Rights Act) provides that a Territory law must be interpreted in a way that is compatible with human rights, so far as it is possible to do so consistent with the purpose of the law. Section 28 of the Human Rights Act notes that, "[h]uman rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society."

46. In the context of the Child Sex Offenders Act, the rights to privacy and freedom of movement conferred by ss 12 and 13 of the Human Rights Act may be relevant.

47. In WBM v Chief Commissioner of Police (2010) 27 VR 469, the right to privacy was discussed with reference to the Sex Offenders Registration Act 2004 (Vic). At [28] Kaye J observed:**

The reporting obligations imposed on a registrable offender by the ... [Sex Offenders Registration Act 2004 (Vic)] are relatively onerous, and they intrude into the offender's rights to privacy in a number of respects.

**However, his Honour dismissed the plaintiff's application for a declaration of inconsistency, under s 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), the Victorian equivalent of s 32 of the Human Rights Act.

48. On appeal, in WBM v Chief Commissioner of Police [2012] VSCA 159; (2012) 230 A Crim R 322, Bell AJA referred to the reporting requirements attaching to registration and agreed that the requirements curtailed the appellant's fundamental right or freedom to personal privacy: at [167]. On the other hand, his Honour observed that the inclusion in such schemes of offenders who have been sentenced for sex offences in the past was not of itself arbitrary or otherwise incompatible with human rights.

49. In Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646 at [588], Bell J, discussed the scope of the right to freedom of movement and residence in the context of the Charter of Human Rights and Responsibilities Act 2006 (Vic). His Honour said:**

It is directed to restrictions on movements which fall short of physical detention coming within the right to liberty... The fundamental value which the right expresses is freedom, which is regarded as an indispensable condition for the free development of the person and society.

**50. On an appeal from the Magistrates Court, the Supreme Court "has all the powers and duties of the court or tribunal that made the order appealed from": r 5052(1)(a) of the Court Procedures Rules 2006 (ACT).

51. Considering the matter afresh, I am satisfied that the appellant poses a risk to the future sexual safety of one or more people in the community. His record for offences of indecent exposure means that there is a real risk of future, similar behaviour. Primarily, the risk relates to indecent exposure directed towards adult women. Although the appellant's offending conduct does not usually involve physical contact, it can be very psychologically distressing for adults (let alone children) to witness sexually confronting conduct to which they have not consented. In a psychological sense, the appellant does pose a risk to the sexual safety of both adults and children. To the extent that there may also be physical risk, that risk is relatively remote. The 2001 incident involved physical contact, but in that respect it was out of character.

52. The psychological risk to children arises not because it is likely that the appellant will consciously target them with his behaviour, but because he may misconduct himself in or within view of a public place where children are present. The incident involving a 13-year-old girl occurred in 2001, now 14 years ago. In relation to that incident, there is no reason to believe that the appellant was targeting the child because of her age as well as her gender. Since 2001, the appellant has offended on numerous occasions, and the later offences have involved exhibitionism directed towards adult females, not children. It is almost inconceivable that the appellant will obtain employment of any sort, let alone employment with children, and no risk arises in that regard.

53. Based on Dr Barker's opinion, the likelihood of the appellant engaging in offensive behaviour may increase when his mental state deteriorates and, conversely, adherence to prescribed treatment may reduce the risk of recidivism. Upon his release from custody, the appellant will be subject to a two-year good behaviour order, and it is likely that he will also be subject to a guardianship order and a psychiatric treatment order for the indefinite future. In combination, these orders should provide appropriate supervision of the appellant and ensure treatment compliance, thereby significantly reducing the risk of recidivism.

54. It is unlikely that registration would serve any useful purpose. It is unlikely that it would reduce the risk of reoffending. In particular, it is unlikely that it would reduce the risk of offending against children, particularly as children are likely to be incidental (rather than intended) victims of the appellant's exhibitionistic behaviour.

55. On the other hand, a registration order would detract from the appellant's privacy and freedom of movement. Such an order would be particularly onerous for the appellant. His lifestyle is haphazard, increasing the risk of non-compliance and consequent sanction.

56. Having regard to the purposes of the Child Sex Offenders Act, the making of a registration order is not justified.

(a) The appeal against sentence is dismissed and the sentences imposed by the Magistrates Court are confirmed.

(b) The appellant is granted leave to appeal against the registration order.

(c) The appeal against the registration order is allowed and the order is set aside.

I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

(ACT), Criminal Code Act 1995(Cth)

(Child Sex Offenders) Act 2005

(Sentencing) Act 2005

Procedures Rules 2006

Human Rights and Responsibilities Act 2006

Offenders Registration Act 2004

(ACT), Criminal Code Act 1995(Cth)

(Child Sex Offenders) Act 2005

(Sentencing) Act 2005

Procedures Rules 2006

Human Rights and Responsibilities Act 2006

Offenders Registration Act 2004

Znotins v Harvey [2015] ACTSC 241

At a glance

Court

Decision date

Before

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Judgment (109 paragraphs)

Znotins v Harvey [2015] ACTSC 241 (24 August 2015)

Znotins v Harvey [2015] ACTSC 241 (24 August 2015)

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Legislation Cited (18)

Cases Cited (6)