Watson v R

1. [1]

   JOHNSON J: I joined in the making of orders at the conclusion of the hearing on 24 August 2020 for the reasons given by Adamson J with which I fully agree.

2. [2]

   DAVIES J: The reasons set out by Adamson J, which I have had the benefit of reading, are my reasons for joining in the orders of the Court.

3. [3]

   ADAMSON J: At the conclusion of the hearing of the application on 24 August 2020, the Court made the orders which are set out at the conclusion of these reasons. What follows are my reasons for joining in the orders of the Court.

4. [4]

   Jessica Watson (the applicant) seeks an extension of time to appeal against her conviction on 18 December 2019 on counts 1 and 2 on an indictment dated 8 November 2019 and to apply for leave to appeal against an aggregate sentence imposed on her on that day by Mahony SC DCJ. The Crown does not oppose the grant of leave and accepts that the appeal should be allowed and the applicant re-sentenced, either by this Court or by the Court below.

5. [5]

   The sole substantive ground of appeal is that the convictions for counts 1 and 2 on the indictment dated 8 November 2019 are invalid. As this matter involves a question of law alone, leave to appeal is not required: s 5(1)(a) of the Criminal Appeal Act 1912 (NSW).

6. [6]

   The indictment charged the applicant with four offences. Counts 1 and 2 were State offences. Counts 3 and 4 were Commonwealth offences.

7. [7]

   Count 1 charged that the applicant had contravened a Child Protection Prohibition Order (CPPO) without reasonable excuse on 18 occasions between about 10 March 2016 and 16 June 2018 contrary to s 13(1) of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) (the Prohibition Orders Act). Count 2 charged that between 11 March 2016 and 20 April 2018 she had failed to comply with the reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (the Registration Act) without reasonable excuse by failing to disclose 8 internet and social media accounts “contrary to s 17(1) of the Child Protection (Offenders Registration Orders) Act 2004 (NSW)” [sic, the Registration Act].

8. [8]

   Count 3 charged that between 2 November 2015 and about 14 December 2017, the applicant had used three carriage services to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth) (the Code). Count 4 charged that between 2 October 2016 and about 15 March 2017 the applicant caused child pornographic material to be transmitted using a carriage service contrary to s 474.19(1)(a)(iii) of the Code.

9. [9]

   On 26 November 2019, the applicant entered pleas of guilty to each of the four counts. The sentence hearing took place on that day. The Crown tendered an agreed statement of facts for the purposes of sentencing. The agreed facts included the following:

10. [10]

    At the conclusion of the hearing on 26 November 2019, his Honour reserved his decision. On 18 December 2019, his Honour made orders for conviction, delivered remarks on sentence and imposed the sentences.

11. [11]

    The sentences indicated and imposed are set out in the table below:

12. [12]

    The effect of the two aggregate sentences imposed was that the overall sentence commenced on 13 June 2018 and expired on 12 June 2021. The non-parole period for the first aggregate sentence expired on 12 September 2019. The applicant remained in custody after that day serving the second aggregate sentence and was released pursuant to a recognisance release order made in respect of counts 3 and 4 on 12 March 2020.

13. [13]

    On 8 July 2020 the applicant’s parole was revoked and she was taken back into custody.

14. [14]

    On 14 July 2020 four convictions of Contravene Protection Prohibition Order dating back to October 2017 and the CPPO dated 7 March 2016 were annulled by direction of the NSW Attorney-General. On that day, the Local Court at Queanbeyan marked these convictions withdrawn and dismissed. The reason for the annulment appears from the affidavit of Sheradyn Simmonds sworn 20 August 2020 which was read without objection on the application.

15. [15]

    This Court was informed by counsel for the applicant that the only reason the convictions for counts 1 and 2 were not annulled was that they were tried on indictment rather than summarily. The application for extension of time for appeal and leave to appeal was filed on 5 August 2020. The annulment of these convictions provides a sufficient reason for the time for the filing of the application to be extended.

16. [16]

    Had counts 1 and 2 been tried summarily, s 10 of the Crimes (Appeal and Review) Act 2001 (NSW) would have applied. In that event, the conviction and sentence would have ceased to have effect and any enforcement action previously taken would have been taken to have been reversed: s 10(1). Further, the conviction for counts 3 and 4 would have been expressly preserved: s 10(2). However, s 10 has no operation in the present case because the orders for conviction were made in the District Court on indictment. In the present case, an order of this Court is required to set aside the convictions and the sentence.

17. [17]

    The documents annexed to Ms Simmonds’ affidavit established that an interim CPPO made on 24 February 2016 and the CPPO made on 7 March 2016 were invalid at the time they were made because the applicant was not, at the relevant time, a “registrable person” within the meaning of the Prohibition Orders Act, which in turn incorporated the definition in s 3A of the Registration Act.

18. [18]

    Section 3A(1) of the Registration Act defined registrable person as being a person whom a court has at any time sentenced in respect of a registrable offence. A “registrable offence” was defined to include “an offence that involves an act of indecency against or in respect of a child … that is punishable by imprisonment for 12 months or more.” The applicant fulfilled these criteria as, on 25 May 2001, she had been sentenced for five offences of aggravated indecent assault committed on 25 June 2000 contrary to s 61M (now repealed) of the Crimes Act 1900 (NSW), the maximum penalty for which was 7 years’ imprisonment.

19. [19]

    However, s 3A(2) of the Registration Act exempted a person from the definition if the person, relevantly, committed a single offence (or offences of the same kind arising from the same incident) involving an act of indecency when the person was a child (s 3A(2)(c)(i)) or if the person was found guilty of a registrable offence before 15 October 2001 (s 3A(2)(d)). The applicant fulfilled both criteria. The offences of which she was convicted on 25 May 2001 involved acts of indecency and were committed when she was 13 years old. Further, she was found guilty before 15 October 2001.

20. [20]

    It was common ground that, as a consequence of these matters, the applicant was not, as at 7 March 2016, a registrable person. Accordingly, the Local Court had no power to make the CPPO in respect of her. As the order was invalid, the Crown could not establish that she had contravened the order between 10 March 2016 and 16 June 2018, as alleged in the indictment. Thus, the conviction on count 1 constitutes a miscarriage of justice and must be set aside.

21. [21]

    Section 20A of the Registration Act as in force at the relevant time imposed reporting requirements on registrable persons against whom a CPPO has been made. Count 2 charged the applicant with failing to comply with those reporting requirements. For the reasons given above, as the applicant was not a registrable person and no CPPO had validly been made against her, she was not required to report. Thus, the applicant’s conviction on count 2 must be set aside.

22. [22]

    It was common ground that this Court ought quash the convictions and set aside the sentence imposed for counts 1 and 2.

23. [23]

    The further question arises as to the effect of the setting aside of the sentence for counts 1 and 2 on the aggregate sentence imposed for counts 3 and 4. Although two aggregate sentences were imposed, they cannot be treated independently because the sentencing judge is to be taken to have determined an appropriate sentence for each offence before considering cumulation and concurrence as questions of totality: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45]. Thus, the aggregate sentence for counts 3 and 4 must also be set aside and the applicant re-sentenced for those counts.

24. [24]

    It is open to this Court to re-sentence the applicant: ss 6(3) and 7(1A) of the Criminal Appeal Act. However, there are several reasons why it is more appropriate in the circumstances of the present case for Mahony SC DCJ, the original sentencing judge, to perform this task. First, the applicant is at liberty which makes the re-sentencing less pressing than were she in custody. Secondly, there will be little delay as the parties took the liberty of tentatively listing the matter before his Honour on 27 August 2020, in the event that this Court considered that the matter should be remitted for sentence. Thirdly, the matter has been before his Honour on no fewer than four occasions, including twice concerning bail. Fourthly, an interim CPPO is presently in force in relation to the applicant, which means that she is on a form of conditional liberty pending the re-sentence. Fifthly, if the re-sentencing task is performed by the sentencing judge, the applicant and the Crown will have all the usual rights to seek leave to appeal; whereas, if this Court were to perform the exercise, the parties’ rights of appeal would be substantially curtailed.

25. [25]

    For the reasons given above, the correctness of the aggregate sentence imposed by the sentencing judge for counts 3 and 4 does not arise for this Court’s consideration. It is sufficient to note that it was open to the sentencing judge, and will be open to his Honour on re-sentence, to impose an aggregate sentence for counts 3 and 4. However, the power to impose an aggregate sentence for Commonwealth offences does not derive from s 20AB of the Crimes Act 1914 (Cth), as his Honour considered. The power to impose an aggregate sentence for a Commonwealth offence committed in New South Wales derives from s 68 of the Judiciary Act 1903 (Cth), which picks up s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556 (Beattie) at [145]-[146] (Price J, Basten JA and Walton J agreeing). This consequence flows from Putland v The Queen (2014) 218 CLR 174; [2014] HCA 8 in which the High Court held that s 68 of the Judiciary Act picked up s 52 of the Sentencing Act 1995 (NT), which provided for aggregate sentences in respect of offences committed against laws of the Northern Territory, and applied it to Commonwealth offences committed in the Northern Territory. The power to impose an aggregate sentence for Commonwealth offences was confirmed by this Court in Kannis v R [2020] NSWCCA 79 at [10]-[11] (Johnson J, N Adams and Ierace JJ agreeing).

26. [26]

    Ms Healey, who appeared on behalf of the applicant, sought a pseudonym order in respect of the applicant’s name as the offences which were committed when the applicant was a child have been referred to. While Ms Healey accepted that no such application had been made before the sentencing judge and that the applicant has changed gender and name since the offences were committed, she contended that it would be appropriate given the several records in existence in which the applicant’s new and old names are linked.

27. [27]

    I am not persuaded that a pseudonym order is either necessary or appropriate. The applicant is sufficiently protected by the circumstance that her former name has not been referred to, and also by s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) which prohibits the publication of the name of a person if the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed. Although counts 3 and 4 were committed by the applicant as an adult, the publication of her name in connection with the offences of which she was convicted as a child is prohibited by s 15A.

Orders

1. [28]

   The Court made the following orders on 24 August 2020:

   1. (1)

      Extend the time for filing of the appeal and the application for leave to appeal to 5 August 2020.

   2. (2)

      Allow the appeal against the convictions for Counts 1 and 2.

   3. (3)

      Quash the convictions for Counts 1 and 2 and set aside the aggregate sentence imposed for those offences.

   4. (4)

      Grant leave to appeal against the aggregate sentence for Counts 3 and 4.

   5. (5)

      Allow the appeal against sentence for Counts 3 and 4.

   6. (6)

      Quash the aggregate sentence for Counts 3 and 4.

   7. (7)

      Pursuant to s 12(2) Criminal Appeal Act 1912, remit Counts 3 and 4 to the District Court of New South Wales for sentence. The Court notes that the matter has been listed before his Honour Judge Mahony SC at 10.00 am on 27 August 2020 for a sentence hearing with respect to Counts 3 and 4.

   8. (8)

      The Court dispenses with bail with respect to Count 3 and 4 pursuant to s 10 Bail Act 2013. In determining to dispense with bail with respect to Counts 3 and 4, the Court notes that Counts 3 and 4 will be next before the District Court on 27 August 2020 and that there is a protective regime in place under s 7 Child Protection (Offenders Prohibition Orders) Act 2014 which is on foot until those matters are next before the Parramatta Local Court on 28 August 2020.

   9. (9)

      The Court will give written reasons as soon as practicable.