Taylor v Commissioner of Police NSW

WARD P: I agree with Griffiths AJA.

ADAMSON JA: I agree with Griffiths AJA.

GRIFFITHS AJA: Mr Taylor seeks leave to appeal from the orders of Wright J, who, on 12 July 2024, dismissed his application for judicial review of separate decisions of the second respondent, the District Court of New South Wales (which filed a submitting appearance), and the first respondent, the NSW Commissioner of Police (Taylor v Commissioner of Police of NSW [2024] NSWSC 839 (PJ)).

The facts can be shortly stated. On 11 October 2023, Mr Taylor was convicted by Jeffreys DCJ of using a carriage service to transmit communications which contained indecent material to a recipient whom he believed to be under 16 years of age, a federal offence under s 474.27A(1) of the Criminal Code (Cth). Pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth), Jeffreys DCJ, without passing sentence, ordered that Mr Taylor be released upon giving security of $500 on condition that he be of good behaviour for two years. Later that day, a Registrar of the District Court issued and served on Mr Taylor a notice under s 4 of the Child Protection (Offenders Registration) Act 2000 (NSW) (CPOR Act). Such a notice is required to be given as soon as practicable after a “registrable person is sentenced” (s 4(1)). Within the next seven days, a delegate of the Commissioner entered Mr Taylor’s details on the Child Protection Register. Under s 19(1) of the CPOR Act, the Commissioner is required to maintain the Child Protection Register, and subs (2) provides that it “is to” contain various information in respect of each “registrable person”.

Mr Taylor’s argument below, effectively reagitated on appeal, is that the decisions of the District Court to issue a notice to him and of the Commissioner to include him on the Child Protection Register were in error because he was not a “registrable person”. That term is defined by s 3A of the CPOR Act as follows (emphasis added):

It is not controversial that Mr Taylor has been convicted of a “registrable offence”, an offence under s 474.27A being a “Class 2 offence” (see CPOR Act, s 3). The sole issue is whether the orders made by Jeffreys DCJ under s 20(1)(a) of the Crimes Act 1914 mean that Mr Taylor has, for the purpose of s 3A(1), been “sentenced” in respect of that registrable offence. That is a matter of statutory construction.

Mr Taylor requires leave to appeal to this Court (Supreme Court Act 1970 (NSW), s 101(2)(r)). The application for leave was filed late but consent orders were made by the Registrar on 24 October 2024 granting an extension of time. Although contested by the Commissioner, it is appropriate that leave to appeal be granted: the matter raises an important question as to the proper construction of s 3A(1) of the CPOR Act, with implications for the Commissioner’s ability to register persons on the Child Protection Register who have been convicted of federal offences and dealt with under s 20(1) of the Crimes Act 1914 (see, eg, Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [34] (Bell P) and [141] (Leeming JA)).

I turn now to address the statutory scheme and the primary judge’s approach to the construction of s 3A of the CPOR Act.

Part 1B of the Crimes Act 1914 provides for the “sentencing, imprisonment and release of federal offenders”, which description includes the appellant. Subdivision 5D, headed “Discharge without conviction, conditional release and sentencing alternatives”, empowers a court to make various orders in respect of a federal offender instead of imposing a term of imprisonment. Most relevant are the orders which can be made under ss 19B and 20. The former provides for the discharge of a federal offender without proceeding to conviction, with or without the imposition of conditions such as that the offender be of good behaviour for a certain period. In contrast, s 20 provides for the conditional release of offenders who have been convicted (as was the appellant). Relevantly, it provides:

As noted above, the appellant was convicted of an offence under s 474.27A(1) of the Criminal Code (Cth) and Jeffreys DCJ made orders under s 20(1)(a) for his conditional release. In seeking to argue that, for the purposes of s 3A(1) of the CPOR Act, he was not “sentenced” for any offence, the appellant emphasises that an order under s 20(1)(a) is made “without passing sentence”, with the imposition of a “sentence” separately provided for in s 20(1)(b).

“Sentence” is non-exhaustively defined in s 3 of the CPOR Act as follows:

Each of pars (a)-(d) of that definition relates to New South Wales legislation and is therefore only relevant by analogy. On the other hand, par (e) is capable of direct application, noting that the Commonwealth falls within the meaning of a “foreign jurisdiction” for the purposes of the CPOR Act (see s 3).

The primary judge observed at PJ[31] that par (e) brings three outcomes of federal criminal proceedings within the statutory definition of “sentence”, being any “sentence”, “equivalent order” or “equivalent … undertaking” imposed under a Commonwealth law. Because the use of “sentence” in par (e) must be narrower than the statutory definition of “sentence”, lest the reference to an equivalent “order” or “undertaking” be mere surplusage, his Honour considered that “sentence” as used in par (e) refers to “the ordinary meaning of that word in the context of the criminal law”: namely, “an order that definitively disposes of the consequences of conviction or a definitive decision on the punishment or absence of it which is to be the consequence of conviction” (PJ[32]-[33], citing R v Warfield (1994) 34 NSWLR 200 at 205-206, in turn citing Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 304 and 307; [1977] HCA 44). His Honour then noted that the orders made by Jeffreys DCJ under s 20(1)(a) would not meet that common law definition because they may “lack the quality of definitiveness” (PJ[36]).

Instead, the primary judge held that an order under s 20(1)(a) falls within the scope of the words “equivalent order” in par (e). His Honour reasoned at PJ[38] as follows (emphasis added):

Finally, it was necessary for the primary judge to consider whether the appellant fell within the exception in s 3A(2)(a). That depended on whether an order under s 20(1)(a) of the Crimes Act 1914 was “an equivalent order” to one made under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act). His Honour considered it did not: s 10 of the CSP Act provided for the making of orders “without proceeding to conviction” and therefore was more analogous to s 19B of the Crimes Act 1914 (see above at [9]). Section 20(1)(a) operates in a similar fashion to s 9(1)(a) of the CSP Act, which permits a court to make conditional release orders after convicting an offender. His Honour considered it significant that, under par (c) of the statutory definition of “sentence”, an order under s 10A of the CSP Act (which empowers a court to dispose of proceedings without further penalty where a person is convicted) would be captured by s 3A(1), observing at PJ[50]:

The appellant takes issue with the primary judge’s conclusion at PJ[38]ff that an order under s 20(1)(a) is a “sentence” because it is an order equivalent to a “sentence” within the meaning of par (e) of the statutory definition. He contends that an order made under s 20(1)(a) is conditional – here, it was conditional upon his good behaviour – and therefore lacks the necessary quality of finality to be considered equivalent to a sentence.

The premise of that argument is flawed. The relevant equivalence contemplated by par (e) is not between a “sentence”, on the one hand, and an “order” or “undertaking” on the other. What the “order” or “undertaking” must be “equivalent” to is an order or undertaking capable of being imposed under NSW legislation which would fall within the extended statutory definition of “sentence”, four examples of which are provided in pars (a)-(d). It should be emphasised that these are only examples and that the definition in s 3 is not exhaustive.

The definitions of “Class 1 offence” and “Class 2 offence” in s 3 of the CPOR Act include offences under both state legislation such as the Crimes Act 1900 (NSW) and federal legislation such as the Criminal Code (Cth). Any Class 1 or Class 2 offence will be a “registrable offence”, regardless of whether it is a state or federal offence. It would therefore be expected that whether a particular type of order or undertaking constitutes a “sentence” for the purposes of determining whether an offender is a “registrable person” would not vary depending on the jurisdiction of the offence; rather it would turn on the true nature or character, as a matter of substance, of the order or undertaking. The plain legislative intention in including par (e) in the extended statutory definition of “sentence” is to ensure uniformity between the types of orders or undertakings which will, for the purposes of s 3A(1) of the CPOR Act, be deemed a “sentence”.

The central question is whether an order under s 20(1)(a) is “equivalent” to an order or undertaking identified in pars (a)-(d) of the statutory definition of “sentence”, noting again that the definition is non-exhaustive and may therefore extend to types of orders or undertakings not specifically identified but sufficiently similar to the examples identified.

As the Commissioner pointed out, the appellant’s approach involved an invitation for the Court to construe s 3 of CPOR Act, a definitional provision, as though it were a substantive provision. This is contrary to the well-known observations of McHugh J in Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [84] and [103] which, for convenience, are now relevantly extracted (footnotes omitted):

The appellant’s alternative contention is that none of pars (a)-(d) can be considered equivalent to an order under s 20(1)(a). Moreover, in his written submissions, the appellant describes a s 20(1)(a) order as being “at the lower end of the hierarchy of options for dealing with the conviction of a sex offence”. He contends that the CPOR Act does not “automatically require all offenders charged or found guilty of a registrable offence to be entered onto the register”, citing the exception in s 3A(2)(a) where an offender is dealt with under s 10 of the CSP Act.

These submissions fail to engage with the primary judge’s analysis, particularly at PJ[42]-[53], as to the analogies between the alternative sentencing regime under ss 9, 10 and 10A of the CSP Act and ss 19B and 20 of the Crimes Act 1914. The effect of that analysis can be shortly stated. Under s 10A of the CSP Act, a court can convict a person without ordering any further penalty. A person dealt with in this manner, having been convicted of a “registrable offence”, will be a “registrable person” because of par (c) of the statutory definition of “sentence”. Naturally, it would follow that where a person is convicted and subject to a conditional release order under s 9(1)(a) of the CSP Act, that person would also be a “registrable person” under the CPOR Act, despite a s 9(1)(a) order not being explicitly referred to in the statutory definition of “sentence”.

On the other hand, due to the exception in s 3A(2)(a), where a person is subject to a conditional release order but the court does not proceed to conviction, they will not be a “registrable person” under the CPOR Act.

The following ‘hierarchy’ of outcomes is thus established in respect of a person found guilty of a registrable offence:

A similar regime is established by the Crimes Act 1914. In particular, s 19B provides for the discharge of offenders without proceeding to conviction, and with or without the imposition of conditions. Although unnecessary to decide here, an order made under this section would seem to be “equivalent” to an order made under s 10 of the CSP Act, meaning such an offender would not be a “registrable person” under the CPOR Act.

Conversely, s 20(1)(a) provides for the conditional release of convicted offenders and thus operates in a substantively similar manner to s 9(1)(a) of the CSP Act. It follows that such an order would amount to a “sentence” for the purposes of the CPOR Act because it is an “equivalent order or undertaking” to a conditional release order made under s 9(1)(a) of the CSP Act, which order for the reasons explained at [24] above falls within the extended definition of “sentence”.

Finally, there is another reason why the appellant’s construction should not be accepted. As the Commissioner correctly pointed out, its acceptance would defeat the protective objects of the CPOR Act because offenders convicted with no penalty under s 10A of the CSP Act would be registrable persons within the meaning of s 3A, but offenders who have been convicted and placed on a conditional release order under s 9(1)(a) of CSP Act (which is more serious than a s 10A order) would not. I respectfully agree with Wright J’s observation at PJ[50] that this outcome would be “incongruous”.

For these reasons I propose the following orders: