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Supreme Court 30 January 2007

Khanna v Commissioner of Police NSW

[2007] NSWSC 17

Also reported as 168 A Crim R 530
Sexual offences
CRIMINAL LAW REGISTRATION OF CHILD SEX OFFENDERS

Citation: Khanna v Commissioner of Police NSW [2007] NSWSC 17
Court: Supreme Court of New South Wales (Equity Division)
Date: 30 January 2007
Judge(s): Brereton J

Background

The plaintiff was convicted in the County Court of Victoria in July 2004 of committing an indecent act with a child under the age of 16. He was sentenced to 12 months' imprisonment, wholly suspended for 18 months. No supervision requirement was attached to the sentence, and he was not required to enter into any bond. The sentencing judge accepted the offence was an isolated lapse and that the plaintiff's rehabilitation prospects were very good.

The plaintiff was a resident of New South Wales and had only been in Victoria briefly at the time of the offence. Critically, he had not been placed on any sex offender register in Victoria, and Victorian authorities indicated they did not intend to pursue his registration there.

In June 2006, NSW Police contacted the plaintiff and sought to register him on the NSW Child Protection Register under the Child Protection (Offenders Registration) Act 2000 (NSW) ("the NSW Registration Act"). The plaintiff commenced proceedings in the Supreme Court seeking a declaration that he was not a "registrable person" under that Act, together with an injunction preventing any entry being made in the Register in respect of him.

  • Whether a Victorian suspended sentence of imprisonment constitutes a "sentence which includes a term of imprisonment" for the purposes of s 3A of the NSW Registration Act, such that the plaintiff would be a "registrable person."
  • Whether a Victorian suspended sentence includes a requirement that the offender be "under supervision" within the meaning of s 3A(2)(b)(ii) of the NSW Registration Act.
  • Whether, even if the plaintiff was not a registrable person, discretionary grounds existed to refuse relief, particularly in light of a recent retrospective amendment to Victorian legislation.

Decision

Brereton J held that the plaintiff was not a "registrable person" under the NSW Registration Act. The central question was whether the suspended sentence fell within s 3A(2)(b)(i), which refers to sentences including "a term of imprisonment, including a term of imprisonment the subject of a periodic detention or home detention order." His Honour reasoned that this provision was directed at custodial sentences within Part 2, Division 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and was not intended to capture a term of imprisonment that had been wholly suspended.

A wholly suspended sentence, His Honour found, is not a custodial sentence in any meaningful sense. The offender serves no time in custody, and the suspension reflects a judicial determination that custody is not required. Accordingly, the Victorian suspended sentence did not satisfy s 3A(2)(b)(i).

His Honour also found that the sentence did not include any requirement that the plaintiff be under supervision, as required by s 3A(2)(b)(ii). No bond, no supervision condition, and no reporting obligation had been imposed at sentencing. The court noted that the NSW Registration Act's purpose was to balance child protection with offender rehabilitation, and that Parliament had determined that a single Class 2 offence attracting a sentence indicating no need for post-sentence supervision did not warrant the burden of registration.

On the question of discretion, the Commissioner argued that a recent retrospective legislative amendment in Victoria might eventually render the plaintiff a corresponding registrable person in New South Wales. Brereton J rejected this as a ground to withhold relief, holding that the plaintiff's current status under NSW law was clear and that the court was required to give effect to it.

Orders Made

  • Declaration that upon the proper construction of the NSW Child Protection (Offenders Registration) Act 2000 and in the events which had happened, the plaintiff was not a "registrable person" for the purposes of that Act.
  • The Commissioner of Police for NSW was restrained from making any entry in the Child Protection Register under s 19 of that Act in respect of the plaintiff.
  • The Commissioner was ordered to pay the plaintiff's costs.

Key Takeaways

  • A sentence of imprisonment that is wholly suspended does not constitute a "sentence which includes a term of imprisonment" for the purposes of s 3A(2)(b)(i) of the NSW Child Protection (Offenders Registration) Act 2000; the provision is limited to custodial sentences actually requiring the offender to be detained.
  • Where a sentence imposes no supervision condition, bond, or reporting obligation, it also does not satisfy the s 3A(2)(b)(ii) requirement of including a requirement that the offender be "under supervision."
  • The NSW Registration Act's exemption for persons convicted of a single Class 2 offence extends to those whose sentence indicates a judicial determination that post-sentence supervision is unnecessary, reflecting Parliament's intent to balance child protection with effective offender rehabilitation.
  • Potential future changes to the law in another jurisdiction, including retrospective amendments, do not constitute a discretionary basis to refuse declaratory or injunctive relief where a plaintiff's current status under NSW law is clear.
  • Under s 3A of the NSW Registration Act, the characterisation of an interstate sentence for registration purposes turns on the substantive nature of that sentence, not merely its label.

Legislation and Cases Referenced

Legislation:
- Child Protection (Offenders Registration) Act 2000 (NSW), ss 3, 3A, 3C, 4, 5, 6, 9A, 14, 19
- Child Protection (Offenders Registration) Regulations 2001 (NSW), cl 5B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 6, 7, 8, 9, 10, 11, 12, 98, 99
- Crimes Act 1900 (NSW), s 61N(1)
- Interpretation Act 1987 (NSW), ss 34(1)(b)(i), 34(2)(f)
- Sentencing Act 1991 (VIC), s 27
- Sex Offenders Registration Act 2004 (VIC), s 12
- Corrections Act 1986 (VIC), s 6C(1)
- Crimes Act 1958 (VIC), ss 45(1), 47(1)
- Migration Act 1958 (Cth), s 201(c)

Cases:
- DPP v Neisser [2006] VSC 218
- Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409
- Meng Kok Te v Minister for Immigration & Ethnic Affairs (1999) 88 FCR 264
- Regina v LRS [2001] NSWCCA 338
- Regina v Zamagias [2002] NSWCCA 17