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Court of Criminal Appeal 21 June 2019

CJE26 v Regina

[2019] NSWCCA 139

Sexual offences
CRIME APPEAL AND REVIEW APPLICATION DISMISSED

Citation: CJE26 v Regina [2019] NSWCCA 139
Court: Court of Criminal Appeal
Date: 21 June 2019
Judges: Bathurst CJ; Beech-Jones J; N Adams J

Background

The applicant was convicted in the District Court of New South Wales in 2006 of committing an act of indecency on a child under the age of ten years, an offence under former s 61O(2) of the Crimes Act 1900. He was sentenced to two years' imprisonment with a non-parole period of thirteen months. Because that offence involved sexual touching or a sexual act against a child and carried a maximum penalty exceeding twelve months' imprisonment, it was a class 2 offence under the Child Protection Offenders Registration Act 2000 (the Act). His conviction therefore automatically triggered inclusion on the Child Protection Register and ongoing reporting obligations under the Act.

In February 2019, approximately fourteen years after the offence, the applicant filed a notice seeking an extension of time to appeal. He represented himself. His stated purpose was not to challenge his conviction or sentence but to secure removal from the Child Protection Register, on the basis that he believed the reporting obligations were only supposed to last ten years and that period had now passed.

The respondent (the Crown) argued that the Court of Criminal Appeal had no jurisdiction to entertain the application, and that it should be dismissed as incompetent.

  • Whether the Court of Criminal Appeal has jurisdiction under the Criminal Appeal Act 1912 to hear an appeal against inclusion on the Child Protection Register and the imposition of reporting obligations that arise automatically from a conviction for a class 1 or class 2 offence.
  • Whether inclusion on the Register or the imposition of reporting obligations constitutes a "conviction" or "sentence" for the purposes of the Criminal Appeal Act 1912.
  • Whether s 3D of the Act, which allows a court to make a child protection registration order in other circumstances, was relevant to the applicant's situation.

Decision

Beech-Jones J, with whom Bathurst CJ and N Adams J agreed, held that the Court of Criminal Appeal lacked jurisdiction to hear the application. The Court's jurisdiction is principally defined by the Criminal Appeal Act 1912, and the relevant provision, s 5, permits appeals against convictions and, with leave, sentences. Inclusion on the Child Protection Register and the imposition of reporting obligations are neither a conviction nor a sentence.

These consequences follow automatically by operation of law from the applicant's conviction for a class 2 offence under s 3A of the Act. They are not discrete orders made by a court that could independently be the subject of an appeal. Beech-Jones J noted that such matters could only be challenged in the context of an appeal from the underlying conviction or sentence itself.

The one relevant exception to this general position is that the Criminal Appeal Act extends the definition of "sentence" to include orders made under s 3D of the Act. Section 3D allows a court to order reporting obligations against a person convicted of an offence that is not a class 1 or class 2 offence. Because the applicant was convicted of a class 2 offence, his inclusion on the Register arose under s 3A and not from any s 3D order. That exception was therefore inapplicable.

The Court noted at the hearing that, while this application was being dismissed for want of jurisdiction, the applicant retained the ability to separately seek an extension of time to appeal his underlying conviction, if otherwise entitled to do so.

Orders Made

  • The application was dismissed as incompetent.

Key Takeaways

  • Automatic inclusion on the Child Protection Register following a conviction for a class 1 or class 2 offence under the Child Protection Offenders Registration Act 2000 is not itself a conviction or sentence and cannot independently be appealed to the Court of Criminal Appeal under the Criminal Appeal Act 1912.
  • Under s 3A of the Act, registration and reporting obligations arise by operation of law from the conviction itself, without any separate court order being required.
  • The extended definition of "sentence" in s 2 of the Criminal Appeal Act applies only to orders made by a court under s 3D of the Act, which concerns persons convicted of offences that are not class 1 or class 2 offences. Where registration flows automatically from the conviction, that extended definition does not assist an appellant.
  • In dismissing the application as incompetent, the Court confirmed that challenges to registration consequences must be raised within any appeal from the underlying conviction or sentence, not through a freestanding application.
  • Dismissal for want of jurisdiction does not extinguish a person's right to separately seek an extension of time to appeal their conviction, provided they are otherwise entitled to do so.

Legislation and Cases Referenced

Legislation:
- Child Protection Offenders Registration Act 2000 (NSW), ss 3, 3A, 3D, 10, 14A, 15, 19
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2)
- Criminal Appeal Act 1912 (NSW), ss 2, 5

Cases cited: No cases were cited in the judgment.