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Court of Criminal Appeal 25 August 2020

Watson v R

[2020] NSWCCA 215

Sexual offencesPublic order & justice offences

Citation: Watson v R [2020] NSWCCA 215
Court: Court of Criminal Appeal, NSW
Date: 25 August 2020
Judges: Johnson J, Davies J, Adamson J

Background

The appellant pleaded guilty in the District Court to four counts: two State offences (contravening a Child Protection Prohibition Order and failing to comply with reporting obligations under the child protection registration regime) and two Commonwealth offences (using and transmitting child pornography material via carriage services). The sentencing judge imposed two separate aggregate sentences, one for the State offences and one for the Commonwealth offences, producing an overall term running from June 2018 to June 2021.

The difficulty emerged after sentencing. In July 2020, the NSW Attorney-General directed the annulment of earlier related convictions and the underlying Child Protection Prohibition Order (CPPO) dated 7 March 2016. That annulment revealed that the CPPO had been invalid when made, because the appellant was not at the relevant time a "registrable person" within the meaning of the applicable legislation.

Because the State offence counts on the indictment had been tried in the District Court rather than summarily, the statutory mechanism that would ordinarily have automatically voided the convictions did not apply. A Court of Criminal Appeal order was therefore required to give effect to the consequences of the invalidity.

  • Whether the convictions on Counts 1 and 2 (the State offences) were invalid as a consequence of the underlying CPPO being invalid at the time it was made
  • Whether the aggregate sentence imposed for the Commonwealth offences (Counts 3 and 4) had to be set aside as a consequence of setting aside the State offence aggregate sentence
  • Whether time for filing the appeal should be extended
  • Whether a pseudonym order should be made to protect the appellant's identity

Decision

Invalidity of the State offence convictions. The Court accepted, without opposition from the Crown, that the CPPO made on 7 March 2016 (and the interim order before it) was invalid because the appellant was not a "registrable person" as defined under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) at the time the orders were made. Since the CPPO was the legal foundation for both Count 1 (contravening the order) and Count 2 (the reporting obligations that arose by virtue of the CPPO), the convictions on those counts could not stand. The Court allowed the appeal, quashed both convictions, and set aside the associated aggregate sentence.

Consequence for the Commonwealth sentence. Setting aside the State offence aggregate sentence required the aggregate sentence for Counts 3 and 4 to be revisited. Because the two aggregate sentences had been structured together as a sequenced whole, the Court could not leave the Commonwealth sentence undisturbed. Leave to appeal against that sentence was granted and the sentence was quashed, with Counts 3 and 4 remitted to the District Court for resentencing.

Extension of time. The Court extended time for filing the appeal to 5 August 2020, accepting that the annulment of the CPPO in July 2020 provided sufficient reason for the delay. The Crown did not oppose the extension.

Pseudonym order refused. The Court declined to make a pseudonym order, noting that the appellant's former name had not been referred to in the proceedings and that section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) already prohibited publication of the appellant's name in connection with offences committed when she was a child.

Orders Made

  • Time for filing the appeal and the application for leave to appeal extended to 5 August 2020
  • Appeal against convictions for Counts 1 and 2 allowed; those convictions quashed and the aggregate sentence for those counts set aside
  • Leave to appeal against the aggregate sentence for Counts 3 and 4 granted
  • Appeal against sentence for Counts 3 and 4 allowed; that aggregate sentence quashed
  • Counts 3 and 4 remitted to the District Court of NSW for resentencing (pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW))
  • Bail dispensed with in respect of Counts 3 and 4 pursuant to s 10 of the Bail Act 2013 (NSW), noting the matter was listed for a sentence hearing on 27 August 2020

Key Takeaways

  • A conviction for contravening a Child Protection Prohibition Order cannot stand where the underlying order was itself invalid at the time it was made, because the prohibition that the accused is said to have breached never had legal force.
  • Under s 10 of the Crimes (Appeal and Review) Act 2001 (NSW), annulment of a conviction in the Local Court automatically voids connected sentences and preserves unrelated convictions. That provision does not extend to convictions recorded on indictment in the District Court, where a Court of Criminal Appeal order is required to achieve the same result.
  • Where two aggregate sentences are structured in sequence and the first is set aside, the second aggregate sentence will ordinarily need to be quashed and remitted for resentencing, because the overall sentencing construct cannot remain intact.
  • Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits publication of a person's name in connection with offences committed when that person was a child, which the Court of Criminal Appeal treated as providing meaningful protection without the need for a separate pseudonym order.
  • The Crown's concession that the appeal should be allowed and the appellant resentenced resolved the substantive dispute, leaving the Court to address the procedural mechanics of giving effect to the invalidity of the CPPO and the downstream consequences for sentencing.

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), ss 7, 13
- Child Protection (Offenders Registration) Act 2000 (NSW), ss 3A, 17, 20A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 7, 12
- Crimes (Appeal and Review) Act 2001 (NSW), s 10
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Code (Cth), s 474.19
- Crimes Act 1914 (Cth), s 20AB
- Bail Act 2013 (NSW), s 10
- Judiciary Act 1903 (Cth), s 68
- Sentencing Act 1995 (NT), s 52

Cases
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556
- Kannis v R [2020] NSWCCA 79
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159