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District Court 29 May 2020

R v DW (No 2)

[2020] NSWDC 462

Sexual offences
CHILD OFFENDER EXTENSIVE DELAY REHABILITATION NON CUSTODIAL SENTENCE OFFENDER DECLARED A NON

Citation: R v DW (No 2) [2020] NSWDC 462
Court: District Court of New South Wales
Date: 29 May 2020
Judge: Sutherland SC DCJ

Background

The offender pleaded guilty to three counts of sexual intercourse with children, committed in 1991 when he was 15 years old. The victims were two young girls. The matter came back before the court on 29 May 2020 as a follow-up to the primary sentencing judgment delivered on 11 May 2020.

At the original sentencing, the court imposed Community Correction Orders but failed to address whether the offender should be placed on the child sex offender register under the Child Protection (Offenders Registration) Act 2000 (NSW). Without a specific order to the contrary, the convictions would automatically make the offender a "registrable person" subject to that scheme.

The court reconvened under the statutory "slip rule" in s 43 of the Crimes (Sentencing Procedure) Act 1999 to correct this omission by determining whether a declaration of non-registrable status was appropriate.

  • Whether the court retained jurisdiction to reopen proceedings under s 43 of the Crimes (Sentencing Procedure) Act 1999 to address an omission in the original sentence.
  • Whether the offender should be declared a non-registrable person under s 3C(1) of the Child Protection (Offenders Registration) Act 2000, given the circumstances of the offending and the offender's subsequent history.

Decision

The court had no difficulty finding jurisdiction to reopen the proceedings under s 43 of the Crimes (Sentencing Procedure) Act 1999. The failure to make an order regarding registration constituted a failure to impose a penalty required or contemplated by law, and the Crown raised no objection to the matter proceeding.

On the substantive question of registration, Sutherland SC DCJ examined the legislative history of the Child Protection (Offenders Registration) Act 2000, noting it arose from the Wood Royal Commission's findings about the recidivist nature of paedophile offending. However, the court found that the legislative scheme contemplates exceptions, particularly under s 3C, where the offender's age at the time of offending, the ages of the victims, and the likelihood of reoffending are all relevant.

The court was not merely unpersuaded that the offender posed a danger to children. It was positively satisfied that he did not. Since committing the offences at 15, the offender had married, raised three children, and built an unblemished record over nearly three decades. Glowing character references, including one from the wife of a police officer and another from a referee who described ongoing involvement with the offender's family, supported that conclusion.

The court acknowledged that absolute certainty about future conduct is never possible but found the risk of reoffending to be less than negligible. The primary motivations for the non-registration declaration were the offender's clearly demonstrated rehabilitation, impeccable post-offence character, absence of any further offending since age 15, and his constructive involvement with children in his personal and community life.

Orders Made

  • The court declared, pursuant to s 3C(1) of the Child Protection (Offenders Registration) Act 2000 (NSW), that the offender is not to be treated as a registrable person for the purposes of that Act in respect of the offences for which he was convicted and sentenced on 11 May 2020.

Key Takeaways

  • Under s 43 of the Crimes (Sentencing Procedure) Act 1999, a court may reopen sentencing proceedings to correct an omission where it failed to make an order required or contemplated by law, including orders relating to the sex offender register.
  • Section 3C(1) of the Child Protection (Offenders Registration) Act 2000 provides a mechanism for a court to declare that an offender is not to be treated as a registrable person, with relevant considerations including the offender's age at the time of offending and the likelihood of further registrable offences.
  • Demonstrated rehabilitation over an extended period, combined with an absence of any further offending and strong character evidence, can be sufficient to satisfy the statutory threshold for a non-registration declaration.
  • The District Court confirmed that the purpose of the registration scheme, protecting children from recidivist offenders, does not require automatic registration in every case, particularly where offending occurred in adolescence and the individual has shown sustained, positive change over decades.
  • Previous District Court and Supreme Court decisions on non-registration declarations (including The Queen v RI [2019] NSWDC 129 and Khanna v The Commissioner of Police [2007] NSWSC 17) provided useful, if distinguishable, guidance on the approach to the legislation.

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW), especially s 3C
- Crimes (Sentencing Procedure) Act 1999 (NSW), especially s 43

Cases
- Khanna v The Commissioner of Police [2007] NSWSC 17 (Brereton J)
- The Queen v RI [2019] NSWDC 129 (Lerve DCJ)