Citation: PATERSON v DPP [2021] NSWDC 474
Court: District Court of New South Wales
Date: 21 September 2021
Judge(s): Lerve DCJ
Background
The appellant was a registrable person under the Child Protection (Offender's Registration) Act 2000, having been convicted of multiple child-related and telecommunications offences over a number of years. His criminal history included 21 counts of using a carriage service to menace, harass or offend, convictions for grooming children for unlawful sexual activity, and multiple breaches of reporting obligations. The appellant had a documented mild to moderate intellectual disability, which a court had previously found contributed causally to his offending.
On 24 May 2021, the Local Court at Wagga Wagga made orders under section 5(1) of the Child Protection (Offender's Prohibition Orders) Act 2004. The appellant did not contest orders 3, 4 and 5, but appealed against orders 1 and 2, arguing they were too broadly framed and created uncertainty about what conduct was actually prohibited.
The appeal was heard in the District Court. The central dispute was not whether any prohibition order should be made, but whether orders 1 and 2 as drafted were appropriately confined.
Legal Issues
- Whether the appellant posed a risk to the sexual safety of children generally, such that the threshold in section 5(1) of the Child Protection (Offender's Prohibition Orders) Act 2004 was satisfied on the balance of probabilities
- Whether orders 1 and 2 as made by the Local Court were too broadly framed, and if so, whether they could be reformulated to address identified deficiencies
- How the criteria in section 5(3) of the Act applied to the appellant's circumstances, including the seriousness of his total criminal record, the pattern of his conduct, and his intellectual disability
Decision
Threshold risk finding
The court was satisfied on the balance of probabilities that there was reasonable cause to believe that, having regard to the nature and pattern of the appellant's conduct, he posed a risk to the sexual safety of children generally (at [80]). The court noted that section 5(1)(a) uses the word "risk" without qualification, and the threshold does not require proof of a heightened or imminent risk (at [14]). The court also found that the making of an order under section 5 would reduce that risk (at [80]).
Assessment of the appellant's offending history
The court undertook a detailed assessment of the seriousness of the appellant's convictions as required by section 5(3). The first matter, involving sexually explicit communications directed at a 14-year-old girl over approximately one month, was assessed as at the upper end of the mid-range of seriousness (at [22]). Between September 2012 and January 2013, the appellant sent a combined total of 29,283 calls and text messages using at least four phone numbers across 21 sequences of offending (at [54]). The court found this history, including multiple breaches of conditional liberty and reporting obligations, was serious and directly relevant to the risk assessment (at [66]).
Intellectual disability
The court acknowledged that the appellant's mild to moderate intellectual disability contributed to his offending behaviour, consistent with findings made at the earlier sentencing (at [25]). However, the court noted there was an irresistible inference that the appellant knew his 2019 conduct was wrong, given he had deliberately presented himself as a teenager to the victims (at [77]).
Reformulation of orders 1 and 2
The court agreed with the appellant that orders 1 and 2 as made in the Local Court were too broadly framed (at [9]). Rather than dismissing those orders, the court reformulated them to include exceptions permitting incidental contact with persons under 18 in the course of retail transactions, customer service, professional appointments, and the ordinary exigencies of everyday life (at [83]). The court rejected the submission that compliance difficulty justified dismissal of the orders altogether, finding compliance with the reformulated orders was no more burdensome than the appellant's existing obligations under the registration regime (at [79]).
Orders Made
- Orders 3, 4 and 5 made by the Local Court confirmed without alteration
- For a period of 5 years from 24 May 2021, the appellant must not intentionally seek out or remain in the company of any person under 18 years of age, except for the purpose of retail service, customer service, receiving professional advice or treatment, or in the course of the exigencies of everyday life
- For the same period, the appellant must not intentionally communicate with any person under 18 years of age, subject to the same exceptions
Key Takeaways
- The District Court confirmed that the word "risk" in section 5(1)(a) of the Child Protection (Offender's Prohibition Orders) Act 2004 carries no additional qualification: the legislation does not require proof of a heightened, imminent, or otherwise embellished level of risk (at [14]).
- A pattern of telecommunications-based sexual offending against adult women, when combined with subsequent grooming offences targeting teenage girls, can constitute a relevant "nature and pattern of conduct" for the purposes of section 5(1) and the section 5(3) criteria (at [64], [77]).
- Where a prohibition order is too broadly drafted, the appropriate response on appeal may be to reformulate the order rather than to dismiss it, provided the statutory threshold is otherwise met (at [9], [78]).
- An appellant's intellectual disability may be relevant to the seriousness of individual offences under the section 5(3) assessment, but it does not of itself undermine the conclusion that the person poses a risk to the sexual safety of children (at [25], [80]).
- Repeated failures to comply with reporting obligations under the Child Protection (Offender's Registration) Act 2000 are a relevant consideration in assessing risk for the purposes of a prohibition order application (at [80]).
Legislation and Cases Referenced
Legislation
- Child Protection (Offender's Prohibition Orders) Act , 2004
- Child Protection (Offender's Registration) Act 2000
- Crimes Act 1914 (Cth)
- Crimes Act , 1900
Cases
- Gale v R [2021] NSWCCA 16
- McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Patterson [2020] NSWDC 416
- Tepania v R [2018] NSWCCA 247
- Veen v The Queen (No. 2) (1988) 164 CLR 465