IN THE DISTRICT COURT AT WELLINGTON CRI CRI [2017] NZDC COMMISSIONER OF POLICE Respondent

Transcription

1 IN THE DISTRICT COURT AT WELLINGTON CRI CRI [2017] NZDC BETWEEN AND DAVID HUGH CHORD ALLAN KENDRICK DEAN Appellants COMMISSIONER OF POLICE Respondent Hearing: 15 August 2017 Appearances: T Ellis and G Edgeler for the Appellants I R Murray for the Respondent Judgment: 25 August 2017 RESERVED JUDGMENT OF JUDGE I G MILL ON APPEAL [1] Both appellants have appealed against the decision of the Commissioner of Police not to remove them from the adult sex offenders register established by the Child Protection (Child Sex Offender Government Agency Registration) Act [2] An appeal from such a decision by way of review lies with the District Court. 1 [3] Mr Dean was convicted on 3 November 1995 for an offence of indecently assaulting a boy under 16 and sentenced to preventive detention. At the time of the lodging of his appeal, he was still detained. At the date of hearing, he was deceased. [4] His appeal is dismissed. 1 Section 50. DAVID HUGH CHORD v COMMISSIONER OF POLICE [2017] NZDC [22 August 2017]

2 [5] David Chord was convicted of doing an indecent act with a young person under 16 and sentenced to two years and nine months imprisonment on 23 December [6] On 16 May 2011, he was made subject to an extended supervision order which expires on 22 August Relevant law [7] Section 7 of the Act prescribes if a person (18 years or over) is convicted of a qualifying offence (listed in sch 2) and sentenced to imprisonment, registration is automatic and non-discretionary. Section 7 relevantly states: 7 Who is a registrable offender? (1) A registrable offender is a person whom a court has, in respect of a conviction for a qualifying offence, sentenced to imprisonment; or sentenced to a non-custodial sentence and made subject to a registration order. (2) A person who is a corresponding registrable offender and who resides in New Zealand or enters New Zealand with the intention to reside in New Zealand is also a registrable offender. (3) However, a person is not a registrable offender if, at the time the person committed the qualifying offence, the person had not attained the age of 18 years. (4) A person ceased to be a registrable offender if (c) the conviction in respect of each qualifying offence that makes him or her a registrable offender for the purposes of this Act is quashed or set aside by a court; or the sentence in respect of that offence is reduced or altered so that he or she would not have fallen within the definition of registrable offender in subsection (1) had the amended sentence been the original sentence; or the registration order in respect of that offence is set aside by a court. (5) For the purposes of this section, it is irrelevant whether a person may lodge, or has lodged, an appeal in respect of a conviction or in respect of a sentence or order.

3 [8] Section 4 of the Act defines qualifying offence. Section 4 states: qualifying offence means a class 1 offence, a class 2 offence, a class 3 offence, or an equivalent repealed offence. [9] Schedule 2 prescribes the qualifying offences insofar as the Act applies. Schedule 2 relevantly includes the charge which the appellant has been convicted of. Indecent act on a young person is a class 2 qualifying offence. [10] Clause 1 of sch 1 prescribes that the Act has retrospective application. Clause 1 relevantly states: 1 Retrospective application (1) This clause applies to a person who, on 14 October 2016, is, in respect of a qualifying offence, (c) (d) (e) serving, in custody, the sentence of imprisonment that was imposed for that offence; or serving, on parole or on release from custody on release conditions, the sentence of imprisonment that as imposed for that offence; or subject to an extended supervision order or an interim supervision order following the sentence of imprisonment that was imposed for that offence; or subject to a public protection order or an interim detention order following the sentence of imprisonment that was imposed for that offence; or no longer serving the sentence of imprisonment that was imposed for that offence, but still subject to release conditions following the sentence expiry date of that sentence. (2) This clause applies to a person who was convicted before 14 October 2016 of a qualifying offence; and on or after 14 October 2016, in respect of that conviction, (c) (d) was or is sentenced to imprisonment; or was or is sentenced to a non-custodial sentence and made subject to a registration order. (3) This clause applies to a person who

4 was convicted before 14 October 2016 of a corresponding offence in a foreign jurisdiction; and as a consequence of that conviction, on or after 14 October 2016, (i) (ii) (iii) was or is sentenced to imprisonment; or was or is required to report in that jurisdiction information about himself or herself to a person or body performing functions substantially similar to those of the Commissioner under this Act, and to keep that information current for a particular period (and would, if the person were currently in that jurisdiction, still be required to report that information); or was or is deported from that jurisdiction. (4) A person to who this clause applies (c) is a registrable offender for the purposes of section 7(1) and this schedule (if subclause (1) or (2) applies); and is a corresponding registrable offender for the purposes of section 8 and a registrable offender for the purposes of section 7(2) and this schedule (if subclause (3) applies); and is subject to all other provisions of this Act with any necessary modifications. Appellant s submissions [11] The appellant argues that the Commissioner of Police should not be the respondent in this appeal. It is submitted the Commissioner of Police as the decision-maker means the appeal is analogous to a judicial review where the judicial officer would not be a party to the proceedings. For example, in the case of a District Court Judge, the District Court itself is the respondent. [12] Mr Ellis submits that the Police are the correct respondent. [13] I note that the Commissioner has been given statutory authority for establishing and maintaining the register as opposed to the police.

5 [14] While I appreciate Mr Ellis point, in my view, the Commissioner is the correct respondent. I note also the Commissioner was the respondent in the case of AH v Commissioner of Police, 2 a judicial review case. [15] I find the Commissioner is the correct respondent. The grounds of appeal [16] The appellant appeals against the Commissioner s review which refused to remove his name from the register citing grounds in both international and domestic law. [17] At international law, Mr Ellis submits there can be no reasonable limitation to the right not to be subject to an ex post facto criminal punishment. This is an absolute right, he submits, under the International Covenant on Civil and Political Rights (the Covenant). It is also embodied, he submits, in the general comments of the United Nations Human Rights Committee, the body charged with formulating interpretations of the Covenant. [18] Under Article 15 of those comments, the Committee establishes that both criminal liability and punishment is limited to clear and precise provisions in the law that were in place and applicable at the time that the act or omission took place, except in cases where a later law imposes a lighter penalty. [19] The article provides that a heavier penalty than the one that was applicable at the time when the criminal offence was committed shall not be imposed. [20] He submits these provisions are persuasive when interpreting domestic legislation, citing to me the case of Tavita v Minister of Immigration 3 where the interpretation of a discretionary power and the rights under the New Zealand Bill of Rights Act 1990 were involved. 2 AH v Commissioner of Police [2017] NZAR Tavita v Minister of Immigration [1994] 2 NZLR 257.

6 [21] He draws support from Lord Cooke s judgment in R v Secretary of State for the Home Department. 4 [22] He submits there is a domestic statute of New Zealand included in the schedule to the Imperial Laws Application Act 1988 that applies directly, namely, Statutes of Westminster the First 1275 which provides, For the maintaining of peace and justice: The King willeth and commandeth... that common right be done to all, as well poor as rich, without respect of persons. [23] Mr Ellis submits therefore that the common right needs to be done to all prisoners or ex-prisoners and they not be placed on an adult sex offenders register, having served their time in accordance with the law at the time of their offending, lest they be unlawfully discriminated against. [24] Undoubtedly, the convention and the articles support the proposition that law should not be applied retrospectively. However, as a judicial officer of the District Court, being a Court created through domestic statute and without inherent jurisdiction, I am bound by the domestic law that applies to this case. The domestic law [25] Schedule 1 of the Act is unambiguous. As was stated in the case of AH v Commissioner of Police by Faire J at paragraph 19: This is not a case where there appears to be any ambiguity in the text. The natural and ordinary meaning of cl 1 of Schedule 1 of the Principal Act is clear on its face. All of the persons I have referred to in [17] are covered by the retrospectivity provision. The applicant is one of those persons. [26] Registration is recognised as punitive. This can be seen in Bell v R 5 at paragraph 26: The Act came into force after Mr Bell s sentencing. We accept that its effect is punitive, even if its primary purpose is the protection of further potential victims from harm. It will undoubtedly restrict in significant ways the freedom of offenders who have served their sentences. And, for community 4 R v Secretary of State for the Home Department, Ex Parte Daly, [2001] UKHL 26; [2001] 3 All ER 433; [2001] 2 WLR Bell v R [2017] NZCA 90.

7 protection reasons, it was expressly intended to apply to offenders who had been sentenced prior to its enactment. It is entirely unlikely that Parliament, in legislating retrospectively in this fashion, intended that its effect should be to discount sentences already imposed or to be imposed in the future. That would, we venture, be contrary to the underlying purpose of the measure. [27] Section 10A Crimes Act 1961 provides: Notwithstanding any other enactment or rule of law to the contrary, no person shall be liable in any criminal proceedings in respect of an act or omission by him or her if, at the time of the act or omission, the act or omission by him or her did not constitute an offence. [28] Section 6 Sentencing Act 2002 provides as follows: (1) An offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty. (2) Subsection (1) applies despite any other enactment or rule of law. [29] As far as s 10A Crimes Act is concerned, the appellant s reliance on that provision to submit that registration cannot be imposed because of the words notwithstanding any other enactment or rule of law to the contrary and because registration is punitive, is misconceived. Liability for registration does not arise from an act or omission that did not constitute an offence at the time. [30] In respect of s 6 Sentencing Act, the penalty for the offence did not vary between the commission of the offence and sentencing. Mr Chord has been subject to registration imposed by operation of law. [31] The provisions of the New Zealand Bill of Rights Act were considered in this setting in AH v Commissioner of Police. At paragraph 20, Faire J said: The factual and ordinary interpretation does cause an inconsistency with s 26 of the NZBORA. It is necessary to consider the relationship between s 6 of the NZBORA, which requires the Court to prefer a rights consistent interpretation even if it departs from the natural and ordinary meaning of the words, and s 4, which prohibits the Court from holding that any provision of enactment is impliedly repealed or revoked or is in some way invalid and ineffective. Nor shall the Court decline to apply any provision of such enactment by reason only that provision is inconsistent with the provisions of NZBORA. In short, Parliament retains the ability to pass a law that is inconsistent with a guaranteed right under NZBORA.

8 Decision [32] Although there is a persuasive United Nations convention and supporting articles declaring legislation should not be retrospective and some domestic provisions that apply in specific situations, I find those international and domestic provisions do not assist Mr Chord. The statutory provision is quite clear and registration is to be applied retrospectively. The Commissioner s review decision refusing to remove Mr Chord from the register was correct. [33] The appeal is dismissed. I G Mill District Court Judge