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K v Police [2021] NZHC 3539 (17 December 2021)

Last Updated: 8 February 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 17 December 2021 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

K v NEW ZEALAND POLICE [2021] NZHC 3539 [17 December 2021]

Introduction

• [1] The appellant, Mr K, was convicted and sentenced by Judge Robinson in the Dunedin District Court on two charges of failing to comply with his obligations under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act).¹ He appeals those convictions.

• [2] The sole issue on appeal is whether Mr K’s name is properly included on the Child Sex Offender Register (the Register), because of the retrospective application of the Act.

Background

• [3] On 19 July 2013, Mr K was sentenced to two years and three months’ imprisonment on a charge of sexual connection with a young person, a qualifying offence under the Act. The sentence expiry date was 18 October 2015.

• [4] Prior to finishing that sentence Mr K was sentenced for non-qualifying offences. On 28 March 2014, he was sentenced to two years and one months’ imprisonment on a charge of arson, to be served cumulative on the sentence for sexual offending. He was also sentenced to one years’ imprisonment on two charges of burglary. That sentence was concurrent with the sentence of arson.

• [5] On 15 August 2016, Mr K was released on parole. Conditions of his release included not to contact or associate with any person under the age of 16 without approval. He was recalled to prison in December 2016. He was released on his statutory release date, 17 November 2017, again on conditions including not to contact an associate with any person under 16 years of age.

• [6] Mr K was also placed on the Register pursuant to the retrospective application provisions of the Act. Because the relevant offending occurred before the Act came into force this was not done at the time of sentencing. Instead, he was notified of his inclusion on the Register pursuant to cl 2 of sch 1 to the Act. This requires the

¹ Police v K DC Dunedin CRI-2020-012-001850, 28 June 2021.

Commissioner of Police to give written notice to every registrable offender referred to in cl 1(1)(b) to (e) of:

(a) the offender’s reporting obligations; and

(b) the penalties for failing to comply with those obligations.

Mr K received such a letter and signed an acknowledgment of having received it and understood his obligations under it, on 17 October 2016.

• [7] Under s 49 of the Act, there is a right of review of the decision to place an individual on the Register by the Commissioner. No right of review was exercised by Mr K, nor was any subsequent right of appeal under s 50 exercised. Accordingly, he was on the Register at the time of the offending which is the subject of this appeal.

Preliminary issue

• [8] The circumstances outlined above give rise to a preliminary issue which was traversed with counsel in oral submissions, and addressed in submissions for the respondent filed after the hearing. The issue was whether, when the facts were not disputed, Mr K could raise a collateral challenge to the validity of the Commissioner’s determination that Mr K be placed on the Register, even though Mr K had not sought to review or appeal that decision.² Although the respondent also queried whether the Parole Board’s decision was being challenged, I am satisfied it was not, and in any event, I can see no basis for challenging the release conditions the Board imposed.

• [9] The question of whether the validity of an administrative decision can be challenged in the context of a prosecution has been the subject of a number of decisions.³ It is now recognised that the lawfulness of an administration action can, in some circumstances, be challenged. As Lord Irvine observed in Boddington v British Transport Police:⁴

² As permitted under Child Protection (Child Sex Offender Government Agency Registration) Act 2016, ss 49 and 50.

³ R v Wicks [1997] UKHL 21; [1998] AC 92 (HL); Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143 (HL).

⁴ Boddington v British Transport Police, above n 3, at 152.

The question of the extent to which public law defences may be deployed in criminal proceedings requires consideration of fundamental principle concerning the promotion of the rule of law and fairness to defendants to criminal charges in having a reasonable opportunity to defend themselves. However, sometimes the public interest in orderly administration means that the scope for challenging unlawful conduct by public bodies may have to be circumscribed.

He went on to say:⁵

Subordinate legislation, or an administrative act, is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however, entail that such legislation or act is valid until quashed prospectively

... In my judgment, the true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all. The burden in such a case is on the defendant to establish on a balance of probabilities that the subordinate legislation or the administrative act is invalid.

• [10] The same context specific approach has been adopted in New Zealand. In Brady v Northland Regional Council, which involved a claim for unpaid fees imposed under a bylaw, and where the defendant challenged the validity of the bylaw, Elias J said:⁶

When collateral challenge will be permitted is, as Wade and Forsyth suggests (at page 326), probably incapable of determination by hard and fast rules: “in some situations it will be suitable and in others it will be unsuitable, and no classification for cases is likely to prove exhaustive.” The only reliable pointers will be the seriousness of the error in all the circumstances of the case in whether the challenge is central to the case actually before the court.

Elias J considered a collateral challenge must be available where the validity of an act was central to the defence in civil or criminal proceedings, especially where the alternative was the inconvenience of having separate proceedings.

• [11] However, in Harwood v Thames Coromandel District Council, where the defendant was convicted on a charge of failing to register his dog, Randerson J held that a challenge to the reasonableness of the fees for registration was not available.⁷ The statutory context under the Dog Control Act 1996 and other statutory provisions displaced the general provision that an accused person is entitled, in criminal

⁵ At 155.

⁶ Brady v Northland Regional Council [2008] NZAR 505.

⁷ Harwood v Thames Coromandel District Council [2008] NZAR 518.

proceedings, to challenge the validity or lawfulness of a public act or decision upon which his conviction depends.

• [12] Similarly, in Moore v Police, MacKenzie J did not consider the legislative scheme of an offence under the Wanganui District Council (Prohibition of Gang Insignia) Act 2009 permitted a challenge to a bylaw made under that Act in defending a prosecution for an offence under that Act, saying to do so would require a close examination of the Council’s decision-making process and require the Council to be a party to such proceedings, which could not have been intended.⁸

• [13] In the present circumstances, it is clear the validity of the decision to place Mr K on the Register is central to the question of whether an offence has been committed. The challenge is a straightforward one; whether there was jurisdiction to place him on the Register in light of the transitional provisions in the Act. It does not require a complex investigation into an administrative decision-making process and it can be determined simply as a question of law in the current proceedings.

• [14] As the challenge is central to the case before the Court and is founded on the single question of whether there was jurisdiction to place him as a registrable offender, I am satisfied that Mr K is able to pursue a collateral challenge to that decision in his appeal.

Principles on appeal

• [15] This Court may only allow an appeal against conviction if satisfied, in the case of a judge-alone trial, that the Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.”⁹ A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.¹⁰ The onus is on the appellant to show that an error occurred.

⁸ Moore v Police [2010] NZAR 406.

⁹ Criminal Procedure Act 2011, s 232(2)(b).

¹⁰ Section 232(4).

The alleged error

• [16] In this case the error alleged is the failure to identify there was no jurisdiction to categorise Mr K as a registrable offender and have him placed on the Register. If he was not a registrable offender, no offence was committed.

• [17] This ground of appeal turns on the interpretation of sch 1, cl 1 of that Act which provides:

1 Retrospective application

(1) This clause applies to a person who, on 14 October 2016, is, in respect of a qualifying offence,—

(a) serving, in custody, the sentence of imprisonment that was imposed for that offence; or

(b) serving, on parole or on release from custody on release conditions, the sentence of imprisonment that was imposed for that offence; or

(c) subject to an extended supervision order or an interim supervision order following the sentence of imprisonment that was imposed for that offence; or

(d) subject to a public protection order or an interim detention order following the sentence of imprisonment that was imposed for that offence; or

(e) 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.

• [18] Accordingly, 14 October 2016 is the relevant date to assess a person’s status in determining if they should be placed on the Register.

District Court decision

• [19] The primary issue before the District Court Judge was, as here, whether Mr K was a registrable offender by reference to his status on 14 October 2016. Mr K’s counsel contended Mr K could not be registered as he was no longer serving a term of imprisonment or subject to conditions relating to the qualifying offence at the time the Act came into force.
• [20] The Judge proceeded on the basis Mr K’s circumstances were captured by cl (1)(1)(e), which refers to a person no longer serving the sentence of imprisonment but still subject to release conditions.

• [21] The Judge considered himself bound by both the High Court and Court of Appeal decisions in RPM v Commissioner of Police.¹¹ He found the cases were factually indistinguishable.¹² Referring to the Court of Appeal decision, the Judge found the question was whether, in relation to the qualifying offence, Mr K was no longer serving the sentence of imprisonment for that offence but was still subject to release conditions following the sentence expiry date of that sentence.¹³

• [22] The Judge found the criteria were satisfied as Mr K was subject to release conditions following his sentence expiry date which were imposed on 15 August 2016. There was a nexus between the qualifying offence and the release conditions and those conditions were imposed partly in respect of the sentence for the qualifying offence.

• [23] The Judge found there was no merit in the submission made by Mr K’s counsel that the release condition relating to contact with young persons related to the non-qualifying offences.

• [24] Similarly, the Judge dismissed the submission that the Act did not apply to a person subject to a “notional sentence” in terms of s 75 of the Parole Act 2002. He noted that matter had been determined by the High Court in RPM v Commissioner of Police, where the Court found those considerations have no bearing on a person’s status as a registrable offender under the Act.¹⁴

¹¹ RPM v Commissioner of Police [2018] NZHC 2198, [2018] NZFLR 751 and RPM v Commissioner of Police [2019] NZCA 279, [2019] NZFLR 144 [RPM – Court of Appeal]

¹² Police v K, above n 1, at [30].

¹³ At [31], referring to RPM – Court of Appeal, above n 11, at [18].

¹⁴ At [42], citing RPM v Commissioner of Police, above n 11, at [34].

Submissions

Appellant’s submissions

• [25] Mr K’s position is that none of the retrospective transitional provisions in sch 1, cl 1 of the Act apply to a person such as Mr K who is subject to a notional sentence in terms of s 75 of the Parole Act but where the sentence for the qualifying offence expired more than six months before 14 October 2016. For this reason, unlike in RPM, the release conditions he was subject to do not relate to his sentence on the charge of sexual connection with a young person.

• [26] In support of this view, Mr More accepts that Mr K was subject to a single notional sentence. However, that sentence does not alter the individual sentences which make up the notional single sentence. Accordingly, the “real” expiry date of the qualifying sentence was 18 October 2015 and imposing release conditions to last beyond 18 April 2016 would effectively be punishing him again.

• [27] Mr More submits the fact that one of the release conditions prohibited contact with young persons did not link the conditions to the registrable offence. In his submission, the condition could not relate to the qualifying offence when it was imposed after the expiry date for any post release conditions, being six months after the offender’s statutory release date.¹⁵

Respondent’s submissions

• [28] Mr Bernhardt, for the respondent, points out the District Court (and counsel at the hearing) erred in stating Mr K’s status on 14 October 2016 was that he was subject to release conditions. At that date, Mr K was subject to parole conditions. Mr Bernhardt submits the distinction is important, but does not affect Mr K’s registrability, rather it renders him registrable under a different part of the Act’s framework. It is submitted he is most correctly caught by cl 1(1)(b) of the Act as he was, in relation to a qualifying offence, “serving, on parole... the sentence of imprisonment that was imposed for that offence”.

¹⁵ Parole Act 2002, s 18(2).

• [29] It is submitted, in light of these findings, RPM is not identical to the present case. However, Mr Bernhardt submits the reasoning of the Court of Appeal in relation to a “necessary nexus” remains relevant to Mr K’s situation. It is submitted the parole conditions undoubtedly related to the qualifying offence.

• [30] Mr Bernhardt refers to the Parole Board decision in July 2016 where it was noted Mr K had completed the Child Sex Offender Treatment Programme in August 2015, his risk of further sexual offending was moderate, and a condition not to have contact with young persons was imposed. In Mr Bernhardt’s submission, the Parole Board was not under any misapprehension that Mr K was, as at July 2016, only serving a sentence for non-qualifying offences.

• [31] Mr Bernhardt submits the intention of the legislation was to capture the widest possible number of child sex offenders within the Act’s provisions. In his submission, if release conditions can relate to a sentence which has technically expired, it is logical that parole conditions can relate to earlier aspects of a single notional sentence. Here, the chain is not broken by a complete exit from the criminal justice system between sentences.

• [32] It is submitted it would create an absurdity if an offender’s primary risk area was ignored by the Parole Board because the sentence expiry date for the offending had technically already occurred.

• [33] Mr Bernhardt submits Mr K was still serving his sentence for a qualifying offence because a person who is on parole is subject to recall.

Analysis

• [34] It is common ground, had Mr K not been sentenced to a term of imprisonment for non-qualifying offences, he would not have been caught by the provisions of the Act.

Does cl 1(1)(b) or cl 1(1)(e) apply to Mr K’s circumstances?

• [35] For clarity, I set out the two clauses again:

(b) serving, on parole or on release from custody on release conditions, the sentence of imprisonment that was imposed for that offence; or

...

(e) 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.

Mr Bernhardt contends cl 1(1)(b) applies as Mr K was, in respect of a qualifying offence, serving that sentence on parole on 14 October 2016. However, I reject this submission for the following reasons.

• [36] In RPM v Commissioner of Police, the High Court was required to determine if the offender was “no longer serving the sentence of imprisonment”. Relevantly,

Ellis J said:¹⁶

[34] Mr Powell accepted that the relevant sentence expiry date for the purposes of para (e) was 10 September 2015 (the sentence expiry date for the qualifying offence) rather than the sentence expiry date for the notional single sentence. I record my agreement with that position. The expiry date for “that” sentence, namely the sentence imposed for the qualifying offence, cannot sensibly be interpreted as including the expiry date of some other, notional, sentence.¹⁷

• [37] The Court of Appeal agreed with Ellis J, stating:¹⁸

On the critical date for assessment, 14 October 2016, the appellant was no longer serving that sentence (because the sentence expiry date for that sentence had passed) but he was still subject to release conditions (following that sentence expiry date) and these conditions were imposed partly in respect of that sentence...

• [38] Here, on 16 October 2014, Mr K was no longer serving a sentence of imprisonment for the qualifying offence as that sentenced expired on 18 October 2015, almost a year earlier. It follows, cl 1(1)(b) does not apply as Mr K was not “serving, on parole... the sentence of the sentence of imprisonment that was imposed for [the qualifying] offence.”

¹⁶ RPM v Commissioner of Police, above n 11. Emphasis added.

¹⁷ And s 75 makes it clear that cumulative sentences form a single notional sentence only for the purposes there specified, which do not include determining eligibility for registration under the [Act].

¹⁸ RPM – Court of Appeal, above n 11, at [18]. Emphasis added.

• [39] In my view, cl 1(1)(e) is the only provision under which Mr K’s status at 14 October 2016 could be considered. The key issue is whether the second element of cl 1(1)(e) is satisfied, namely, whether on 14 October 2016, Mr K was subject to release conditions that were imposed in respect of the qualifying sentence.

Was Mr K subject to release conditions?

• [40] Release conditions are defined in the Parole Act as follows:¹⁹

release conditions means the standard release conditions and any special conditions imposed by the Board or the sentencing court and that apply to an offender released from detention

The Board “means the New Zealand Parole Board”.²⁰

• [41] Mr K was released on parole at the time he was made a registrable offender. Release on parole entails the offender serving the remainder of their sentence of imprisonment in the community, subject to standard and/or special conditions. This differs to a release on a statutory release date which is “the date on which the offender who is subject to the sentence ceases to be liable to be recall.”²¹

• [42] Mr K’s circumstances differ slightly, although not materially, from those in RPM. There, the appellant’s single notional sentence expired in September 2016 and he was released on his statutory release date, subject to special release conditions.²² His status on 14 October 2016 was that he was no longer serving a sentence of imprisonment for a qualifying offence, but was subject to special release conditions. Here, Mr K was released on parole which means he was continuing to serve a sentence for a non-qualifying offence.

• [43] The High Court in RPM considered the only interpretive issue was the meaning of “following” in cl 1 (1)(e). The appellant’s counsel contended “following” meant “immediately following” the expiry date of the qualifying sentence.²³ The respondent

¹⁹ Parole Act, s 4(1).

²⁰ Section 4(1).

²¹ Section 4(1).

²² RPM v Commissioner of Police, above n 11, at [8].

²³ At [35].

submitted “following” simply meant at any time “after” the expiry of the qualifying sentence as long as the release conditions were, in part, imposed due to the expiry of the qualifying sentence. Ellis J preferred the latter position, finding that if “following” meant “immediately following” “that would effectively mean that [the appellant] was not subject to release conditions at all as a result of the expiry of his qualifying offence and... that was plainly not so.”²⁴

• [44] The Court of Appeal agreed with Ellis J’s findings, stating:²⁵

[18] We can see no licence for reading in the word “immediately” before “following”.²⁶ The question is simply whether, in respect of a qualifying offence, the appellant was no longer serving the sentence of imprisonment for that offence but was still subject to release conditions following the sentence expiry date of that sentence. In agreement with Ellis J, we consider the answer is plainly “yes”... On the critical date for assessment, 14 October 2016, the appellant was no longer serving that sentence (because the sentence expiry date for that sentence had passed) but he was still subject to release conditions (following that sentence expiry date) and these conditions were imposed partly in respect of that sentence.

• [45] Therefore, if an offender is no longer serving a sentence of imprisonment for a qualifying offence, but is subject to release conditions that are imposed partly in respect of the sentence for the qualifying offence, the offender will fall within the ambit of cl 1(1)(e).

Are conditions of release on parole, release conditions for the purposes of cl 1(1)(e)?

• [46] Again, release conditions are defined in the Parole Act as follows:²⁷

release conditions means the standard release conditions and any special conditions imposed by the Board or the sentencing court and that apply to an offender released from detention

• [47] Mr K’s conditions were imposed by the Board as a condition of his release from detention. The role of the Board is to consider, among other things, the release of offenders for parole.²⁸ While Mr K seeks to distinguish conditions imposed at

²⁴ At [38].

²⁵ RPM – Court of Appeal, above n 11.

²⁶ R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [156], citing Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523 (CA) at 572 and 581.

²⁷ Parole Act, s 4(1).

²⁸ Section 109(1)(a).

sentence expiry date for those imposed when released on parole, I do not agree. In my view, the above definition is broad enough to capture conditions of parole imposed by the Parole Board. It would be an illogical result if an offender released on parole before their release date on a single notional sentence was not classed as an eligible offender, and yet if their release was deferred to their statutory release date, as in RPM, they were an eligible offender.

Was there a sufficient nexus between Mr K’s release conditions and the qualifying offence?

• [48] Mr K was before the Parole Board on 18 July 2016 and released on 15 August 2016. In directing his release, the Board imposed 10 conditions, including the following:

You are not to associate or otherwise have contact with any person under 16 years of age unless under the direct supervision of an informed adult who has been approved by the Probation Officer.

• [49] In their decision, the Board noted Mr K had completed the Child Sex Offender Treatment Programme and a psychological assessment rated his risk of further sexual offending as moderate.

• [50] The condition above clearly relates to the qualifying offence. There is nothing to indicate that the non-qualifying offences required a condition that he not associate or contact young people. While the expiry date of Mr K’s sentence for the qualifying offence was 10 months before the imposition of the condition (18 October 2015), the imposition of his release conditions was simply deferred. It would create an absurdity if, in circumstances such as these, the Board was not able to consider the totality of the offending for which an offender was sentenced. To do so would unnecessarily constrain the Board’s considerations and prohibit them from imposing conditions necessary for the protection of the public.

• [51] I find that on 16 October 2016, Mr K was no longer serving a sentence of imprisonment for a qualifying offence, but he was subject to release conditions which bring him within the ambit of cl 1(1)(e). As such, he was a registrable offender.

Conclusion

• [52] The District Court Judge did not err in his assessment and the appeal is dismissed.

Solicitors:

RPB Law, Dunedin

Copy To:

Mr D More, Barrister, Dunedin