O’REILLY v DEPARTMENT OF CORRECTIONS [2018] NZHC 469

O'REILLY v DEPARTMENT OF CORRECTIONS [2018] NZHC 469 [20 March 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000003[2018] NZHC 469BETWEEN ANARU O'REILLYAppellantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 13 March 2018Appearances: P Hamlin for the AppellantJ Harley for the RespondentJudgment: 20 March 2018JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Tuesday, 20 March 2018 at 11:00 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:P Hamlin, AucklandMeredith Connell, AucklandIntroduction[1] On 12 December 2017, Anaru Piripi Wirihana O'Reilly pleaded guilty to andwas convicted of four charges under s 39 of the Child Protection (Child Sex OffenderGovernment Agency Registration) Act 2016 (Child Protection Act) of failing tocomply with his reporting obligations. He sought to enter a plea of previous convictionto two other charges under s 107T of the Parole Act 2002 of failing to comply with theconditions of an extended supervision order.[2] If a plea of previous conviction is entered in relation to a charge, the Courtmust dismiss the charge if it is satisfied that the defendant has been convicted of anyother offence arising from the same facts. Mr O'Reilly submitted that his convictionsunder the Child Protection Act arose from the same facts upon which the two chargesunder the Parole Act were founded. In a reserved decision dated 20 December 2017,Judge Mathers refused leave to Mr O'Reilly to enter a special plea of previousconviction.1[3] On 21 December 2017, Mr O'Reilly therefore pleaded guilty to the two chargesunder the Parole Act. He was then convicted and sentenced to concurrent sentencesof six months imprisonment on the four charges under the Child Protection Act andconcurrent sentences of 13 months imprisonment on the two charges under the ParoleAct. He now appeals against conviction on the charges under the Parole Act on thebasis Judge Nicola Mathers was wrong to refuse him leave to enter a special plea.Factual background[4] On 21 April 2005, Mr O'Reilly was convicted of an indecent assault on a12 year old boy and sentenced to six months imprisonment with leave to apply forhome detention. He did not, however, apply for home detention and was released fromprison in accordance with the statutory scheme after serving half his sentence on21 July 2005.1 Department of Corrections v O'Reilly [2017] NZDC 29066.[5] On 30 May 2006, on application by the Department of Corrections, theChristchurch District Court made an extended supervision order against Mr O'Reillyunder s 107I of the Parole Act. Extended supervision orders are used to both monitorand manage the long term risk posed by high risk sex offenders. Mr O'Reilly'sextended supervision order set out a number of standard and special conditions withwhich he had to comply.[6] From that date and up until the present offending, Mr O'Reilly has beenconvicted of 30 charges of breaching the conditions of his extended supervision order.He has received terms of imprisonment on all 30 charges, ranging from one month in2006 to 18 months imprisonment in 2011. His most recent sentence of imprisonmentwas for a term of one year and two and a half months imposed in 2016.[7] The extended supervision order was for a term of 10 years, but is suspendedby operation of law while Mr O'Reilly is in prison. It has been more than ten yearssince the extended supervision order was imposed on Mr O'Reilly, but it is still inforce because of Mr O'Reilly's numerous terms of imprisonment. It is currently dueto expire on 3 May 2020.[8] On 14 October 2016, the Child Protection Act came into force. The purposeof the Act was to establish a Child Sex Offender register that would reduce sexualoffending against child victims and the risk posed by serious child sex offenders.Mr O'Reilly was a registrable offender in terms of the Act and, accordingly, becamesubject to various reporting obligations. Mr O'Reilly has an obligation to comply withthe reporting obligations for 15 years from when he ceased to be in custody in relationto the indecent assault offence of which he was convicted in 2005.[9] Mr O'Reilly's most recent release from prison was on 19 October 2016. Theday after his release, on 20 October 2016, Mr O'Reilly was fully re-inducted into hisextended supervision order by his Corrections probation officer, where the conditionsof his sentence were explained to him in detail and he acknowledged his understandingof those conditions by signing the induction documentation. The day before hisrelease, on 18 October 2016, Mr O'Reilly had also completed his registration underthe Child Protection Act with his Police case manager and was issued with a notice ofreporting obligations in relation to the Child Sex Offender register.[10] The two conditions of relevance of Mr O'Reilly's extended supervision orderwere:(a) to only engage in such vocational training/employment (paid or unpaid)and any community or sporting clubs/groups with the prior writtenapproval of his probation officer; and(b) to reside at an address approved by his probation officer and to not stayaway overnight or move from that address or subsequent approvedaddress without the prior written approval of his probation officer.[11] When he completed his registration under the Child Protection Act,Mr O'Reilly reported that he was not working and that he was living in a room atEpsom Lodge, 18 Margot Street, Auckland. Section 20(1) of the Child Protection Actrequired him to report any change in the details reported. Specifically, it required himto report to the Commissioner:(a) any change in the details report under s 16(1)(d) (premises at which theoffender generally resides or localities at which the offender cangenerally be found) at least 48 hours before the change occurred; and(b) any other change in his or her relevant personal information within72 hours after that change occurred.[12] On 20 February 2017, Mr O'Reilly registered for employment with the VitalHospitality agency in Auckland and commenced employment at various locations. Hedid not have prior written approval from his probation officer as required by hisextended supervision order. Nor did he inform the Police he was working within72 hours of the change in employment circumstances as required by the ChildProtection Act. On 1 May 2017, the Police received advice from the director of theVital Hospitality agency that Mr O'Reilly was still employed and was actuallyworking that day at a venue in South Auckland and was due to work at the same venuethe next day. Mr O'Reilly had been in agency employment since 20 February 2017and worked at private and large public events, including rest homes.[13] Further, on 2 May 2017, the Salvation Army, the manager of the Epsom Lodge,advised the Police that Mr O'Reilly had been away from the address for more than48 hours on three separate occasions between 2 March 2017 and 16 April 2017. Oneof these periods comprised of 11 nights consecutively. In total he had stayed awayovernight and not returned to his address on 13 occasions within the month of April2017. Mr O'Reilly did not have the prior written approval of his probation officer tostay away overnight from the address. Nor did he inform the Police at least 48 hoursbeforehand that he would be staying away for more than 48 hours.[14] As a consequence, the Department of Corrections charged Mr O'Reilly withtwo offences under s 107T of the Parole Act. He was charged that he, being a personwho is subject to an extended supervision order for a period of 10 years, failed withoutreasonable excuse to comply with the condition of the order in that:(a) he commenced employment without the prior written approval of aprobation officer; and(b) he stayed away overnight from his approved address without the priorwritten approval of a probation officer.[15] At the same time, the Police charged Mr O'Reilly with four offences unders 39(1) of the Child Protection Act. Two of these charges are of relevance. He wascharged that he, being a registrable offender without reasonable excuse, failed tocomply with his reporting obligations, namely:(a) to inform Police of his employment with the Vital Hospitality agencywithin 72 hours; and(b) to inform Police he was staying away for more than 48 hours from hisresidence with 48 hours prior notice.[16] Mr O'Reilly pleaded guilty to the two Police charges, and then sought to entera plea of special conviction to the two Corrections charges.District Court decision[17] After referring to the charges faced by Mr O'Reilly, Judge Mathers referred tothe Court of Appeal decision of Rangitonga and identified the principles to be appliedin relation to a plea of previous conviction or acquittal.2[18] Turning then to the facts of the case, the Judge considered it was too simplisticjust to compare the particulars of the Police and Corrections charges. In her view, thepunishable acts were different in each set of charges. The punishable act in the Policecharges was a failure to advise the Police and in the other charges, to advise theDepartment of Corrections. The Judge said that there were different considerationsand different protections. The Judge acknowledged that a very narrow considerationof the particulars disclosed the same or similar facts, but she did not consider that tobe the proper approach. As a result, the Judge was not prepared to allow the entry ofa special plea of conviction.Discussion[19] Mr O'Reilly sought to enter a plea of previous conviction in relation to theCorrections charges pursuant to s 46(1)(b) of the Criminal Procedure Act 2011. Itprovides:46 Previous conviction(1) If a plea of previous conviction is entered in relation to a charge, thecourt must dismiss the charge under section 147 if the court is satisfiedthat the defendant has been convicted of—(a) the same offence as the offence currently charged, arisingfrom the same facts; or(b) any other offence arising from those facts.(2) Subsection (1) does not apply if—(a) the defendant was convicted of an offence and is currentlycharged with a more serious offence arising from the samefacts; and2 Rangitonga v Parker [2016] NZCA 166, [2016] NZAR 768.(b) the court is satisfied that the evidence of the more seriousoffence was not readily available at the time the chargingdocument for the previous offence was filed.[20] I agree with counsel for Mr O'Reilly that s 46 departs from previous commonlaw principles and the now repealed Crimes Act 1961 provision in specificallyallowing for a plea of previous conviction for different offences arising from the samefacts.[21] In Rangitonga the Court of Appeal stated:3We agree that the reference to offences "arising from the same facts" in s 47is intended to apply to cases where there is a common punishable act centralto both the previous and new charge. We would add that the same approachshould apply to a common punishable omission. The new section focuses onthe substance of the facts giving rise to the previous and new charges ratherthan a fine-grained comparison of each element of the charges.[22] In Rangitonga the Court determined that a plea of previous acquittal was notavailable as the central punishable act for a charge of rape was sexual connectionwithout consent, while the central punishable act for the injuring charge was thepunching and attempted strangling of the complainant.[23] Counsel for Mr O'Reilly submits that the substance of the facts giving rise tothe Corrections charges under the Parole Act are the same as the facts which give riseto the Police charges under the Child Protection Act. He submits that the punishableomission giving rise to both the Corrections charges and the Police charges isMr O'Reilly's failure to report his change in employment status and address.[24] With respect, this misstates the nature of the punishable omission in theCorrections charges. Mr O'Reilly needed the prior written approval of his probationofficer to commence employment or stay away from his address overnight. This canbe contrasted with the Police charges in which the punishable omission is failure toreport changes in employment status and address, either within 72 hours of the changein employment status or at least 48 hours prior to the change in address. This reflectsreal differences between the two pieces of legislation.3 At [41]..[25] An extended supervision order is imposed by a sentencing court followingcompletion of a specialist report from a psychiatrist or psychologist and an assessmentby the court of a real and on-going risk of further sexual or violent offending. A personsubject to an order will have to report to their probation officer regularly, but inaddition will be subject to employment and residence constraints and restrictions aboutcontact with their victim(s) and other people or groups of people. They may also berequired to undergo assessment and undertake treatment if directed by their probationofficer.[26] Registration under the Child Protection Act is, however, automatic if certainstatutory criteria are met. There are no reports obtained and there is no assessment ofrisk by a court. There are no constraints on where a registrable offender can work orlive, who they can live with and when and where they can travel. They are obligedonly to report any changes in their circumstances. They cannot be required to undergoassessment or undertake treatment.[27] The differences can be illustrated by referring to the facts of this case. On20 February 2017, Mr O'Reilly commenced employment with the Vital Hospitalityagency. He did not have the prior written approval of his probation officer. When hecommenced employment without prior written approval he committed an offenceagainst the Parole Act. He was, however, at that time not in breach of the ChildProtection Act. He also was not in breach of the Act the next day, or even the followingday. It was only when he failed to report to the Police that he was employed by theVital Hospitality agency on or before 23 February 2017 that he committed an offenceagainst the Child Protection Act.[28] The central punishable act for the charge under the Parole Act wascommencing employment without prior written approval, while the central punishableact for the charge under the Child Protection Act was failing to report to the Policewithin 72 hours after commencing employment. There was, therefore, a space of threedays between the dates on which the offences were committed.[29] Counsel for Mr O'Reilly is wrong to submit that it is not possible to committhe Corrections charges without committing the Police charges. If Mr O'Reilly hadchosen to advise the Police on 23 February 2017 that he had commenced employment,he would have only have committed an offence against the Parole Act and not theChild Protection Act.[30] The difference is significant. If Mr O'Reilly had sought prior written approvalfrom his probation officer to commence employment with the Vital Hospitality agencyit may have been declined as the probation officer may have thought it would exposemembers of the public to a level of risk from Mr O'Reilly as he was to work as waitstaff at social functions, presumably sometimes at night and sometimes involving theprovision of alcohol.[31] If he was solely a registrable offender under the Child Protection Act and notsubject to an extended supervision order, he would not require approval and the Policecould not stop him from working for the Vital Hospitality agency.[32] Counsel for Mr O'Reilly pointed to the high level of co-operation betweenCorrections and the Police in aid of his submission that the Corrections and Policecharges arose from the same facts. With respect, the fact that there may be a measureof co-operation and information sharing between Corrections and the Police isimmaterial when assessing whether a plea of previous conviction is available.Mr O'Reilly was not under the same obligation to the same authority (Corrections orPolice) while subject to both regimes as submitted by his counsel.[33] Another significant difference between the two sets of offences is the status ofthe offender. In respect of the Corrections charges, Mr O'Reilly had to be a personwho was subject to an extended supervision order. In respect of the Police charges,Mr O'Reilly had to be a registrable offender under the Child Protection Act.[34] Corrections and Police were also not relying on the same evidence and thesame witnesses. Mr O'Reilly's probation officer would have been required to giveevidence that prior approval was not obtained prior to 20 February 2017, whileMr O'Reilly's Police case manager would have been required to give evidence that hedid not receive notice from Mr O'Reilly that he had commenced employment on orbefore 23 February 2017. That, with respect, is a material difference.[35] Finally, counsel for Mr O'Reilly submits that if a special plea of seriousconviction is not available to him then the Corrections charges ought to have beendismissed under the Court's inherent jurisdiction to prevent an abuse of process. I amof the view, however, that there has been no abuse of process.[36] The Corrections charges do not amount to double punishment, nor is the useof similar evidence improper. Parliament was well aware it was imposing overlappingobligations when it enacted the Child Protection Act and made the decision that thosealready subject to extended supervision orders would also be required to register onthe Child Sex Offender register. There is no abuse in the prosecution of Mr O'Reillyunder the two different statutes.[37] The judge was right to refuse to enter a plea of previous conviction. The appealis dismissed.________________________________Woolford J