O’REILLY v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZCA 313 [16 August 2018]

O'REILLY v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZCA 313[16 August 2018]NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFCOMPLAINANT PROHIBITED BY S 139 OF THE CRIMINALJUSTICE ACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA186/2018[2018] NZCA 313BETWEEN ANARU PIRIPI WIRIHANA O'REILLYApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 30 July 2018Court: Asher, Brewer and Thomas JJCounsel: P K Hamlin for ApplicantC A Brook and K Peirse-O'Byrne for RespondentJudgment: 16 August 2018 at 3 pmJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] It has long been the law that a person cannot be convicted twice of the sameoffence. The current iteration of that law is s 46 of the Criminal Procedure Act 2011:46 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; and(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.[2] Mr O'Reilly submits he was charged with two offences to which s 46 applies.He entered pleas of previous conviction to them.1 Judge Mathers2 decided the pleaswere not available to him.3 Mr O'Reilly was convicted. He appealed to theHigh Court and Woolford J upheld Judge Mathers's decision.4 Mr O'Reilly now seeksleave to bring a second appeal to this Court.[3] We will grant Mr O'Reilly leave if he satisfies us his appeal involves a matterof general or public importance or a miscarriage of justice may have occurred (or mayoccur) unless the appeal is heard.5 The test is a high one.6 The general or publicimportance limb will be met where an appeal relates to "an important question of lawhaving broad application beyond the circumstances of the particular case".7Background[4] Mr O'Reilly is subject to an Extended Supervision Order (ESO), having beenconvicted in 2005 of an indecent assault on a 12-year-old boy. Mr O'Reilly is also a1 Criminal Procedure Act 2011, s 45(1)(a).2 Department of Corrections v O'Reilly [2017] NZDC 29066.3 Criminal Procedure Act, s 49.4 O'Reilly v Department of Corrections [2018] NZHC 469.5 Criminal Procedure Act, s 237(2).6 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.7 At [36].registered offender under the Child Protection (Child Sex Offender GovernmentAgency Registration) Act 2016 (Child Protection Act).[5] On 12 December 2017, Mr O'Reilly pleaded guilty to four charges under theChild Protection Act of failing to comply with his statutory reporting obligations.At that time, he also faced two charges of failing to comply with the conditions of hisESO.8 Mr O'Reilly applied to enter pleas of previous conviction to those charges,arguing they must be dismissed because the offences arise from the same facts as thecharges under the Child Protection Act to which he had pleaded guilty.[6] Justice Woolford observed:9[10] The two conditions of relevance of Mr O'Reilly's extendedsupervision order were:(a) to only engage in such vocational training/employment (paidor unpaid) and any community or sporting clubs/groups withthe prior written approval of his probation officer; and(b) to reside at an address approved by his probation officer andto not stay away overnight or move from that address orsubsequent approved address without the prior writtenapproval 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 roomat Epsom Lodge, 18 Margot Street, Auckland. Section 20(1) of the ChildProtection Act required him to report any change in the details reported.Specifically, it required him to report to the Commissioner:(a) any change in the details report under s 16(1)(d) (premises atwhich the offender generally resides or localities at which theoffender can generally be found) at least 48 hours before thechange occurred; and(b) any other change in his or her relevant personal informationwithin 72 hours after that change occurred.[7] Mr O'Reilly took up employment and absented himself from his residence. Hedid not comply with his reporting obligations under the Child Protection Act, nor didhe seek the prior written approval of his probation officer, thus breaching conditionsof his ESO.8 Parole Act 2002, s 107T.9 O'Reilly v Department of Corrections, above n 4.Discussion[8] The issue for us is whether there is sufficient scope for argument that thecharges brought against Mr O'Reilly engage s 46(1)(b) of the Criminal Procedure Actsuch that a miscarriage of justice may have occurred.[9] In Rangitonga v Parker, this Court said:10[41] We agree that the reference to offences "arising from the same facts"in s 47 is intended to apply to cases where there is a common punishable actcentral to both the previous and new charge. We would add that the sameapproach should apply to a common punishable omission. The new sectionfocuses on the substance of the facts giving rise to the previous and newcharges rather than a fine-grained comparison of each element of the charges.[10] Justice Woolford rejected the submission that the substance of the facts givingrise to the charges of breaching the ESO are the same facts which give rise to thecharges brought by the police under the Child Protection Act. Justice Woolford heldthat the punishable omissions are not the same:[24] With respect, this misstates the nature of the punishable omission inthe Corrections charges. Mr O'Reilly needed the prior written approval of hisprobation officer to commence employment or stay away from his addressovernight. This can be contrasted with the Police charges in which thepunishable omission is failure to report changes in employment status andaddress, either within 72 hours of the change in employment status or at least48 hours prior to the change in address. This reflects real differences betweenthe two pieces of legislation.[25] An extended supervision order is imposed by a sentencing courtfollowing completion of a specialist report from a psychiatrist or psychologistand an assessment by the court of a real and on-going risk of further sexual orviolent offending. A person subject to an order will have to report to theirprobation officer regularly, but in addition will be subject to employment andresidence constraints and restrictions about contact with their victim(s) andother people or groups of people. They may also be required to undergoassessment and undertake treatment if directed by their probation officer.[26] Registration under the Child Protection Act is, however, automatic ifcertain statutory criteria are met. There are no reports obtained and there isno assessment of risk by a court. There are no constraints on where aregistrable offender can work or live, who they can live with and when andwhere they can travel. They are obliged only to report any changes in theircircumstances. They cannot be required to undergo assessment or undertaketreatment.10 Rangitonga v Parker [2016] NZCA 166, [2016] NZAR 768 (emphasis added).[27] The differences can be illustrated by referring to the facts of this case.On 20 February 2017, Mr O'Reilly commenced employment with theVital Hospitality agency. He did not have the prior written approval of hisprobation officer. When he commenced employment without prior writtenapproval he committed an offence against the Parole Act. He was, however,at that time not in breach of the Child Protection Act. He also was not inbreach of the Act the next day, or even the following day. It was only whenhe failed to report to the Police that he was employed by the Vital Hospitalityagency on or before 23 February 2017 that he committed an offence againstthe Child Protection Act.[28] The central punishable act for the charge under the Parole Act wascommencing employment without prior written approval, while the centralpunishable act for the charge under the Child Protection Act was failing toreport to the Police within 72 hours after commencing employment. Therewas, therefore, a space of three days between the dates on which the offenceswere committed.[11] Mr Hamlin, for Mr O'Reilly, submits Woolford J erred because the analysisjust quoted concentrated on the differences between the offences charged, rather thanthe facts which gave rise to the offences. In Mr Hamlin's submission, the two sets ofcharges overlap to such an extent that the authorities could charge Mr O'Reilly withonly one set of them. That is because the facts from which both sets of charges ariseare the same, namely, the change of employment and the absences from his address.[12] Mr Hamlin relies on the decision of this Court in Filitonga v R.11 Mr Filitongahad HIV12 and knew it. Nevertheless, he had unprotected sex with the complainantwithout disclosing this and infected the complainant with the virus. Mr Filitonga wasconvicted of causing grievous bodily harm to the complainant with reckless disregardfor his safety.13 He was also convicted of criminal nuisance by having unprotectedsex with the complainant knowing that this would endanger the complainant's life,safety or health. 14[13] This Court held the convictions could not stand. One reason was that if theyarose out of the same act of unprotected sex then s 46 applied:15[17] Accordingly, if the jury had concluded that both charges arose out ofthe same act of unprotected sex between Mr Filitonga and the complainant, it11 Filitonga v R [2017] NZCA 492.12 Human Immunodeficiency Virus.13 Crimes Act 1961, s 188(2).14 Section 145.15 Filitonga v R, above n 11.would not have been open for the Court to enter convictions on both chargeswithout infringing the rule against double jeopardy. In those circumstances,both offences would have arisen from the same facts. Applying theformulation in Rangitonga, a common punishable act was central to bothcharges. The common punishable act is having unprotected sex, whileknowingly HIV-positive, being reckless as to the consequences. This commonact founds both the grievous bodily harm charge (where, additionally, HIV istransmitted) and the criminal nuisance charge (where the transmission of HIVis the danger). It follows that a conviction on one of these offences wouldpreclude the proper entry of a conviction on the other.[14] Mr Hamlin submits Mr O'Reilly's case is the same in principle. There arecommon punishable acts (changing employment status and being absent from hisaddress). These acts found both sets of charges. Therefore, it would be a miscarriageof justice for the two convictions for breaching the ESO to stand.[15] We do not accept this submission. In our view, Woolford J was correct. Eachset of charges required proof of different omissions. The charges alleging breaches ofthe ESO required proof beyond reasonable doubt of omissions to gain prior approval.The charges alleging breach of the Child Protection Act required the police to provebeyond reasonable doubt omissions to report, after the events, the change ofemployment and the absences from the address. The change of employment and beingabsent from his address were not common punishable acts. The omissions were thepunishable acts and they were different.[16] These differences are not matters of law creating different offences. They arematters of fact forming elements of the offences. The ESO controls Mr O'Reilly'sability to choose a work environment and constrains him in his choice of residenceand absences therefrom. That is a measure to protect the public. TheChild Protection Act reporting provisions are for the purpose of informing the policeabout where Mr O'Reilly has chosen to work, where he has chosen to live, andabsences he has chosen to take from his residence. It is a monitoring measure.[17] In Filitonga, there were no factual differences in the two offences, only legalones (one charge focused on the effect of infection, the other on the danger of beinginfected).[18] The distinction is well illustrated by the analogy given by Ms Brook for theDepartment of Corrections. If a person driving a car is stopped by the police and it isfound the car has neither a warrant of fitness, nor is it registered, then without questionthe driver can be prosecuted for those omissions. The central fact of driving iscommon, but the omission in each case is entirely different. If one omission had notoccurred, then only the other offence could be charged. Similarly, if Mr O'Reilly hadbreached the ESO, but had within the requisite periods reported the matters to thepolice, then he could only face prosecution for breaching the ESO.Decision[19] We have decided there is no risk of a miscarriage of justice. Likewise, there isno matter of general or public importance to be argued.[20] Leave to appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent