RPM v COMMISSIONER OF POLICE [2019] NZCA 279

RPM v COMMISSIONER OF POLICE [2019] NZCA 279 [4 July 2019]NOTE: ORDER MADE IN THE HIGH COURT ([2018] NZHC 2198)PROHIBITING PUBLICATION OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPELLANT REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA537/2018[2019] NZCA 279BETWEEN RPMAppellantAND COMMISSIONER OF POLICEFirst RespondentDISTRICT COURT AT MANUKAUSecond RespondentATTORNEY-GENERALThird RespondentHearing: 14 May 2019Court: Miller, Gilbert and Courtney JJCounsel: D A Ewen and E T Blincoe for AppellantA M Powell and L Dittrich for First and Third RespondentsNo appearance for Second RespondentJudgment: 4 July 2019 at 11 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] The question on this appeal is whether the appellant's name is properlyincluded on the Child Sex Offender Register (the Register). The answer turns onthe interpretation of the retrospectivity provisions in the Child Protection (Child SexOffender Government Agency Registration) Amendment Act 2017 (the AmendmentAct) which was passed under urgency in March 2017.[2] The High Court rejected the appellant's application for judicial review seekingan order quashing his placement on the Register by the first respondent,the Commissioner of Police.1 The appellant appeals. The second respondent abides.[3] Whether a person should be registered is determined solely by reference totheir status on 14 October 2016.Retrospectivity provision[4] Because of its central focus in the appeal, it is helpful to set out the amendedretrospectivity provision in full, although we note that the key provision is cl 1 (1)(e):1 Retrospective application(1) This clause applies to a person who, on 14 October 2016, is, in respectof a qualifying offence,—(a) serving, in custody, the sentence of imprisonment that wasimposed for that offence; or(b) serving, on parole or on release from custody on releaseconditions, the sentence of imprisonment that was imposedfor that offence; or(c) subject to an extended supervision order or an interimsupervision order following the sentence of imprisonment thatwas imposed for that offence; or(d) subject to a public protection order or an interim detentionorder following the sentence of imprisonment that wasimposed for that offence; or(e) no longer serving the sentence of imprisonment that wasimposed for that offence, but still subject to release conditionsfollowing the sentence expiry date of that sentence.1 RPM v Commissioner of Police [2018] NZHC 2198, [2018] NZFLR 751 [High Court judgment].The facts[5] On 11 December 2013 the appellant was sentenced to two years andfour months' imprisonment for sexual connection with a young person (Sentence A),a qualifying offence for the purposes of the Child Protection (Child Sex OffenderGovernment Registration) Act 2016 (the Act). The sentence expiry date of Sentence Awas 10 September 2015 and it is common ground the appellant ceased servingSentence A on that date. This was over a year before the Act came into force on14 October 2016.[6] The complication arises because, while in prison serving Sentence A,the appellant committed non-qualifying offences (escaping lawful custody, aggravatedinjury and receiving). He was sentenced for these offences on 30 April 2014 to12 months' imprisonment (Sentence B) to be served cumulatively with Sentence A.The sentence expiry date of the resulting notional single sentence was 10 September2016.[7] On his release from prison, the appellant was subject to release conditions forsix months. It is common ground that on 14 October 2016, the appellant was subjectto these release conditions and that they related in part to Sentence A.The key issue[8] The key issue is whether the second element of cl 1(1)(e) is satisfied, namelywhether on 14 October 2016 the appellant was "in respect of a qualifying offence"(Sentence A) "still subject to release conditions following the sentence expiry date ofthat sentence". The appellant contends that "following" must mean "immediatelyfollowing" the sentence expiry date of the sentence for the qualifying offending,Sentence A. He says there cannot be any hiatus between the expiry of the sentencefor the qualifying offending and any release conditions as occurred in his case(one year). The Commissioner argues that "following" simply means at any time afterthe expiry of the qualifying sentence (provided of course the release conditions wereat least in part imposed in respect of that sentence).High Court judgment[9] Ellis J found that the interpretation contended for by the appellant wasuntenable:[38] Despite all this, I am unable to conclude that para (e) can tenably bearthe meaning contended for by Mr Ewen. If "following" means "immediatelyfollowing" that would effectively mean that Mr M was not subject to releaseconditions at all as a result of the expiry of his qualifying offence and(as I have said) that was plainly not so. In my view, the interpretationadvanced by Mr Powell is the only tenable one here.Submissions on appeal[10] It is accepted that the consequences of registration on the Register involverestrictions on freedoms of association and movement that would ordinarily berestored to an offender upon completion of their sentence. For that reason,the retrospectivity provision offends s 26(2) of the New Zealand Bill of Rights Act1990 (BORA) which provides that no one who has been finally convicted of an offenceshall be tried or punished for it again.[11] Mr Ewen submits that both interpretations of "following" advanced by counsel("immediately following" and "at any time after") are available on the text ofthe statute. On that basis, he says the interpretation least inconsistent with BORA mustbe preferred, relying on Lindley LJ's statement in Lauri v Renad:2It is a fundamental rule of English law that no statute shall be construed so asto have a retrospective operation unless its language is such as plainly torequire such a construction; and the same rule involves another andsubordinate rule to the effect that a statute is not to be construed so as to havea greater retrospective operation than its language renders necessary.[12] Mr Ewen argues that the interpretation accepted by the High Court produces"baffling inconsistencies and arbitrary results" when assessed against other notionaloffenders in a similar position to the appellant. Elaborating on this submission,Mr Ewen says that if the appellant had still been in custody serving Sentence B on14 October 2016, he would not be susceptible to registration. The appellant would"no longer be serving [Sentence A]" and he would not be "subject to release conditions2 Lauri v Renad [1892] 3 Ch 402 (CA) at 421.following the sentence expiry date of that sentence". Mr Ewen describes this as a"truly perverse outcome". Similarly, if the appellant had not committedthe non-qualifying offences (which have no relevance to whether he should be onthe Register), he would have been released from prison on 10 September 2015 and hispost-release conditions would have expired six months later, on 10 March 2016.Again, the appellant would not have been caught by the retrospectivity provision.Mr Ewen makes the point that there is no material difference in the risk posed in eitherof these examples which could justify registration in one case but not in the other.[13] Mr Powell, for the Commissioner, acknowledges that an intention to legislateto abridge a fundamental right must be manifest in the words Parliament has used.However, if this is clear, s 4 of BORA confirms the Court's constitutional duty to giveeffect to it. If an enactment can be given a meaning consistent with BORA, thatmeaning must be preferred in terms of s 6. However, Mr Powell submits thatParliament's intention is manifest, and the interpretation contended for by Mr Ewen isnot textually or contextually available.[14] Mr Powell submits that if a BORA-consistent interpretation is not available,the Court should interpret the provision in accordance with usual principles ofstatutory interpretation examining the text in light of its purpose. He argues there isno licence under s 6 to search for a meaning that is less inconsistent with BORA assuggested by Tipping J in R v Hansen.3 Mr Powell contends the majority view is thatexpressed by Blanchard J:4If the words of the provision in their context are not capable of supporting adifferent and Bill of Rights-consistent meaning, s 4 requires the Court to giveeffect to the provision in accordance with its natural meaning notwithstandingthe resulting inconsistency with the Bill of Rights.Assessment[15] Mr Powell carefully traced the legislative history but it does not providematerial assistance other than to demonstrate two obvious points. First, Parliamentlegislated with full knowledge that it was doing so retrospectively in a manner3 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [92].4 At [60].inconsistent with s 26 of BORA. The Attorney-General drew Parliament's attentionto this inconsistency before the Act was passed and again before the Amendment Actwas passed but Parliament proceeded to legislate anyway. Secondly, the AmendmentAct was passed because it came to Parliament's attention that the Act had not reachedall child sex offenders it intended should be covered.[16] It is not suggested that any interpretation of the retrospectivity provision canbe found that is consistent with the rights and freedoms assured under BORA. We donot need to consider whether Mr Ewen's interpretation is less inconsistent with BORAand, if so, whether it should be preferred unless his interpretation is tenable. It istherefore logical to consider that question first.[17] We are not persuaded by Mr Ewen's argument that the interpretation contendedfor by the Commissioner produces arbitrary outcomes and therefore must be wrong.Any retrospective legislation defining its operation by reference to a person's statuson a particular date will inevitably be arbitrary and give rise to anomalous outcomes.[18] We can see no licence for reading in the word "immediately" before"following".5 The question is simply whether, in respect of a qualifying offence,the appellant was no longer serving the sentence of imprisonment for that offence butwas still subject to release conditions following the sentence expiry date of thatsentence. In agreement with Ellis J, we consider the answer is plainly "yes".The necessary nexus between the sentence for the qualifying offence and the releaseconditions is not disputed. On the critical date for assessment, 14 October 2016,the appellant was no longer serving that sentence (because the sentence expiry datefor that sentence had passed) but he was still subject to release conditions (followingthat sentence expiry date) and these conditions were imposed partly in respect of thatsentence. We consider Parliament's intention is plain and cannot be defeated byreading in the word "immediately" and thereby changing the scope of the provision.5 At [156], citing Quilter v Attorney-General [1998] 1 NZLR 523 (CA) at 572 and 581.Fall-back argument[19] Mr Ewen raised a fall-back argument in the event he did not prevail onthe interpretation issue. He contends the High Court can exercise its discretion onjudicial review to vindicate the breach of the appellant's rights under BORA byquashing Sentence B and remitting it back to the District Court for resentencing.Mr Ewen says this is "well within" the supervisory jurisdiction of the High Court.He relies particularly on the Supreme Court's decision in Attorney-General v Taylor.6[20] We reject this submission. There is no suggestion of any reviewable error inthe imposition of Sentence B by the District Court. Mr Ewen responsiblyacknowledges that the sentences imposed, viewed individually and collectively, areunimpeachable and involved no BORA breach. In these circumstances, there is nobasis on which the High Court could justify intervention on judicial review, quashthe sentence and remit the matter back to the District Court for re-sentencing.This would be a wholly inappropriate use of judicial power, designed solely to defeatParliament's intention.[21] For the reasons given, the appeal must be dismissed.Costs[22] The appellant is legally aided and there is no issue as to costs.Result[23] The appeal is dismissed.Solicitors:Ord Legal, Wellington for AppellantCrown Law Office Wellington, for First and Third Respondents6 Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213.