RPM v THE COMMISSIONER OF POLICE [2018] NZHC 2198

RPM v THE COMMISSIONER OF POLICE [2018] NZHC 2198 [24 August 2018]ORDER PROHIBITING PUBLICATION OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPLICANTIN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV 2017-485-984[2018] NZHC 2198UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an Application for Judicial ReviewBETWEEN RPMApplicantAND THE COMMISSIONER OF POLICERespondentHearing: 13 December 2017 and 6 July 2018Counsel: D A Ewen and E Blincoe for ApplicantA Powell for RespondentJudgment: 24 August 2018JUDGMENT OF ELLIS J[1] Mr M seeks judicial review of his placement on the Child Sex OffenderRegister (CSO Register) following his release from prison in 2016. His principalcontention is that he is not caught by the retrospectivity provisions in the ChildProtection (Child Sex Offender Government Agency Registration) Act 2016(the CPSORA), although he also advances other grounds of review.[2] The parties are agreed that Mr M's name should continue to be suppressed.11 The Child Sex Offender Register (CSO Register) is not a public register. Because Mr M'squalifying offending was against a relative suppression may also be necessary to protect herBackground[3] On 11 December 2013, Mr M was sentenced in the District Court at Manukauto concurrent prison terms totalling two year and four months on charges of having asexual connection with a young person.2 Were that offence to be committed today,there is no doubt that it would qualify Mr M for registration under the CPSORA.[4] The expiry date for Mr M's sentence on the sexual connection charge was10 September 2015, over a year before the commencement of the CPSORA.[5] But on 30 April 2014, Mr M was sentenced to a further one year imprisonmenton three unrelated charges. The three unrelated charges did not involve sexualoffending against children or, indeed, sexual offending at all. That one year sentencewas imposed cumulatively on the sexual connection sentence. His sentence expirydate then fell to be determined in accordance with ss 75 and 82 of the Parole Act 2002(the PA).[6] Section 75 states:75 Cumulative sentences form a single notional sentence(1) If an offender is sentenced to a sentence of imprisonment (a latersentence) that is directed to be served cumulatively on anothersentence (an earlier sentence), the later sentence and the earliersentence form a notional single sentence for the purpose ofdetermining –(a) whether the offender is subject to a long-term sentence or ashort-term sentence; and(b) the non-parole period to apply when determining theoffender's parole eligibility date; and(c) the release date to apply when determining the offender'sstatutory release date.identity.2 It appears from the sentencing notes that the offending involved a 13-year-old relative and mayhave had "consensual" aspects.[7] And s 82(2) of the PA provides:The sentence expiry date of a notional single sentence is the sentence expirydate of the last sentence in the series of sentences that forms the notional singlesentence.[8] Under these provisions, Mr M's notional single sentence expired on10 September 2016, although his statutory release date was wrongly calculated as29 September 2016.3 On his release on that day, he was placed on special releaseconditions pursuant to section 18(2) of the PA. The release conditions expired on9 March 2017 (six months from his corrected release date).[9] On 14 October 2016, roughly a fortnight after Mr M's release, the CPSORAcame into force. Schedule 1 of the Act contained a clause retrospectively applying itsprovisions to persons who had committed a qualifying offence prior to thecommencement date. It defined the term "registrable offender" as including thosewho, on the commencement date, were:4(a) serving, in custody, the sentence of imprisonment that was imposedfor 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 supervisionorder following the sentence of imprisonment that was imposed forthat offence; or(d) subject to a public protection order or an interim detention orderfollowing the sentence of imprisonment that was imposed for thatoffence.[10] Under the CPSORA, the Commissioner of Police is responsible forestablishing and maintaining the Child Sex Offender Register (the CSO Register). Theinitial police view was that the retrospectivity clause was intended to and did "catch"those offenders (such as Mr M) who had been released from prison but remainedsubject to release conditions on 14 October 2016.3 Mr M is one of those prisoners to whom the Supreme Court's decision in Booth v R [2016] NZSC127, [2017] 1 NZLR 223 applies.4 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, sch 1 cl 1(1)[CPSORA].[11] Accordingly, shortly after the Act's commencement, two members of thepolice met with Mr M at his home. The purpose of the meeting was to gather theinformation required to be put on the CSO Register and to assess Mr M's surroundingsfor risk factors. Mr M's evidence was that he politely raised a question with them asto whether he was registrable at all. He says that he refused to sign the relevantdocuments. He was placed on the CSO Register anyway.[12] In the meantime, as a result of the Supreme Court's decision in Booth, theDepartment of Corrections (Corrections) was required to review its release datecalculations.5 In the course of that exercise Corrections also reviewed the applicationof the retrospectivity provisions of the CPSORA. The Department formed the viewthat those provisions did not capture individuals in Mr M's position, who were subjectto release conditions on the commencement date.6 At around the time that theCPSORA came into force, Corrections advised police of its view that not all personsserving "other form of conditional release from custody" met the criteria forregistration under cl 1.[13] On receipt of this advice, police reviewed all persons on the CSO Register whowere living in the community. Each was checked against the retrospectivity provisionsto confirm his or her registrability. This process identified 78 people who had beenplaced on the CSO Register who:(a) had been sentenced to imprisonment for longer than two-years;(b) had reached their statutory release date as at 14 October 2016;(c) had been released from prison; and(d) were subject to release conditions.5 The narrative that follows is taken from an affidavit sworn by Mr Mark Hutton, a Police employeewho is responsible for the Child Sex Offender Register (CSO Register).6 The phrase "serving, on parole or on release from custody on release conditions, the sentence ofimprisonment that was imposed for that offence" clearly did not include those offenders whoserelease expiry dates have passed because they are no longer "serving" the relevant sentence ofimprisonment.[14] Police determined that these people did not meet the criteria for retrospectiveregistration because, as at the date of commencement of the Act, they were not"serving their sentence of imprisonment". On around 23 November 2016, policewrote to all 78 of these people advising that they had been removed from the CSORegister.7 Mr M was one of these.[15] But on 8 March 2017, the Act was amended by the Child Protection (Child SexOffender Government Agency Registration) Amendment Act 2017 (the AmendmentAct). The Amendment Act was passed in a single day, under urgency. There was noprior consideration by a Select Committee.[16] Section 2 of the Amendment Act deemed it to have come in to force on thesame day as the CPSORA (14 October 2016). The Amendment Act amended cl 1 ofsch 1 so that it now provides: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 protectionorder 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.7 A further 29 persons were identified who had been placed on the CSO Register who had beensentenced to a term of imprison shorter than two-years, had reached their statutory release date asat 14 October 2016 and had been released from prison, but were still subject to release conditionson that day. Those people were also thought not to qualify for registration under the retrospectivecriteria and on 3 February 2017 were advised by Police that they had been removed from theregister.[17] Because of the addition of cl 1(e) those offenders who had served their sentencefor a qualifying offence but remained subject to release conditions on 14 October 2016were rendered eligible for registration.8 So a few days after the passage of theAmendment Act, Mr M was once again placed on the CSO Register. By that time thesentence expiry date for his notional single sentence had passed and his releaseconditions had expired. The term of the CSO registration is for the remainder of theMr M's life.9The (amended) application for review[18] Mr M sought judicial review of his (re)placement on the CSO Register. Thatapplication was adjourned part-heard in December 2017 to permit Mr M to amend hisclaim, which he did in May 2018. The hearing resumed in July 2018.[19] Mr M now seeks an order quashing the his (re)placement on the CSO Registerand a declaration that he is not liable to be registered under the Act (as amended) onthe grounds that:10(a) revocation of Mr M's placement on the CSO Register in 2016 is finaland is of continuing effect; or(b) the expiry date of Mr M's qualifying sentence was 10 September 2015any release conditions to which he was subject on 14 October 2016could not be said to "follow" the expiry of that sentence in terms ofcl 1(e) of sch 1; or8 I discuss whether there is any room for nuance in the meaning of cl 1(e) later, below.9 Because Mr M's qualifying offence was a "Class 3" offence: CSPORA s 35(1). The Commissionerhas a discretion to suspend Mr M's reporting obligations under s 36(2), if satisfied on reasonablegrounds that he does not pose a risk to the lives or sexual safety of one or more children, or ofchildren generally.10 A further ground based on the contention that Mr M was not properly subject to release conditionsat all because of the miscalculation of his release date was not, ultimately pursued before me.(c) by rendering him subsequently liable to registration, the sentenceimposed on Mr M in April 2014 has occasioned a breach of his right tobe free from double punishment such that that sentence should bequashed, with the effect that he was not properly the subject of releaseconditions on 14 October 2016 and not therefore eligible forregistration.[20] It is fair to say that it was the second of these grounds that was ultimatelypursued with the most vigour before me. Nonetheless, I address each in turn.Ground 1: initial removal from Register cannot be undone[21] This ground was squarely based on Faire J's earlier decision in AH vCommissioner of Police.11The decision in AH[22] AH had been convicted and sentenced for a qualifying offence in May 2014.Like Mr M, he had served his sentence but remained subject to release conditions on14 October 2016. Like Mr M, he was placed on the CSO Register.[23] Unlike Mr M, however, AH sought a review of his registration under s 49 ofthe CPSORA. On 7 November 2016, he applied to the Commissioner to have hisname removed from the register on the ground that he was neither serving a sentenceof imprisonment nor subject to any of the other qualifying matters referred to in sch 1of the CPSORA.[24] Apparently as a result of this application the Commissioner removed AH'sname from the Register on 23 November 2016.12 His release conditions expired on12 January 2016. But on 8 March 2017, following the passage of the Amendment Act,he was again placed on the CSO Register.11 AH v Commissioner of Police [2017] NZHC 930, [2017] NZAR 754.12 It may be observed, however, that this date appears to be the same date that everyone who wasin the same position as AH and Mr M was removed from the Register.[25] AH sought judicial review of his reregistration on the basis that while theAmendment Act validated any unlawful registrations that subsisted on 7 March 2017,it did not invalidate the previous revocation of his initial registration. AH argued thatthe Act should be strictly construed in light of the rules against double jeopardy andretrospectivity.[26] In quashing AH's (re)registration, Faire J said:13[28] Section 2 of the Child Protection (Child Sex Offender GovernmentAgency Registration) Amendment Act 2017 was enacted with acommencement date of 14 October 2016. It was clearly intended to beretrospective. The language used in s 2, namely "this Act is taken to have comeinto force on 14 October 2016", means exactly what it says. The amendmentis intended to apply from the commencement date of the Principal Act.[29] I accept that Parliament can retrospectively reverse decisions definingprivate rights. Further, it will not be assumed that a person will be deprivedof the fruits of a judgment by legislation without there being clear expression.Mr Powell submitted that the presumptions are not engaged at all because theremoval decision did not confer any rights on the applicant. However, theapplicant did exercise rights under s 49 of the Principal Act to challenge theoriginal decision to include him on the Register. The decision of theCommissioner of Police was in the applicant's favour, and he was removed.There are no provisions in the Amending Act that address circumstanceswhere a decision to remove under s 49 has already been made. There is noprovision that allows the Commissioner of Police to revisit that decision, noris there any provision that allows for the re-registration of the applicantfollowing a successful challenge to being placed on the Register. Parliamenthas simply not addressed the point. There is, therefore, no justification for theapplicant's current inclusion on the Register.[27] The difference here is that Mr M did not utilise the s 49 review procedure afterhe was placed on the CSO Register the first time.14 And if it was a merciful stretch toregard the granting of AH's s 49 application as a "judgment" the fruits of which hecould only have taken by express language, it is even more of a stretch to regard MrM's removal by way of an administrative act as engaging the "fruits of judgment"principle.13 (footnotes omitted).14 I record Mr Ewen's submission that the AH reasoning might apply to Mr M because he did protesthis registration to the police officers who attended on him in October 2016 ("albeit in mild terms").I am unable to accept that this suffices to engage the s 49 process.[28] Moreover, in reaching the conclusion he did, Faire J relied on the Court ofAppeal's decision Attorney-General v Spencer.15 The issue in that case was whetherthe relevant statutory amendment was retrospective at all. Declining to apply therelevant legislative amendment to Mrs Spencer (who already had the benefit of adecision in her favour under the earlier law) would by no means have deprived theamendment of all meaning; it would continue to have prospective effect.[29] By contrast, if this ground of Mr M's application for review were to prevailthen the relevant part of the Amendment Act (the addition of cl 1(e) to sch 1) wouldhave no effect at all. As the chronology above makes clear, all of those who werewrongly placed on the CSO Register in 2016, removed and then re-placed, would berequired again to be removed. The unfortunate fact of the matter is that (absent someother distinguishing feature) the amendment was, quite clearly, enacted precisely toinclude those such as Mr M within the CPSORA's ambit.Ground 2: a more rights consistent interpretation of cl 1(e)[30] The second ground of review raises a matter that does potentially serve todistinguish Mr M from those 77 others with whom he is in an otherwise materiallyidentical position. That is because unlike (at least most of) those others, the expirydate of his qualifying sentence had long since passed by 14 October 2016. There isno dispute that, had he been released on or before that expiry date his releaseconditions would also have expired and he would not have been "caught" by theamended retrospectivity provision. On one analysis, Mr M has been made subject tothe CPSORA only as a result of his conviction for a non-qualifying offence. That thereis an inherent inconsistency and unfairness in this result can best be demonstrated bynoting that had Mr M committed the qualifying offence with a co-offender who hadreceived exactly the same sentence (with a statutory release date of 10 September2015), his co-offender would not have been caught by the retrospectivity provision.15 Attorney-General v Spencer [2015] NZCA 143, [2015] 3 NZLR 449 at [83] – [86].[31] Mr Powell did not attempt to argue that the retrospective operation of theCPSORA does not run contrary to the right not to be punished twice for the sameoffence or that the breach could be justified.16[32] There is no dispute that provisions having retrospective effect should be strictlyconstrued. And where there is an apparent inconsistency between a statutory provisionand the New Zealand Bill of Rights 1990 (NZBORA) rights which cannot be justifiedin terms of s 5, then any tenable, rights consistent (or more rights consistent)interpretation must be preferred.17 So that is the question here. Can the relevantretrospectivity provision be interpreted in a more rights consistent way? Here, thatmeans a way that would exclude more people (or at least Mr M) from its ambit.[33] For convenience, I repeat the applicable part of sch 1 of the CPSORA againhere. It provides that the clause (and therefore the Act) applies to a person who, on 14October 2016, in respect of a qualifying offence, is—(e) no longer serving the sentence of imprisonment that was imposed forthat offence, but still subject to release conditions following thesentence expiry date of that sentence.[34] Mr Powell accepted that the relevant sentence expiry date for the purposes ofpara (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 myagreement with that position. The expiry date for "that" sentence, namely the sentenceimposed for the qualifying offence, cannot sensibly be interpreted as including theexpiry date of some other, notional, sentence.1816 The protection from double jeopardy is confirmed in s 26 of the New Zealand Bill of Rights Act1990. The unjustified inconsistency of a retrospective CPSORA regime with that right was notedin the Attorney-General's reports on the original Bills and the 2017 Amendment: ChristopherFinlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on theChild Protection (Child Sex Offender Register) Bill (6 May 2015) and Christopher FinlaysonReport of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the ChildProtection (Child Sex Offender Government Agency Registration) Amendment Bill (7 March2017).17 See Tipping J's discussion in Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [88] and following.18 And s 75 makes it clear that cumulative sentences form a single notional sentence only for thepurposes there specified, which do not include determining eligibility for registration under theCPSORA.[35] Notwithstanding that, however, it can hardly be disputed that Mr M was, on 14October 2016, "still subject to release conditions". The only possible interpretive issuetherefore relates to the meaning of the word "following". In that respect Mr Ewensubmitted that "following" must mean "immediately following". So, because therelease conditions were not imposed "immediately following" the expiry date of thequalifying sentence, Mr M is not "caught".[36] But Mr Powell said that "following" must simply mean at any time "after" theexpiry of qualifying sentence provided the release conditions were, at least in part,imposed as a result of the expiry of that sentence. In other words, if Mr M would nothave been subject to release conditions on 14 October 2016 "but for" his sentence forthe qualifying offence then those conditions have been imposed "following" the expiryof that sentence in the relevant sense. And indeed, in Mr M's case, certain of thespecial conditions imposed on his release clearly relate to the qualifying offence.19[37] That said, there is no danger that adopting Mr Ewen's interpretation wouldinvolve interpreting the provision in such a way which "nullifies it or is so inconsistentwith the statutory purpose as to do violence to its scheme".20 As noted earlier, that isbecause the retrospectivity provision would still apply to most if not all of the other77 offenders who were otherwise in a similar position to Mr M. Nor is it easy to seethat the "cut off" point is designed to achieve any specific purpose (beyond a generalpurpose of making more people subject to the CPSORA regime) which would beundermined by Mr M being found to fall on the other side of the line. As Mr Powellacknowledged, retrospectivity is, by its very nature, arbitrary in its operation.[38] Despite all this, I am unable to conclude that para (e) can tenably bear themeaning contended for by Mr Ewen. If "following" means "immediately following"that would effectively mean that Mr M was not subject to release conditions at all asa result of the expiry of his qualifying offence and (as I have said) that was plainly notso. In my view, the interpretation advanced by Mr Powell is the only tenable one here.19 For example, they included: (a) not to communicate directly or indirectly with the victim (b) tonotify his probation officer of any new, or changes to, any intimate relationships and (c) not tohave contact with any person under the age of 16 years unless another adult who has previouslybeen approved in writing is present.20 Zaoui v Attorney-General [2005] 1 NZLR 577 (CA) at [36].Ground 3: subsequent sentence in (retrospective) breach of NZBORA s 26[39] Given the undisputed NZBORA breaches involved in Mr M's case, Mr Ewensubmitted that the Court can (and should) fashion a remedy to vindicate the rights thathave been breached. And so, he invited me to quash the cumulative sentence imposedon the three 2014 charges. His reasoning was that any such quashing would,necessarily, be retrospective and would mean that Mr M could not have been lawfullysubject to release conditions on 14 October 2016, and would not have been an eligibleoffender under the CPSORA.21 Mr Ewen said that the question of sentencing couldthen be remitted back to the District Court, which could simply re-impose the samesentence as before.[40] Mr Ewen emphasised that the creation of such a novel remedy would have onlylimited effect. It would be available only in a case where a non-qualifying sentencearbitrarily results in an offender's eligibility for registration. There could be no suchremedy where eligibility arose from a sentence for a qualifying offence. Nor (he said)would such a remedy infringe the rule against collateral challenge; because heaccepted that the same sentence should be re-imposed by the District Court in duecourse, the only challenge was to the temporal effect of the original sentence, not toits duration.[41] I am unable to see that a remedy such as this is open to me. Mostfundamentally, Mr M's case on review is not predicated on any error by the sentencingJudge in the District Court. The fact that Mr Ewen seeks to have the same sentenceultimately re-imposed is telling in that respect. And it would, in my view, be whollyartificial to suggest that the District Court Judge erred "accidentally" because he hadnot appreciated the future effect on Mr M of some yet to be enacted law. That is whatdistinguishes the present from the cases relied on by Mr Ewen. For example, inAuckland District Court v Attorney-General the Attorney successfully applied forjudicial review of a District Court decision to enter a discharge without conviction.22The application for review was squarely based on errors made by the District CourtJudge in reaching that decision.21 Martin v Ryan [1990] 2 NZLR 209 (HC) at 240.22 Auckland District Court v Attorney-General [1993] 2 NZLR 355, (1992) 9 CRNZ 344 (CA).Conclusion[42] While I am not unsympathetic to Mr M's position, I have been unable todiscern a reviewable error in his case. While the application of the CPSORA regimeto him can certainly be criticised as a matter of principle, it appears to be preciselywhat the 2017 Amendment was designed to achieve.[43] The application for judicial review is dismissed accordingly.[44] Counsel are to advise whether there are issues as to costs, which wouldordinarily follow the event and be payable on a 2B basis._________________________Rebecca Ellis J