SHAUN HARLEY BENNET v NEW ZEALAND POLICE [2023] NZHC 1768

SHAUN HARLEY BENNET v NEW ZEALAND POLICE [2023] NZHC 1768 [7 July 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-000088CRI-2023-409-000089[2023] NZHC 1768BETWEEN SHAUN HARLEY BENNETAppellantAND NEW ZEALAND POLICERespondentHearing: 6 July 2023Appearances: R J J George for the AppellantG E R Alloway for the RespondentJudgment: 7 July 2023JUDGMENT OF GENDALL J[1] The appellant, Mr Shaun Bennet, is charged with three counts of breachingreporting requirements under the Child Protection (Child Sex Offender GovernmentAgency Registration) Act 2016.1 One of the charges relates to the allegation thatMr Bennet failed to report that he was generally residing at a new address.[2] This appeal raises a question of law. The question is: what does it mean to"generally reside" under s 16(1)(d) of the Act? That provision relates to therequirement for the appellant who is a registerable offender under the Act, to reportthe address of each of the premises at which he generally resides from time to time.1 Child Protection (Child Sex Offender Agency Registration) Act 2016, s 39 carries a maximumpenalty of one year's imprisonment and a fine of $2,000.[3] The pre-trial application in question which was before Judge Savage, in theChristchurch District Court, as I note sought a determination of the definition of"generally resides" for the purposes of the Act.[4] In an oral judgment dated 30 March 2023, Judge Savage held that "generallyresides", for the purposes of the Act, means residing at an address for at least two daysin a 12 month period. The Judge referred to this definition that he said can be foundin s 16(2)(a) of the Act. He considered the definition he adopted was consistent withthe legislative intent, that is, for those who are on the Child Sex Offender Register tobe under some degree of monitoring, and "for those in authority to have some controlor knowledge of their movements."[5] Mr Bennet appeals this pre-trial ruling on the ground that it was wrong in law.Mr Bennet also applies for leave to appeal the ruling. Mr Bailey, for the appellant,submits that s 16(2)—the section Judge Savage used to determine the definition of the"generally resides" phrase—is not a definitional section. Rather, Mr Bailey contends,the two-days in 12-month period test is merely a pre-requisite to when a registrableoffender can be said to generally reside at an address. Further, Mr Bailey suggestscase law from other contexts and the legislative drafting process support having adefinition of "generally residing" that attaches a degree of permanence to the concept.[6] Mr Alloway, for the respondent, opposes leave being granted on the basis thatsuch a pre-trial appeal was not provided for in the legislation and is contrary to thestreamlined process that judge-alone trials are intended to follow. For presentpurposes I will however grant leave to appeal Judge Savage's ruling. It does not affectthe ultimate outcome here.[7] As to the merits of the pre-trial ruling, the respondent contends Judge Savagewas correct that there is a definitional section here in s 16(2). He says the appealshould also be dismissed. Mr Alloway submits the use of the word "unless" in therelevant subsection creates a situation where an offender does generally reside at anaddress if they spend two days there in a 12-month period. This interpretation issupported by other provisions in the Act which demonstrate that s 16 is not aimed atestablishing the primary residence of an offender but simply any residence where theoffender stays so that the offender can be monitored and importantly any risk ofoffending can be mitigated.[8] I agree with the interpretation favoured by Judge Savage and the respondent.I do not consider this appeal has merit. No error can be found in the pre-trial rulingmade by Judge Savage.[9] Mr Bennet is charged with failing to comply with his reporting obligationswithout reasonable excuse under s 39 of the Act. Those reporting obligations are quiteextensive and are provided for in s 16 of the Act. Section 16(1)(d) names the followingas one piece of information that needs to be reported:(d) the address of each of the premises at which he or she generallyresides[10] Later in s 16, the Act specifically goes on to provide:(2) For the purposes of this section,—(a) a registrable offender does not generally reside at anyparticular premises unless he or she resides at those premisesfor at least 2 days (whether consecutive or not) in any periodof 12 months; [11] It is plain as I see it that the test for when a registrable offender is generallyresiding at an address for the purposes of s 16 was intended by the legislature to be theone provided for in s 16(2)(a) and that this was to be applicable to the reportingobligations described in s 16(1). The use of negative language in s 16(2)(a) as I see itdoes not change the definitional nature of the provision. The appellant's argument,that we must look to case law from other contexts to determine the definition of thephrase, is untenable in my view when the very section that places the obligation toreport also provides a meaning for the relevant phrase. As I note, subsection (2) makesclear that the definition that follows is to be applied "for the purposes of this section".The reporting obligations relating to residence under s 16 of the Act are triggered inaccordance with s 16(2)(a). That is, when a registrable offender resides for at leasttwo days at an address in a 12-month period. This is the interpretation that is consistentwith the clear scheme and purpose of the Act, it being to reduce the risk posed by childsex offenders, and to reduce sexual offending against child victims generally.[12] In my view, s 20 of the Act which outlines the requirement to report changesto relevant personal information including "a change in the premises or householdwhere the registerable offender or a child generally resides only on expiry of therelevant two day period." supports this conclusion as does s 21 requiring travel plansto be reported, too. It is clear the legislation requires the offender to report multipleaddresses being all the addresses at which they "generally reside" as set out in thedefinitional provision s 16(2).[13] Judge Savage made no error of law in his pre-trial ruling.Result[14] Leave to appeal is allowed. The appeal however is dismissed.Gendall JSolicitors:Andrew Bailey Barrister for the AppellantRaymond Donnelly & Co for the Respondent