W (CA642/2019) v NEW ZEALAND POLICE [2020] NZCA 58

W (CA642/2019) v NEW ZEALAND POLICE [2020] NZCA 58 [16 March 2020]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAMES,ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OFAPPLICANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA642/2019[2020] NZCA 58BETWEEN W (CA642/2019)ApplicantAND NEW ZEALAND POLICERespondentCourt: Collins, Simon France and Lang JJCounsel: M L Jepson for ApplicantC Ure for RespondentJudgment:(On the papers)16 March 2020 at 11.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is granted.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Mr W pleaded guilty in the District Court to two charges of indecent exposure,1eight charges (three of which were representative) of indecent communications withpersons under the age of 16 years,2 one charge of doing an indecent act in a public1 Summary Offences Act 1981, s 27(1).2 Crimes Act 1961, s 124A.place,3 and three charges of being in knowing possession of objectionablepublications.4[2] On 11 July 2019, Judge Bergseng sentenced Mr W to two years andtwo months' imprisonment.5 The fact that he received a sentence of imprisonmentresulted in Mr W being placed automatically on the Child Sex Offender Register(the Register) established under the Child Protection (Child Sex Offender GovernmentAgency Registration) Act 2016 (the Act).6[3] Mr W appealed his sentence. In a judgment delivered on 11 November 2019,Powell J allowed the appeal and sentenced Mr W to eight months' home detention.7The Judge also made an order under s 9(1) of the Act that he be placed on the Register.8Mr W seeks leave to advance a second appeal solely on the ground of the registrationorder.The offending[4] The incidents giving rise to the charges were set out in a lengthy and detailedsummary of facts. Given the decision we have reached it is not necessary to describethe incidents giving rise to the charges in any detail.[5] The offending took several forms. On three separate occasions Mr W exposedhis genitalia to young girls in public places. On three other occasions he showedindecent material stored on his cellphone to a total of 41 young girls in a fast foodrestaurant. On many occasions he filmed the girls' reactions. When the policesearched his computer, they found he had a large library of legal pornographicmaterial. In one folder, however, the police found three images depicting the genitaliaof pre-pubescent girls.3 Crimes Act, s 125.4 Films, Videos, and Publications Classification Act 1993, s 131A.5 Police v W [2019] NZDC 13584.6 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7(1)(a).7 W v Police [2019] NZHC 2933.8 At [43].[6] The qualifying offences that enabled the Judge to consider makingthe registration order were those of being in possession of objectionable material andengaging in indecent communications with young persons. The offences relating tothe incidents in which Mr W indecently exposed himself to young children are notqualifying offences.The proposed appeal[7] Section 237(2) of the Criminal Procedure Act 2011 permits leave to be grantedto bring a second appeal where the Court is satisfied the proposed appeal involvesa matter of general public importance, or alternatively, a miscarriage of justice hasoccurred or may occur unless the appeal is heard.[8] On Mr W's behalf Mr Jepson contends a miscarriage of justice will occur ifthe appeal is not heard because Powell J failed to undertake the mandatory assessmentunder s 9(2) of the Act to determine whether Mr W poses a risk to the sexual safety ofchildren. As a result, he had no jurisdiction to make the order placing Mr W onthe Register.[9] In addition, he seeks to argue the order was disproportionate and inappropriate.It will also effectively prevent Mr W from continuing with his chosen career inthe communications and information technology industries. This has been his lifecareer and represents his sole means of earning an income to support his wife andchildren.Decision[10] We acknowledge that although this would be a second appeal, it representsMr W's first, and probably only, opportunity to challenge the exercise of the HighCourt's discretion to place him on the Register. If leave is not granted, Mr W will bedenied that ability.[11] We also accept the Judge did not make any determination under s 9(2) thatMr W posed a risk to the sexual safety of children, other than concluding Mr W'soffending was serious.9 That was a prerequisite to the making of any order placingMr W on the Register. Failure to reach a decision on that issue could obviously resultin a miscarriage of justice.[12] We have considered whether we should undertake the determination unders 9(2) ourselves but have concluded this would not be appropriate.First, the assessment of the factors under s 9(3) is not entirely straightforward giventhe fact that some of the offences were not qualifying offences. Second, neithercounsel has provided submissions regarding those factors. It will therefore benecessary for that to be done at a substantive hearing.Result[13] The application for leave to bring a second appeal is granted.Solicitors:Crown Law Office, Wellington for Respondent.9 At [42].