W (CA642/2019) v NEW ZEALAND POLICE [2021] NZCA 326

REDACTED JUDGMENTW (CA642/2019) v NEW ZEALAND POLICE [2021] NZCA 326 [20 July 2021]NOTE: ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANYCOMPLAINANTS AND WITNESSES UNDER 18 YEARS PROHIBITED BYS 204 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: SUPPRESSION ORDERS MADE IN THE DISTRICT COURTREMAIN IN FORCE: [2019] NZDC 13584. PUBLICATION OF THEAPPELLANT'S NAME, ADDRESS AND OCCUPATION IS PROHIBITED.PUBLICATION OF THE NAME OF THE PRIMARY SCHOOL, SPORTSCLUB, RESTAURANT AND THE AQUATIC CENTRE IS PROHIBITED.REDACTIONS MADE IN ACCORDANCE WITH SUPPRESSION ORDERS.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA642/2019[2021] NZCA 326BETWEEN W (CA642/2019)AppellantAND NEW ZEALAND POLICERespondentHearing: 17 June 2021Court: Brown, Brewer and Davison JJCounsel: D J Allan for AppellantC Ure for RespondentJudgment: 20 July 2021 at 10.30 amJUDGMENT OF THE COURTA The applications of the appellant and respondent to adduce furtherevidence are declined.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] W pleaded guilty in the District Court to eight charges (three representative) ofindecent communications with persons under the age of 16 years1 and three chargesof being in knowing possession of objectionable publications.2 These are qualifyingoffences under the Child Protection (Child Sex Offender Government AgencyRegistration) Act 2016 (the Act).3[2] On 11 July 2019 he was sentenced to two years and two months'imprisonment.4 Because he was sentenced to imprisonment he was automaticallyplaced on the Child Sex Offender Register established under the Act.5 His appealagainst sentence was allowed in the High Court on 11 November 2019 and a sentenceof eight months' home detention was substituted.6 The High Court Judge made anorder under s 9(1) of the Act that W be placed on the Register.[3] Leave to bring a second appeal was granted on 16 March 2020, this Courtaccepting that the High Court Judge had not made a determination under s 9(2) of theAct that W posed a risk to the lives or sexual safety of children, which is a prerequisiteto a registration order.7 However the hearing of the appeal was deferred pendingdelivery by the Supreme Court of judgment in D (SC31/2019) v Police.81 Crimes Act 1961, s 124A.2 Films, Videos, and Publications Classification Act 1993, s 131A.3 They are class 1 offences: sch 2, cl 1. The appellant also pleaded guilty to two charges of indecentexposure and one charge of doing an indecent act in a public place which are not qualifyingoffences under the Act.4 Police v [W] [2019] NZDC 13584 [District Court judgment].5 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7(1)(a).6 W v Police [2019] NZHC 2933 [High Court judgment].7 W (CA642/2019) v Police [2020] NZCA 58 at [11].8 D (SC31/2019) v Police [2021] NZSC 2.The legislation[4] The purpose of the Act as explained in s 3 is to establish a Child Sex OffenderRegister that will reduce sexual reoffending against child victims and the risk posedby serious child sex offenders by:(a) providing government agencies with the information needed tomonitor child sex offenders in the community, including after thecompletion of the sentence; and(b) providing up-to-date information that assists the Police to morerapidly resolve cases of child sexual offending.[5] If a Court imposes on a person a non-custodial sentence in respect ofa conviction for a qualifying offence, the Court may order that the person be placedon the Register and must comply with the reporting obligations of the Act.9 Section 9provides further guidance for when to make such an order:(2) A court may make an order under this section (a registration order)only if the court is satisfied that the person poses a risk to the lives orsexual safety of 1 or more children, or of children generally.(3) For the purpose of assessing the risk posed by the person, the courtmust consider the following matters:(a) the seriousness of the qualifying offence:(b) the period of time that has elapsed since the offence wascommitted:(c) the age of the person:(d) the age of the person at the time of the offence:(e) the age of any victim of the offence at the time of the offence:(f) the difference in age between the victim and the person at thetime of the offence:(g) any written assessment of the risk posed by the person:(h) any submission or evidence from any victim of the offence:(i) any other submission or evidence relating to the risk posed bythe person:9 Child Protection (Child Sex Offender Government Agency Registration) Act, s 9(1).(j) any other matter that the court considers relevant.[6] In D (SC31/2019) a majority of the Supreme Court held that the exerciseundertaken by the Court when considering making a registration order is a two-stageprocess.10 First, the court must be satisfied that the offender poses a real or genuinerisk to the lives or sexual safety of a child or children generally.11 Second the courtmust be satisfied this risk is of sufficient gravity to justify the making of a registrationorder with the consequent impacts on the rights of the offender.12[7] If a registration order is made the registrable offender is required to report tothe police "relevant personal information" which comprises:13(a) his or her name, together with any other name by which he or she is,or has previously been, known:(b) in respect of each name other than his or her current name, the periodduring which he or she was known by that other name:(c) his or her date of birth:(d) the address of each of the premises at which he or she generallyresides or, if he or she does not generally reside at any particularpremises, the name of each of the localities in which he or she cangenerally be found:(e) the name, sex, and date of birth of each child who generally resides inthe same household as that in which the offender generally resides:(f) in respect of each child who generally resides in the same householdas that in which the offender generally resides, the name of theprincipal caregiver:(g) his or her postal address for service of notices and documents underthis Act:(h) if he or she is working,—(i) the nature of the work; and(ii) the name of his or her employer (if any); and(iii) the address of each of the premises at which the offendergenerally works or, if he or she does not generally work at any10 D (SC31/2019) v Police, above n 8, at [104] per Winkelmann CJ and O'Regan J and [260]per Glazebrook J.11 At [104]–[105].12 At [108].13 Child Protection (Child Sex Offender Government Agency Registration) Act, s 16(1).particular premises, the name of each of the localities at whichhe or she generally works:(i) details of his or her affiliation with any club or organisation that has achild membership or child participation in its activities, including anyonline club or organisation:(j) the make, model, colour, and registration number of any motor vehicleowned by, or generally driven by, the offender:(k) details of any tattoos, scars, or permanent distinguishing marks thathe or she has (including details of any tattoo or mark that has beenremoved):(l) if, at the time of making an initial report, he or she has 1 or more validpassports, the passport number, place of issue, and date of expiry ofeach passport:(m) details of any telecommunications service used, or intended to beused, by the offender, including—(i) the name of any landline or mobile telephone service providerused, or intended to be used, by the offender; and(ii) any phone numbers used, or intended to be used, by theoffender:(n) the name of any Internet service provider, and the details of anyrouting or modem device, used, or intended to be used, by theoffender:(o) details of any username for any online social networks, online gamingaccounts, or online storage accounts used, or intended to be used, bythe offender:(p) details of any website domain owned or website administered, orintended to be owned or administered, by the offender:(q) details of any email addresses used, or intended to be used, by theoffender.[8] A registrable offender must make an initial report,14 make annual reports,15report any changes to his or her relevant personal information,16 and report any travelplans.17 As the Supreme Court observed, a decision under s 9 to place someone on theregister is a binary decision. A judge has no discretion to place an offender on theregister for less than the eight years provided for in s 35(1)(d) or to excuse the person14 Section 17.15 Sections 18 and 19.16 Section 20.17 Sections 21–23.from compliance with reporting requirements which may not be relevant to theoffender's qualifying offences.18Applications to adduce further evidence[9] W sought to adduce as fresh evidence his affidavit dated 7 May 2021 whichwas said to be confined to updating the Court on his treatment progress and completionof the Safe Network programme. In fact the first two pages of the affidavit traversesmatters that were before the District Court at sentencing and hence are not fresh.The remainder of the affidavit focused upon the counselling steps which W had takensubsequent to his release from home detention.[10] This new material was intended to be advanced as qualifying under s 9(3)(i) asother evidence relating to the risk posed by W. In Mr Allan's written submissions forthe appellant the new material was juxtaposed with the submission that W had notfurther offended since the District Court sentencing in July 2019.[11] That contention appears to have prompted the respondent to seek to file anaffidavit from a constable concerning an incident in July 2020 in which W was allegedto have followed a young girl in a clothing shop. That in turn generated an affidavitin response from W providing his explanation of events. After hearing argument onthe cross applications we delivered an oral ruling declining to admit any of the furtherevidence, with reasons to be provided in this judgment.[12] The admission of updating evidence on appeals from registration orders wasconsidered by the Supreme Court in D (SC31/2019), both in respect of the assessmentof the risk posed by the offender and anonymisation of the offender's name. The Courtwas unanimous that updating evidence from the appellant's clinical psychologistshould be admitted on appeal as relevant to the issue of anonymisation. However therewere differences of view in respect of its relevance to the risk assessment.[13] While he had no difficulty with the admission of new evidence addressed tothe situation at the time of sentence, William Young J explained his reservations about18 D (SC31/2019) v Police, above n 8, at [25].the receipt on appeal of reports that assessed the risk posed by an appellant subsequentto sentencing. He made the point that the appeal court's focus is on whether there wasan error in the sentence imposed.19 A diminishing level of risk over time does notimply that lower court made such an error.20 Glazebrook J also had reservations as towhether it was legitimate in the context of the Act to assess risk by reference to therisk an appellant poses not at the time of sentencing but at the time of appeal.She noted the even when the risk level changes the Act (mostly) does not provide fora review of registration orders.21[14] Although the majority had regard to the updating psychologist's report on bothissues, they were not required to rule on whether updating evidence should generallybe admitted on appeal for the assessment of risk, stating:22We do not think it is necessary to address that issue in the present case, giventhat it was common ground that Dr Rogers' reports were relevant to theassessment of risk. Counsel for the respondent expressly recorded in his oralsubmissions that the respondent did not object to the Court considering thisevidence as updating evidence of risk. The case was argued on the basis thatthe updating evidence was relevant in that context, as it had been in the Courtof Appeal. The respondent did not challenge the decisions of both theHigh Court and Court of Appeal to take into account the updating reportsprovided by Dr Rogers in those Courts. We have therefore taken into accountthe reports of Dr Rogers not only in relation to the anonymisation issue, butalso in relation to the risk assessment exercise.[15] The post-sentence developments in the present appeal serve to place flesh onthe bones of the reservations expressed by William Young and Glazebrook JJ.The purpose of W's May affidavit was to suggest that the risk he posed had diminishedsince sentencing. Believing that there was evidence to counter that implication andthe explicit submission that W had not further offended, the police sought to adduceevidence (albeit hearsay evidence via the constable) of allegations of W's conduct ina public place soon after his release from home detention. If received, that evidenceand W's explanation in response would place this Court in the invidious situation ofendeavouring to determine conflicting versions of events since sentencing.19 Criminal Procedure Act 2011, s 250(2).20 D (SC31/2019) v Police, above n 8, at [305]–[309].21 At [262].22 At [41] per Winkelmann CJ and O'Regan J. At [159] Ellen France J recorded her view that it wasappropriate in that case to take into account the reports of the psychologist on both issues.[16] The potential for such a scenario occurring is heightened by the length of timewhich elapses between the original sentencing and the hearing of appeals. That wasexacerbated in the present case by the deferment of the appeal hearing pendingdelivery of judgment in D (SC31/2019). In the particular circumstances of this casewe find the reservations of William Young and Glazebrook JJ persuasive, particularlyin light of s 9(4) of the Act which states a registration order is required to be made atthe time of sentencing.[17] However if, notwithstanding the explanation of the majority's approach,D (SC31/2019) is intended to be read as binding authority that evidence of matterssubsequent to sentencing may be received on appeal on the issue of risk assessment,we nevertheless consider the applications should be declined. The part of W's Mayaffidavit which is new, in that it refers to his activities subsequent to his release fromhome detention, is not cogent on the risk assessment issue in the absence of evidenceof a suitably qualified professional as to its significance and potential implications.Furthermore it would not be realistic in our view to accept W's first new affidavit butto decline to receive the other material. But to accept the evidence concerning W'salleged 2020 conduct would likely necessitate a further hearing, possibly withcross-examination.[18] For these reasons the applications to adduce further evidence on appealwere declined.The first stage: section 9(2)[19] In D (SC31/2019) the s 9(2) assessment — whether the person poses a risk tothe lives or sexual safety of children — was described as a threshold.The Supreme Court declined to adopt High Court authority that suggested this riskmust be more than a real and genuine risk.23[20] Mr Allan conceded that the s 9(2) threshold was met in respect of the eightcharges under s 124A of the Crimes Act 1961. He did not accept that the thresholdwould have been crossed if the only charges the appellant had faced were those relatingto knowing possession of objectionable publications.23 At [105], citing Fowler v R [2017] NZHC 1892 at [30].[21] In our view Mr Allan's concession in respect of the s 124A charges was anappropriate one in the circumstances. However, it being accepted that the threshold iscrossed, the objectionable publication charges are not excluded from consideration atthe second stage. Indeed they assume significance in the context of the review of thescope of the s 16(1) reporting obligations.The second stage: the discretion to make a registration order[22] As the majority explained in D (SC31/2019):[106] If the threshold has been met, the second stage is whether thediscretion to make a registration order under s 9(1) should be exercised havingregard to the level of risk posed by the offender. In order to embark on thatassessment, the court must assess the nature and seriousness of the risk posedby the offender.[108] Once a judge has determined the nature and seriousness of the riskposed by the offender, he or she must then determine whether that risk issufficient to warrant the making of a registration order and subjecting theoffender to the requirements of the Registration Act. That assessment willinvolve a balancing of the protective objectives of the registration orderagainst the level of intrusion into the rights of the offender.(Footnotes omitted.)Nature and seriousness of the risk posed by W[23] We begin by addressing the s 9(3) factors.The seriousness of the qualifying offences24[24] The circumstances of the relevant offending detailed in an extensive agreedsummary of facts were succinctly summarised in the sentencing notes ofJudge Bergseng as follows:25[5] The charges of indecently communicating with a young person arisein the context of your visits to a restaurant in Auckland. Over a period ofapproximately 15 days, on three occasions you visited that restaurant. It isa well known restaurant that has children as its main focus. You spent justover 21 hours at that restaurant, and that is 21 hours in the children'splayground area. Each of the incidents occurred at the children's playground24 Section 9(3)(a).25 District Court judgment, above n 4.[redacted]. The play area is limited to the use by children aged between threeand 10 years.[6] To enable your offending you used two mobile phones held in thesame phone case. The first phone appeared to be innocuous and you are seento be looking at that phone, the point being to divert other adults' attentionfrom your true activities. The second phone was held at an angle so that onlya person standing to the right of and below you would be able to observe whatwas on the screen. The second phone had a privacy device over its screen toprevent anyone not directly in front of it from viewing the images displayed.That device is known as a Privacy Screen Protector. You used the secondphone to continuously play a variety of pornographic videos and images thatwould only be seen by your intended victims.[7] You targeted young girls between the ages of three and nine years ofage. [Redacted].[8] You were holding the second phone with your left hand at such anangle that the pornographic videos would be displayed to your intendedvictim. At the same time as you were doing this you had secreted up your leftsleeve, a video camera which was then used to record the reactions of theyoung children that you had shown the pornography to.[9] There are 41 victims from this restaurant.[12] When complaints were made to the police as a result of what tookplace at the restaurant you were identified. A search warrant was executedat your address. In the course of that search a large number of computer-baseditems were located and seized. Objectionable material was found on some ofthose devices. There were three objectionable images. They were classifiedas child sexualised posing. The three images showed prepubescent vaginas.[25] [Redacted]. None of the victims of the offending were known to W.[26] Mr Allan emphasised that the offending involved no contact, grooming,texting, phone calls, social media messages, emails or any type of computer use.He also described the offending as unusual and completely out of character. W'sObsessive Compulsive Disorder (OCD) type behaviour was described as havingbriefly changed from cataloguing and storing age appropriate adult pornography tocommitting the s 124A offending over a period of no more than three days. There wasno pattern of use of child pornography, making this case distinguishable from otherslike D (SC31/2019) and Praditsin v New Zealand Customs Service which featured anentrenched pattern of using child pornography.26 The offending was said to have26 [D] v Police [2019] NZCA 30, [2019] 2 NZLR 778 at [36]; and Praditsin v New Zealand CustomsService [2018] NZHC 48 at [45].occurred against a background of prolonged life, work place and marital stressexplained in W's affidavit of 10 April 2019 before the District Court.[27] Ms Ure for the respondent submitted the offending could only properly becharacterised as serious having regard to its breadth and the high level of premeditationinvolved. The argument that the offending was "non-contact" and did not involvegrooming was not mitigating and did not reduce the seriousness of the offending.Ms Ure made the point that if offending of that nature had been committed thenimprisonment would almost inevitably have resulted and hence registration would beautomatic. She drew attention to the fact that the global starting point of two yearsand nine months' imprisonment adopted in the District Court for the indecentcommunications offending was upheld on appeal, noting that the High Court describedthe offending as "clearly serious and disquieting".27The period of time since the offending28[28] The relevant offending occurred in July 2018 and W's sentencing in theDistrict Court took place one year later.Ages of offender and victims29[29] W was born in September 1969. He was 48 at the time of the relevantoffending and 49 at sentencing.[30] The few identified victims of the indecent communication offending were agedbetween three and ten years, an age difference of some 38 to 45 years. The ages ofthe victims who are the children in the three objectionable images are unknown.Written assessment of risk posed by W30[31] Three risk assessments were available at sentencing. The first, a Safe NetworkAdult Risk Assessment Report dated 18 February 2019, was largely prepared as a27 High Court judgment, above n 6, at [22].28 Section 9(3)(b).29 Section 9(3)(c)–(f).30 Section 9(3)(g).result of self-reporting. It recorded that its structured clinical summary should betreated with caution. It contained a prediction of W as being at low risk of engagingin harmful sexual behaviour at that time.[32] The second, a psychologist's report prepared by Renate Bellve-Wack dated14 March 2019, assessed W's personality profile and confirmed he had a moderatecase of OCD. In particular the psychologist stated:127. The severity and impact of [W's] sexual offending have beencomparably low and it has been time limited, not least because [W]appears to have wanted to be caught.128. [W's] risk for sexual reoffending appears low. His score on anactuarial risk measure the STATIC 99-R puts him into the low-riskcategory of sex offenders. While the STATIC-99 is only a roughmeasure as it takes into account all types of sex offenders, other moredetailed risk assessments have been conducted by SAFE and I agreewith their findings.[33] In the Provision of Advice to Courts (PAC) report the author concluded that Wminimised the sexual motivation of his offending, noting the explanation for theoffending being that it was a technical challenge to him utilising his IT skills. Thereport recommended imprisonment despite the fact that W was a first time offender.[34] While Mr Allan pointed to the assessments of the risk of reoffending as beinglow, Ms Ure emphasised that those risk assessments were prepared largely based onthe appellant's self-reporting and were not the result of sustained or in-depthassessment. She submitted that W's explanations for his offending were not credibleand that his persistent minimisation of the offending indicated that his self-reportingwas questionable.Submission or evidence from any victims of the offences31[35] Although there were 41 victims of the restaurant offending, the identity ofmany of them is unknown. There were however victim impact statements from the31 Section 9(3)(h).mothers of four of the young girls, the essence of which is captured inJudge Bergseng's summary:32[17] There are a number of victim impact statements, and two of theparents of your victims have read their victim impact statements in Courttoday. It cannot be ignored the impact that this offending has clearly had onall of your victims that have been identified. That was readily apparent as thetwo mothers read, as best they could, just how your offending has impactednot only on their daughters but on their wider family.[18] While we have a number of identified victims where the parents areaware of the offending, and have been able to assist their children to come toterms with what has happened, we have numerous victims who have neverbeen identified, likely never will be identified, who will be struggling in theirown ways trying to come to terms with what has happened to them. Theirparents do not know what has happened, so they are disadvantaged in termsof how they cope with what has happened as they grow up.[19] Going through the victim impact statements they record such thingsas you have robbed their daughter of her innocence, as one mother notes, shehas been faced with having to explain things that she did not contemplatehaving to address until her daughter was much older, and much more mature.That particular victim, who read her victim impact statement in Court, madethe observation, that as recently as two to three weeks ago her daughter hasmade a more explicit disclosure to her aunty. She did not want to make thedisclosure to her own parents, but she disclosed that she keeps rememberingthe pornographic imagery shown to her. One of the telling submissions I heardwas that the targeting of children is something that has really impacted on thisparticular victim. As a mother she worries more about her children's safety.She has restricted the level of freedom that they previously had.[20] Another victim impact statement notes that the incident has made her,as a mother, more wary of men around her daughter, her trust and theassumption that her daughter will be safe, in this case in the schoolplayground, has been lost. She is nervous when her children are out and aboutin a public place. Another mother notes that your offending has changed theway her family operate. They are more wary of strangers. They no longergive their children the same level of freedom that they previously allowed.She finds that she is now stressed when out and about in public places, placesthat she assumed her child would be safe are no longer considered to be safe.[21] She notes that her daughter is more scared and nervous aroundstrangers. She has lost a degree of her confidence. She no longer sleeps alone.As parents they have had to have discussions with their daughter about sexualmatters that in their view she was way too young for. Another victim [of] theoffending has noted the impact on her children has been a loss of confidencein public places. As a mother she has to be extra vigilant. While that bringsits own additional stresses she finds the offending has been traumatising. Herwhole view about just how safe New Zealand is has been changed.[36] [Redacted].32 District Court judgment, above n 4.Our assessment of the risk posed by W[37] While we acknowledge the points made by Mr Allan about the non-contactnature of W's conduct,33 the s 124A offending nevertheless involved numerous youngchildren in a public setting. Considered in context, the conduct must be viewed asserious for several reasons.[38] First, it involved a significant degree of premeditation which enabled theactivity to be undertaken in a covert manner. As Ms Belve-Wack commented:[W] created a sophisticated method for exposing children to sexual images,using his IT skills. The technical challenge involved in this allowed [W] toresurrect a sense of professional competence. Also, in focusing on thetechnical challenge to achieve a sense of control and mastery [W] might havebeen able to minimise in his own mind the sexual aspect of his actions makingthose more acceptable.[39] That is to be contrasted with the observation in the PAC report that W refusedto accept that his offending was pre-planned. Indeed W was recorded as claiming thathis offending was impulsive and just happened on the day. That does not sitcomfortably with the fact that the public venue offending occurred over three days.[40] Secondly, in our view W's statement to Ms Belve-Wack that he probablywanted to get caught was disingenuous given the sophistication of his endeavours.It is difficult to reconcile the proposition that W wanted to be caught with hisexplanation in the February 2019 Safe Network report:[W] asserted that he did not want to shock or harm his victims, but "wanted toinform, educate, and show sexual activity in a positive light". He stated thatby showing the pornographic videos to the girls he was achieving somethinglike a "technical goal" that is difficult to do, and denied that it was sexuallyarousing.[41] We are unable to agree with Ms Belve-Wack's description of the severity andimpact of the sexual offending as being "comparably low". With reference to herdescription of the offending as "time limited", it should not be overlooked that theepisodes on the three days were of three, seven and eight hours duration and involved41 victims.33 At [26] above.[42] [Redacted].[43] In forming our assessment we have had regard only to the qualifying offencesand not to the other offences to which W pleaded guilty. However in the evaluationof risk we consider that it is appropriate to note that, subsequent to the counselling andinteractions with and assessments conducted by Safe facilitators and psychologists,while on bail pending sentence in the District Court W reoffended by indecentlyexposing himself in a public place, a public swimming pool, the victim being a younggirl. We agree with Ms Ure's submission that, although not qualifying offending forthe purposes of the Act, such offending on bail prior to sentencing tends to underminethe "low risk" assessments recorded a few months earlier.[44] Such offending while on bail serves to reinforce Ms Belve-Wack's assessmentof W as having a mixed personality disorder with avoidant and obsessive compulsivefeatures of moderate intensity. She made the significant point that compulsivity is themost prominent aspect of W's OCD, for which treatment is particularly important asthat compulsivity is now also linked to sexual offending.[45] The combination of the particular nature of the qualifying offending, W'sexplanations for it, his diagnosed compulsivity and the recognition that it is linked tosexual offending precludes our viewing the risk which he poses to the sexual safety offemale children generally as low. Weighing all the s 9(3) factors, we assess the riskW poses as significant.Should a registration order be made?[46] The exercise of the discretion to make a registration order involves the questionof whether the imposition of an order is a proportionate response to the risk identifiedhaving regard to the intrusion on the appellant's rights that this will involve.34 As theSupreme Court observed:35Section 9 should be interpreted in accordance with the direction in s 6 of theBill of Rights. That requires the power to make a registration order conferredby that section to be exercised consistently with the Bill of Rights to the extent34 D (SC31/2019) v Police, above n 8, at [129].35 At [101].possible: the level of risk that the offender poses must be of sufficient gravityto justify the making of a registration order with the consequent impacts onthe rights of the offender. We do not consider any more complex an analysisis required to ensure that s 6 of the Bill of Rights is applied in the interpretationof s 9 and the exercise of the power conferred by it.W's submissions[47] Mr Allan's written submissions made reference to a growing body ofinternational literature on the low efficacy rates and the paradoxical, chilling andisolating effects which registration has on registrable offenders. He noted in particulara recent article by Kris Gledhill suggesting that the range of relevant personalinformation in s 16 might be described as Orwellian.36[48] However Mr Allan rejected Ms Ure's suggestion that W had not accepted thatany of the s 16 requirements were relevant to him. Indeed, in response to a questionfrom the Bench, he indicated agreement with the view of Glazebrook J that some ofthose requirements are not particularly onerous,37 referring specifically to details ofresidential address, place of work and motor vehicle description.[49] Mr Allan's first primary submission was that, while some information maychange over time, the primary information about an offender is all known to theinvestigative authorities already. This includes modus operandi, previous convictionsand the details of the instant offending. He maintained that the Department ofCorrections would have already shared W's personal details with the Police, Work andIncome and other agencies. Hence it was said that the level of intrusion into W'sprivacy which compliance with s 16 would require did not serve a useful purposeunder the Act.[50] The answer to that submission, which assumes a constant informedinstitutional memory, is that information about modus operandi and past offending isnot the type of information which s 16 requires. The Act is future looking, its purposebeing to reduce sexual reoffending. Accordingly, paras (a) to (d) and (h) to (l) relate36 Khris Gledhill "Legislation Note: The Child Protection (Child Sex Offender GovernmentRegistration) Act 2016" [2017] NZCLR 267 at 270.37 D (SC31/2019) v Police, above n 8, at [263] per Glazebrook J. She referred to the intrusion onthe appellant's rights being relatively limited given that the Register is not public and therequirements are largely reporting requirements meaning some relatively minor inconveniences.to identifying particulars and the current locality of the offender. Provision is made ins 43(1) for specified government agencies to share the information on the Register forthe purpose of monitoring the whereabouts of registered offenders, verifying theirpersonal information and managing the risk that they may commit further sexualoffences against children and managing any risk or threat to public safety. The usersof the Register are investigative authorities. The fact that the Register is not publicmeans, as the Supreme Court noted in D (SC31/2019), the intrusion into the right toprivacy is less significant.38[51] Moreover, some of the information in s 16 is clearly useful. Paragraphs (e) and(f) concern children who reside in the same household as the offender, and (i) concernsaffiliation with clubs or organisations that have child membership or participation.As Glazebrook J observed, the presence of children in a household where a convictedsex offender resides or at any organisation in which an offender is involved is anobvious issue.39 [Redacted].[52] The second primary submission for W, and in Mr Allan's words the essence ofthe appeal, was that the level of intrusion that the requirements of s 16(1)(m) to (q)would impose would be severe for W because such provisions are particularly onerousfor people seeking work or already working in senior technical IT roles.[53] Mr Allan submitted that W's employability as a highly skilled person in the ITfield is a protective factor which would assist to further lower his risk long term.However working in IT while subject to a registration order would necessitate thereporting of details of ISPs, routers, computers and mobile phones, possibly requiringmultiple reports to the Commissioner of Police per day or even per hour. This wouldalso breach the employer's right to privacy and rapidly compromise W's namesuppression. Hence, whereas such requirements would not raise the same concerns ifW was for example a drainlayer, Mr Allan argued that it would be untenable for W towork in his specialised field of work in IT if subject to the s 16(1)(m) to (q) reportingrequirements.38 At [92] per Winkelmann CJ and O'Regan J.39 At [263].[54] Mr Allan developed the argument by reference to s 28 of the New Zealand Billof Rights Act 1990 (NZBORA) which he says acknowledges the existence of rightsnot expressly referred to in NZBORA. Specifically he relied upon rights relating towork in the International Covenant on Economic, Social and Cultural Rights(the ICESCR).40[55] Articles 6 and 7 of the ICESCR provide:Article 61. The States Parties to the present Covenant recognize the right to work,which includes the right of everyone to the opportunity to gain his living bywork which he freely chooses or accepts, and will take appropriate steps tosafeguard this right.2. The steps to be taken by a State Party to the present Covenant toachieve the full realization of this right shall include technical and vocationalguidance and training programs, policies and techniques to achieve steadyeconomic, social and cultural development and full and productiveemployment under conditions safeguarding fundamental political andeconomic freedoms to the individual.Article 7The States Parties to the present Covenant recognize the right of everyone tothe enjoyment of just and favourable conditions of work which ensure, inparticular:(a) Remuneration which provides all workers, as a minimum, with:(i) Fair wages and equal remuneration for work of equal valuewithout distinction of any kind, in particular women being guaranteedconditions of work not inferior to those enjoyed by men, with equalpay for equal work;(ii) A decent living for themselves and their families inaccordance with the provisions of the present Covenant;(b) Safe and healthy working conditions;(c) Equal opportunity for everyone to be promoted in his employment toan appropriate higher level, subject to no considerations other than those ofseniority and competence;(d) Rest, leisure and reasonable limitation of working hours and periodicholidays with pay, as well as remuneration for public holidays.(Emphasis added.)40 International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened forsignature 19 December 1966, entered into force 3 January 1976).[56] Mr Allan recognised that the ICESCR rights did not fall for consideration inD (SC31/2019). However he submitted that, adopting an analogous approach to themajority of the Supreme Court, W's claimed low level of risk is not of sufficientgravity to justify the making of a registration order having regard to his NZBORArights together with the unincorporated ICESCR rights to gain his living by work hefreely chooses and to have safe and just conditions of work.Police submissions[57] Ms Ure's first rejoinder was that, to the extent re-employment might be moredifficult (although noting there was no evidence of any attempts to regainemployment), that would likely be a natural consequence of W's offending andconvictions rather than the result of registration. We are not persuaded by thatargument. The reporting requirements in at least s 16(1)(m), (n), (p) and (q) are notconfined to an offender's personal or social activities. We consider that there is a reallikelihood that potential employers would be deterred by the inclusion of their businessIT details in the information for inclusion on the Register.[58] Ms Ure further submitted that the purpose of the legislation is the protection ofchildren and is not focused on the impact on the offender. The former proposition isundoubtedly correct but, as the Supreme Court recognised, s 16 reports are asignificant intrusion on the privacy of registered offenders.41 Moreover, s 6 ofNZBORA requires the power to make a registration order to be exercised consistentlywith an offender's NZBORA rights to the extent possible.42 This led to the majority'sconclusion that the discretion to make a registration order involves a balancing of theprotective objectives of the Act with the rights of the offender.43[59] It was also suggested by Ms Ure that W is attempting to establish a class ofpersons who would be immune from registration by virtue of their employment, anapproach that would potentially subvert the effect of the legislation. It certainly mightappear somewhat perverse that an IT professional, who relevantly offended by usinghis training and expertise, might avoid compliance with s 16 while an IT-skilled41 D (SC31/2019) v Police, above n 8, at [92] per Winkelmann CJ and O'Regan J.42 At [101] per Winkelmann CJ and O'Regan J.43 At [108] per Winkelmann CJ and O'Regan J.amateur, for example the hypothetical drainlayer, who similarly offended would besubject to the s 16 requirements. However from the perspective of the right to workthe drainlayer would be relatively unaffected by the particular IT reportingrequirements.Discussion[60] As mentioned above,44 the "essence" of the appeal is said to be the intrusion ofsome of the reporting obligations on W's ability to work in the IT sector and thereforehis "right to work" as articulated in arts 6 and 7 of the ICESCR.[61] Various articles in the ICESCR only require a State to "recognise" the relevantrights. Such provisions, which include arts 6 and 7, are described by James Crawfordas "programmatic and promotional".45 In addition, a State's overall obligation is onlyto take appropriate steps with a view to progressively realise the rights recognised inthe covenant.46 The ICESCR can be contrasted with the International Covenant onCivil and Political Rights (the ICCPR) which is more specific in its delineation ofrights and stronger in its statement of State obligations.47 This difference insignificance is reflected in New Zealand: the long title of NZBORA affirmsNew Zealand's commitment to the ICCPR, but not to the ICESCR.[62] As Paul Roth explains in International Human Rights Law in Aotearoa NewZealand the jurisprudence and ICESCR commentary on the right to work have largelydeveloped around two negative rights: the right to be free from forced or compulsorylabour (since that is not work which one freely chooses or accepts) and the right notto lose one's employment unfairly or arbitrarily.48 With reference to the latter Rothnotes that the 1982 International Labour Organisation's Convention concerningTermination of Employment at the Initiative of the Employer sets out the basic44 At [52]–[56] above.45 James Crawford Brownlie's Principles of Public International Law (9th ed, Oxford UniversityPress, Oxford, 2019) at [29.3(A)(i)].46 International Covenant on Economic, Social and Cultural Rights, art 2(1).47 Crawford, above n 45, at [29.3(A)(i)].48 Paul Roth "Economic Rights: Workplace Rights and the Right to Social Security" in MargaretBedggood, Kris Gledhill and Ian McIntosh (eds) International Human Rights Law in AotearoaNew Zealand (Thomson Reuters, Wellington, 2017) 611 at [13.3.01].international standards49 but it has not been ratified by New Zealand.50 Ratheremployment protection is governed by legislation that covers such matters asunjustified dismissal.51[63] Of course the present case does not involve scrutiny of an employer's conductbut rather a legislative intervention intended to provide a protective mechanismconcerning behaviour of a person unrelated to their actual or potential employment.We were not cited any authority addressing the implications of the right to work in ananalogous situation, nor have our own researches identified any relevant analysis.For the purposes of the present appeal we proceed on the basis that an entitlement toseek work in order to provide living for oneself and one's dependents is a right whichshould be recognised as a consideration in the balancing exercise of the second stagediscretion.[64] The considerations which particularly weigh in our assessment of the balancingexercise are:(a) The purpose of the Act is to reduce sexual reoffending against childvictims by the technique of a register of information concerning knownoffenders.(b) The Register is not a public register. Hence the degree of intrusion onthe rights of an offender is correspondingly less significant.(c) The Court has no discretion to require compliance with some reportingrequirements in s 16 but not others. It is an all or nothing obligation.As the majority in D (SC31/2019) observed:52[111] We acknowledge that where (as in the present case)the offences are limited to viewing material on the internetand no actual interaction with children has occurred, it isarguable that some of the requirements set out in s 16 may beof limited utility in assisting with any monitoring of theoffender. To the extent the authorities endeavour to monitor49 At [13.3.03(1)].50 At [13.3.03(2)].51 Employment Relations Act 2000, s 103(1)(a).52 D (SC31/2019) v Police, above n 8.these matters, it could be regarded as wasted effort, as notedby the Supreme Court of the United Kingdom. However, thatis the nature of the statutory regime. The assessment of theextent of the intrusion into the rights of the offender will beaffected by the fact that there is no flexibility in the orders thatcan be made.(Footnote omitted.)(d) The present case is the antithesis of that considered by the SupremeCourt in D (SC31/2019). The s 124A offending here involvedconsiderable interaction by W with children in a covert manner in apublic place [redacted]. All of the information in s 16(1)(a) to (l) isappropriately reported in respect of W.(e) The three offences of knowing possession of objectionable publicationsin respect of the images of child sexualised posing showingprepubescent vaginas found on W's computer provide a distinctjustification for a reporting requirement with reference to W'scomputing and internet facilities.(f) Potential employers in the IT industry may be reluctant to employ Wdepending on the extent to which the s 16(1)(m) to (q) reportingrequirements would impinge on the operation or reputation of theirbusinesses. However there is no evidence provided which wouldenable an informed assessment to be made as to the likely prospects ofW gaining such employment.(g) If W was able to operate as an independent contractor then we infer thereporting obligation would not pose as significant an impediment tosecuring work in the IT industry.[65] We reject the submission for W that there is a lack of utility in the s 16(1)(m)to (q) reporting obligations. This is a case where we consider all the reportingobligations in s 16(1) are apt. Furthermore this is a case where for the reasons at [37]to [45] we have assessed the level of risk which W poses to the sexual safety of femalechildren generally to be significant. It follows that the imposition of the reportingobligations will not be disproportionate, notwithstanding the potential implications forattempts W may make to obtain an employment contract in the IT industry.[66] For these reasons we consider that the proper exercise of the discretion requiresan order under s 9(1) that W be placed on the register.Result[67] The applications of the appellant and respondent to adduce further evidenceare declined.[68] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent