W (CA661/2018) v District Court at Wellington [2019] NZCA 45; [2020] 2 NZLR 153 (12 March 2019)

Last Updated: 4 May 2021

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NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF APPELLANT’S NAME OR IDENTIFYING PARTICULARS REMAINS IN FORCE.

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA 661/2018 [2019] NZCA 45

BETWEEN	W (CA661/2018) Appellant
AND	THE DISTRICT COURT AT WELLINGTON First Respondent
AND	COMMISSIONER OF POLICE Second Respondent

Hearing:	29 November 2018
Court:	Kós P, Miller and Asher JJ
Counsel:	D A Ewen and J S McHerron for Appellant No appearance for First Respondent (abides outcome) A M Powell and J B Watson for Second Respondent
Judgment:	29 November 2018 at 9.38 am
Reasons:	12 March 2019

JUDGMENT OF THE COURT

1. The appeal is allowed.

2. The second respondent is to pay the appellant costs for a standard appeal on a band A basis, together with usual disbursements. We certify for second counsel. Costs in the High Court are to be fixed in that Court.

W (CA661/2018) v THE DISTRICT COURT AT WELLINGTON [2019] NZCA 45 [12 March 2019]

REASONS OF THE COURT

(Given by Kós P)

• [1] When does the appellant’s reporting liability under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 expire?¹ He says it was on 23 February 2018. The Commissioner says it was on 9 January 2019. The answer depends on whether s 36 of the Act (which suspends reporting obligations when the subject is in custody for more than a week) has retrospective effect.

• [2] Having failed in the District Court, the appellant sought judicial review in the High Court. Having again failed there, he appealed to this Court. At the hearing on 29 November 2018 we held that s 36 does not apply retrospectively to a period when no reporting obligations in fact existed. We therefore allowed the appeal.² These are our reasons for doing so.

Background

• [3] In August 2009 the appellant was sentenced to 13 months’ imprisonment on 10 charges of possession of objectionable material. He was released from prison in February 2010. In September 2012 he was made the subject of an extended supervision order for seven years.³ In February 2013 he was remanded in custody for breaches of the ESO. He was released in December 2013, after 320 days in custody.

• [4] In October 2016 the Act came into force. It is common ground that it has retrospective effect in relation to persons convicted of certain offences prior to the Act coming into force. The appellant is a registrable offender under cl 1(1)(c) of the Sch 1 transitional provisions. He is a class 1 offender with an eight year reporting period under s 35(1)(c). He was duly notified of that. As a result he was required to report an array of personal information relating to his residence, employment, modes of transport, telephone and internet service providers and numbers, email addresses and internet usernames.⁴

¹ In this judgment, “the Act”.

² W (CA661/2018) v The District Court at Wellington [2018] NZCA 548.

³ Parole Act 2002, Part 1A. In this judgment, the “ESO”.

⁴ Section 16(1) of the Act.

• [5] The relevant provisions of the Act are these:

2. Commencement

This Act comes into force 30 days after the date on which this Act receives the Royal assent.⁵

3. Purpose

The purpose of this Act is to establish a Child Sex Offender Register that will reduce sexual reoffending against child victims, and the risk posed by serious child sex offenders, by—

(a) providing government agencies with the information needed to monitor child sex offenders in the community, including after the completion of the sentence; and

(b) providing up-to-date information that assists the Police to more rapidly resolve cases of child sexual offending.

4. Interpretation

In this Act, unless the context otherwise requires,—

...

reporting obligations, in relation to a registrable offender, means the obligations imposed on the person by subpart 2 of Part 2

reporting period means the period, as determined under sections 34 to 38, during which a registrable offender must comply with the offender’s reporting obligations

5. Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.

34. When reporting obligations begin

For the purposes of this subpart, a registrable offender’s reporting obligations begin—

(a) when the person ceases to be in custody in relation to a qualifying offence; or

...

35. Length of reporting period and period on register

(1) A registrable offender must continue to comply with the reporting obligations imposed by this subpart for—

⁵ The Act came into force on 14 October 2016.

...

(c) 8 years, if the offender has been sentenced to a term of imprisonment for a class 1 offence or for an equivalent repealed offence that corresponds to a class 1 offence; or

...

36. Suspension of reporting obligations

(1) A registrable offender’s reporting obligations are suspended for any period during which—

(a) he or she is in custody for more than 7 days; or

(b) he or she is outside New Zealand, unless he or she is a person to whom section 33 applies or the obligation is under section 22; or

(c) the Commissioner has suspended the offender’s reporting obligations under subsection (2); or

(d) the offender’s reporting period has ceased to run under section 348A of the Criminal Procedure Act 2011; or

(e) a court order suspending the offender’s reporting obligations under section 38(4) is in force.

...

(5) Any period during which a registrable offender’s reporting obligations are suspended under subsection (1) is not to be taken into account for the purpose of calculating when the offender’s reporting period ends.

Schedule 1 Transitional, savings, and related provisions Part 1 Provisions relating to Act as enacted

1. Retrospective application

(1) This clause applies to a person who, on 14 October 2016, is, in respect of a qualifying offence,—

...

(c) subject to an extended supervision order or an interim supervision order following the sentence of imprisonment that was imposed for that offence;

...

(4) A person to whom this clause applies—

(a) is a registrable offender for the purposes of section 7(1) and this schedule (if subclause (1) or (2) applies); and

...

(c) is subject to all other provisions of this Act with any necessary modifications.

2. Notices to be given

...

(2) Before, or as soon as practicable after, 13 March 2017, the Commissioner must cause written notice to be given to every registrable offender referred to in clause 1(1)(b) to (e) of—

(a) the offender’s reporting obligations; and

(b) the penalties for failing to comply with those obligations.

...

3. Reporting obligations

(1) A registrable offender who receives a notice under clause 2(2) or (3) must make an initial report to the Commissioner of all relevant personal information within 72 hours of receiving the notice or within any longer period specified in the notice.

(2) Despite section 34,—

(a) the offender’s reporting obligations begin when the offender receives the notice; and

(b) for the purpose of calculating the length of the reporting period, the offender’s reporting period is taken to have begun on the later of the following:

(i) the date on which the person was sentenced for a qualifying offence or a corresponding offence:

(ii) the date on which the person ceased to be in custody in relation to a qualifying offence or a corresponding offence.

• [6] Schedule 1 was amended in 2017,⁶ the House sitting under urgency and passing the amending legislation through all three readings in a single day.⁷ That amendment gave rise to cl 1(4)(c) of Sch 1 in its present form, with which this appeal is most directly concerned.

6. With the amendments having effect retrospectively, from 14 October 2016: Child Protection (Child Sex Offender Government Agency Registration) Amendment Act 2017, s 2.

⁷ (7 March 2017) 720 NZPD 16347–16401.

The issue in this case

• [7] This appeal concerns the interplay between s 36(5) and cl 1(4)(c) of Sch 1.

• [8] But for the potential application of s 36(5), the appellant’s eight year reporting period would have expired on 23 February 2018. Section 36(5) says that a period during which a registrable offender’s reporting obligations are suspended under s 36(1) is not to be taken into account calculating when the reporting period ends. Per cl 1(4)(c), a period in custody suspends reporting obligations. But the appellant did not have any actual reporting obligations when he was taken back into custody in February 2013. The legislation did not come into force for another three and a half years.

• [9] The Crown however says cl 1(4)(c) of Sch 1 applies: the appellant “is subject to all other provisions of this Act with any necessary modifications”. The “necessary modification” the Crown contends for is to read s 36(5) thus:

Any period during which a registrable offender’s reporting obligations are [or would have been] suspended under subsection (1) is not to be taken into account for the purpose of calculating when the offender’s reporting period ends.

Judgment appealed

• [10] In the District Court, Judge Mill held that s 35(1)(a) applied to the appellant.⁸

• [11] The appellant then sought judicial review of that decision in the High Court (there being no right of further appeal). The application to the High Court was unsuccessful.⁹

• [12] Churchman J focused upon perceived statutory purpose.¹⁰ The Act’s provisions were to apply retrospectively to those persons falling within cl 1 of Sch 1 of the Act. Clause 1(4)(c) stated that a retrospective registrable offender was subject to “all other provisions of this Act”. Section 36 was clearly included. There was, therefore, “no alternative interpretation to s 36(5) other than that applied by the

⁸ W v Commissioner of Police [2018] NZDC 15979.

⁹ W v District Court of New Zealand [2018] NZHC 2813 at [34].

¹⁰ At [31].

Commissioner of Police”.¹¹ The Judge went on to note that the legislation “creates a number of legal fictions”.¹² Arguments based on logic had to have regard to such fictions. The Act was clearly intended to have retrospective effect. An argument that some of the consequences of s 36(5) are to be retrospective, and others not, would run directly counter to the clear statutory indication that a person to whom cl 1 of pt 1 of Sch 1 of the Act applies “is subject to all other provisions of this Act”.¹³

Submissions

• [13] For the appellant, Mr Ewen submitted that s 36(5) does not apply literally. The words the Crown would add to s 36(5) – “or would have been” – were not a necessary modification. Distilled to its essence, Mr Ewen’s argument was threefold. First, there was no reporting obligation at the time the appellant was in custody. Secondly, none of the other suspension provisions in s 36(1) apply to him. Thirdly, it is difficult to distinguish his position from that of another person whose circumstances were identical save that he was not returned to custody before October 2016. Neither had reporting obligations before that date.

• [14] In short, Mr Ewen asked why it is a necessary modification to “suspend” a reporting obligation that was not applicable anyway at the relevant time the subject was in custody.

• [15] For the Crown, Mr Powell did not seek to uphold the judgment on the basis of the Judge’s reasoning. He accepted that s 36(5) cannot be construed to apply to these circumstances without “necessary modifications” under cl 1(4)(c). In this instance, by adding the words, “or would have been”.¹⁴

• [16] Mr Powell very fairly conceded that a “necessary modification” must be one required to make the legislation work. He also conceded that had the Act not been amended to include the words “any necessary modifications” in cl 1(4)(c), it would have been difficult to apply s 36 to the appellant. However, he submitted that the

¹¹ At [31].

¹² At [32].

¹³ At [32].

¹⁴ As set out at [9] above.

inclusion of those words authorised alterations necessary to give effect to the purpose of the Act. The common feature of the various circumstances provided for in s 36(1) is that they are all times when the offender cannot be expected to have reported. That was true here also. The purpose of s 36(5) was to preserve the registration period for the full period of eight years of reporting.

Analysis

• [17] The Act came into force on 14 October 2016. A s 7 report by the Attorney- General under the New Zealand Bill of Rights Act 1990 noted that it had retrospective effect.¹⁵ It concluded the extent of retrospectivity was more than reasonably necessary. Retrospectivity resulted in offenders subject to an ESO being registrable offenders for the purposes of the Act.

• [18] The 2017 amendment then made clear, via cl 1(4)(c), that those to whom the Act applied retrospectively were subject to all provisions of the Act “with any necessary modifications”. That was not the primary purpose of the amendment, but it was one of its plain consequences. The Crown accepted that it must rely here on cl 1(4)(c). Other provisions applying the Act retrospectively to offenders do not stop the clock where the registrable offender’s renewed period of custody predated the commencement of the Act.

• [19] The issue in a nutshell is whether the four words the Crown wishes to add are a “necessary modification” to s 36(5), which otherwise would not apply to the appellant.

• [20] Prior to the commencement of the Act the appellant had no reporting obligations. None of the obligations set out at [4] above applied to him. The Crown’s concession that s 36(5) does not literally apply, despite cl 1(1)(c), reflects this reality. So does the Crown’s concession that s 36(5) can only be made to apply here if cl 1(4)(c) has the effect of adding four words to it – “or would have been”.

15. Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Child Protection (Child Sex Offender Register) Bill (13 August 2015).

• [21] It is not apparent to us why it is necessary to modify s 36(5) to deem reporting obligations to exist at a time when no such obligations in fact existed. There is logic in enlarging the total reporting period where a person in fact has reporting obligations but cannot perform them because they are in custody, overseas, or the subject of administrative suspension. The same cannot be said where what is suggested is the suspension of entirely non-existent obligations.

• [22] The Crown might perhaps justify the extended application of s 36(5) if able to explain what good reason existed to distinguish the appellant’s position from that of another notional offender, X, who had also had an extended supervision order imposed in September 2012 but who was not retaken into custody before commencement of the Act in October 2016. However this the Crown was unable to do. The consequent distinction between X and the appellant is arbitrary. The revision of express statutory language to produce arbitrary discrimination between different classes of offender does not commend itself to this Court as a “necessary modification”.

• [23] No good reason being established for reading in the additional words proposed by the Crown, those words are not a “necessary modification” for the purposes of the cl 1(4)(c).

• [24] For these reasons we hold it impermissible to extend the application of s 36(5) suspending reporting obligations retrospectively to a period when no reporting obligations in fact existed.

• [25] In these circumstances it is unnecessary for us to resort to the appellant’s secondary argument based on s 26(2) of the Bill of Rights Act.

Result

• [26] The appeal is allowed.

• [27] The second respondent is to pay the appellant costs for a standard appeal on a band A basis, together with usual disbursements. We certify for second counsel. Costs in the High Court are to be fixed in that Court.

Solicitors:

Ord Legal, Wellington for Appellant

Crown Law Office, Wellington for First and Second Respondents