District Court New South Wales Medium Neutral Citation: R v DW (No 2) [2020] NSWDC 462 Hearing dates: 29 May 2020 Date of orders: 29 May 2020 Decision date: 29 May 2020 Jurisdiction: Criminal Before: Sutherland SC DCJ Decision: Pursuant to s 3C(1) of the Child Protection (Offenders Registration) Act 2000, the offender is not to be treated as a registrable person for the purposes of that Act in respect of the offences for which he was convicted and sentenced on 11 May 2020 Catchwords: CRIME — Historical child sex offences — Sexual intercourse with child >10 <16 – child offender – extensive delay – rehabilitation – sentencing children who commit child sex offences – non-custodial sentence – offender declared a non-registerable person Legislation Cited: Child Protection (Offenders Registration) Act 2000 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Khanna v The Commissioner of Police [2007] NSWSC 17 The Queen v RI [2019] NSWDC 129 Category: Consequential orders (other than Costs) Parties: Regina (Crown) DW (Offender) Representation: Counsel: Ms C Davenport SC for the offender Solicitors: Mr D Coulton for the Crown File Number(s): 2019/00108682 Publication restriction: Non-publication order in relation to names of offender and complainants or any features which may tend to identify them Judgment 1. This matter comes back today pursuant to what at common law was described as the "slip rule" and now covered by statute in s 43 of the Crimes (Sentencing Procedure) Act 1999: 43 Court may reopen proceedings to correct sentencing errors (1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has— (a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings. (2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard— (a) may impose a penalty that is in accordance with the law, and (b) if necessary, may amend any relevant conviction or order. (3) For the purposes of this section, the court— (a) may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person's arrest, or (b) if of the opinion that the person will not appear if called on to do so, may, without calling on the person to appear before it, issue a warrant for the person's arrest. (4) Subject to subsection (5), nothing in this section affects any right of appeal. (5) For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed. (6) In this section— impose a penalty includes— (a) impose a sentence of imprisonment or a fine, or (b) make an intensive correction order, community correction order or conditional release order, or (c) (Repealed) (c1) make a non-association order or place restriction order, or (d) make an order under section 10 or 11, or (e) make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss, suspension or variation of a licence or privilege. 1. No point is taken by the Crown that the matter is not properly back before me in relation to my failure to make an order in the terms which are required and within the extent of the definition I have no difficulty with finding that I have jurisdiction to have the matter back before me and that I am not functus. 2. The offender pleaded guilty with respect to three counts of sexual misconduct that occurred between himself when he was 15 years of age and two young girls, the victims of his sexual misconduct, back in 1991. 3. With regard to passing sentence in relation to those matters I delivered an extensive judgment on 11 May 2020. These remarks today should be read in conjunction with my findings as expressed in those remarks on 11 May. 4. It suffices for present purposes to indicate that following his commission of the offences at the age of 15 the offender has subsequently completed his adolescence, grown up, married, fathered three children and has, on all reports and to the extent of the evidence before me, become an upstanding member of the community and not only upstanding but also has had exemplary good character in the passage of almost three decades since the time of the commission of the offences. 5. The ultimate outcome of those proceedings on sentence was the imposition of Community Correction Orders with respect to each of the matters. Absent any orders by myself it would flow from the convictions for the particular offences of which the offender was convicted that he would become a "registrable person" and be subject to the provisions of the legislation which has, as its underpinning raison d'etre, the protection of children. 6. Indeed, the Child Protection (Offenders Registration) legislation and regulations thereafter came into existence as a consequence of various amendments that flowed after the Wood Royal Commission Paedophile Inquiry and recommendations that Wood J made in that report to the government. The then Carr Government took steps to implement various of the recommendations from that Royal Commission and various of the acts which were introduced had as their fundamental basis an acknowledgment of what was described as the recidivist nature of paedophile offending. The Minister for Police, Mr Whalan, the Member for Strathfield, in the Second Reading Speech explained to the Legislative Assembly that the Child Sex Offender Registration Scheme was an aspect which was being followed worldwide in various of the countries that follow a similar approach to ours regarding such insidious offences. Mr Whalan said: There are currently more than 60 such schemes worldwide. Child Sex Offender Registration Schemes recognise that many child sex offenders when released into the community may pose a further risk to child safety. Studies of child sex offender behaviour show a high rate of recidivism, which is even more alarming given the low rate of reporting of child sex offences. 1. I have carefully perused not only the politicians' descriptions as to the aims of the legislation but I have carefully focused on the actual legislation itself and on the orders that flow pursuant to the administrative provisions of that scheme. 2. I am firmly of the view, as I expressed in the course of my passing sentence, that on all of the evidence before me not only am I not persuaded that the offender poses a danger to children, I am positively satisfied that he does not pose a danger to children given the passage of time since the commission of the offences. The involvement that he has had with his own teenage children's activities and the glowing terms in which numbers of persons have expressed their involvement with him and his family and, indeed, their lack of any fear with respect to their own teenage children into the future, speaks eloquently in this regard. 3. The testimonials to which I allude I have referred to in detail in the earlier remarks on sentence and they are of powerful persuasion. 4. One of them comes from the wife of a police officer who, respecting the position that he holds where he is precluded pursuant to the police regulations from writing a reference himself, his wife has indicated in terms the non-changing view that they hold of the offender, even in the knowledge of the offences which occurred historically. 5. Similar sentiments have been expressed by one of the other identified referees with respect to her own children, with whom the offender and his wife have had a great deal of interaction. 6. I am satisfied that in all of the circumstances it is appropriate, given the passage of time and given the positive findings as to his risk of recidivism or repeat offending, in respect of which I acknowledge one can never be completely certain, that the risk of such future offending is so remote, in my opinion, that it warrants an appropriate order that he not be a registrable person pursuant to the legislation, 7. There is no risk, in my view, to identifiable children or children in general. The aspects giving a prerequisite to the non‑registration relate to his age at the time and the age of the victims and the likelihood of him committing another registrable offence which to describe it as negligible might even be an overstatement in the sense of it is less than negligible. 8. I note the impact that an order would have and I make it abundantly clear that whilst I am cognizant of the negative effects of registration the principal basis upon which I am motivated to make orders that he is not required to become registered relate to, in my view, the clearly demonstrated rehabilitation, his otherwise impeccable good character, his demonstrated non‑offending in any regard since the time that he was 15 years of age and the interrelationship that he has had with his own and other children in the interim. 9. I should make it clear that I have been provided with the remarks of his Honour Lerve DCJ in the matter of The Queen v RI [2019] NSWDC 129 where, in different circumstances, his Honour acceded to the submissions of Mr Keller, of counsel, for the young offender in that matter and accordingly declared that the offender was not to be treated as a registrable person. 10. I have also been provided with the judgment of Brereton JA in relation to proceedings brought in the Equity Division and reported in Khanna v The Commissioner of Police [2007] NSWSC 17 where similar circumstances regarding the necessity for such a declaration arose in the proceedings before his Honour. Of course, the situation before Brereton J was very distinguishable to the present matter but the approach taken to the legislation has been of some assistance to myself in forming the view that I have. 11. Accordingly I declare pursuant to s 3C(1) of the Child Protection (Offenders Registration) Act 2000 that the offender is not to be treated as a registrable person for the purposes of that Act in respect of the offences for which he was convicted and sentenced on 11 May 2020. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 August 2020