Steven Adam Weston v Nicholas Mehmet Arley

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge ACJ
• Judgment Date: 20 August 2012
• Date: 20 August 2012
• Docket Number: No. SCA 117 of 2011

[2012] ACTSC 138

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge ACJ

No. SCA 117 of 2011

Steven Adam Weston

Appellant

and

Nicholas Mehmet Arley

Respondent

Counsel for the appellant: Mr A Hopkins

Counsel for the respondent: Ms K Weston-Scheuber

AB v The Queen (1999) 198 CLR 111

Arthur v Batterham [2011] ACTSC 158

Attorney-General v Leveller Magazine Ltd [1979] AC 440

Baxter v The Queen (2007) 173 A Crim R 284

Carpenter v Purcell [2008] ACTSC 34

Carusi v Police [2002] SASC 240

Cooper v Corvisy (No 2) (2010) 5 ACTLR 151

Cranssen v The King (1936) 55 CLR 509

Dinsdale v The Queen (2000) 202 CLR 321

Haruma v McCarthy (2008) NTLR 133

Henwood v Balchin [2011] NTSC 84

Hogan v Hinch (2011) 243 CLR 506

J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10

Markarian v The Queen (2005) 228 CLR 357

Millhouse v Police [2008] SASC 353

Moore v The Queen [1999] FCA 448

Nevermann (1989) 43 A Crim R 347

Okwechime v Sindel (2009) 235 FLR 299

Police v Papadopoulos [2008] SASC 325

R v Becker (2005) 91 SASR 498

R v Campbell [2010] ACTCA 20

R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227

R v Coukoulis (2003) 7 VR 45

R v Lomax [1998] 1 VR 551

R v Nantahkhum [2012] ACTSC 55

R v Tait (1979) 46 FLR 386

R v Thomson (2000) 49 NSWLR 383

Rysz v Police [2011] SASC 167

S v Australian Crime Commission (2005) 144 FCR 431

Thomson v The Queen [2012] ACTCA 35

Walker v Rinehart (No 6) [2012] NSWSC 160

Wessling v Police (2004) 88 SASR 57

Crimes (Child Sex Offenders) Act 2005 (ACT), ss 6(1)(a), 11, 24, 33, 37, 45, 46, 49, 54, 59, 60(a), 118

Crimes (Sentencing) Act 2005 (ACT), ss 12, 13, 17, 33, 35, 65

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111

Magistrates Court Act 1930 (ACT), s 216, pt 3.10, div 3.10.2

Crimes (Child Sex Offenders) Regulation 2005 (ACT), s 16A(1)(a)

Child Protection (Offenders Registration) Act 2000 (NSW), ss 9, 10, 11, 12, 14, 14A, 15(1)(a)

Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 7 April 2005, 1503–4 (Jon Stanhope, Attorney General)

APPEAL AND NEW TRIAL — In general and right of appeal — Appeal from Magistrates Court — Appeal against sentence — Appeal upheld in part.

CRIMINAL LAW — Jurisdiction, practice and procedure — Judgment and punishment — Sentencing — Whether sentence manifestly excessive — Not manifestly excessive.

CRIMINAL LAW — Jurisdiction, practice and procedure — Judgment and punishment — Sentencing — Specific error — Failure to consider whether discount should be given for plea of guilty — Re-sentencing.

CRIMINAL LAW — Jurisdiction, practice and procedure — Judgment and punishment — Sentencing — Specific error — Failure to consider whether to set non-parole period — Re-sentencing.

CRIMINAL LAW — Jurisdiction, practice and procedure — Non-publication order — Where offender on sex offenders register — Open justice principle — Matter not within recognised category requiring departure from ordinary course — No evidence of special prejudice.

ORDER

THE COURT ORDERS THAT:

1. The appeal be upheld in part.

2. The order made by the Magistrates Court on 9 March 2010 cancelling a Good Behaviour Order made on 23 September 2009 and the sentence then imposed both be set aside.

3. The sentence of 12 months imprisonment commencing on 10 November 2011 be confirmed.

4. The sentence be suspended on 10 September 2012 for a period of 12 months.

5. Steven Adam Weston be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from 10 September 2012 with a probation condition that he be on probation for a period of 12 months from 10 September 2012, subject to the supervision of the Director-General or her delegate and that he obey all reasonable directions of the Director-General or her delegate.

1 On 23 March 2006, Steven Adam Weston, the appellant, was convicted in the Local Court of Sutherland, New South Wales, of an offence of inciting a person under 16 years to commit an act of indecency. He was released on entering into a bond to be of good behaviour for 12 months with a probation condition and other conditions.

2 This offence is a registrable offence under the Child Protection (Offenders Registration) Act 2000 (NSW) and rendered Mr Weston a registrable person under that Act. This meant that he had obligations under that Act, including reporting relevant personal information (s 9) and reporting changes to relevant personal information (s 11). An annual report is also to be made by him (s 10). As the offence of which he was convicted was a class 2 offence, the obligations last for eight years from the date of sentence (ss 14, 14A). Under s 15(1)(a), the period is extended by any period during which Mr Weston is in ‘government custody’, which I understand to include imprisonment.

3 The reporting requirements are to be made to a police station or another place approved by the Commissioner of Police (s 12).

4 As a result, when Mr Weston moved to the ACT in 2008, he was required under s 33 of the Crimes (Child Sex Offenders) Act 2005 (ACT) (the Child Sex Offenders Act) to contact a prescribed person within seven days of this entry.

5 Mr Weston reported to the ACT Policing Child Sex Offender Register Team on 23 April 2008. Presumably he thought he was required to do so under s 33 of the Child Sex Offenders Act but I could find no regulation prescribing a person, including that team, to which he was required to report. If I am correct, this needs to be addressed.

6 Nevertheless, once in the ACT, Mr Weston became subject to the Child Sex Offenders Act because, under s 11, he was a corresponding offender and that required him to make a report to the Chief Police Officer (s 24) which the report to that team would satisfy.

7 Thereafter, the Child Sex Offenders Act required him to report annually (s 37) and to report certain changes to his personal details, including any change of address (s 54).

8 Mr Weston at some stage provided an address in Latham. On 23 July 2011, police attended at that address. The owner of the premises informed them that Mr Weston had moved out of the premises in early July. His landlord had arranged alternate accommodation in Melba. Police then went to that address where the owner informed them that Mr Weston had moved in to the premises in early July but had left on 17 July 2011.

9 Police seemed to have no difficulty in locating Mr Weston. After they spoke to him, he told them that he had moved into premises in Kambah, but was apparently unable to say when he moved in and with whom he was living. Police contacted the owner of those premises who said Mr Weston had moved in on 21 July 2011.

10 Mr Weston was formally interviewed on 25 July 2011 and admitted to changing his address on two occasions and not notifying police on either occasion.

11 He was charged with failing to notify the change of address between 7 and 23 July 2011, an offence under s 54 of the Child Sex Offenders Act, rendering him liable to a maximum penalty of 200 penalty units (at the time a fine of $22 000) or two years imprisonment or both.

12 He appeared in the Magistrates Court on 26 July 2011 and, after a number of adjournments, entered a plea of guilty on 21 September 2011. He was sentenced on 10 November 2011 to imprisonment for 12 months.

THE APPEAL

13 On 7 December 2011, Mr Weston appealed against the sentence on the ground that the sentence was manifestly excessive.

14 At the hearing of the appeal, he sought leave to amend the grounds of appeal. I gave him leave to amend the grounds of appeal to the following grounds, on which the appeal proceeded:

• 1. That His Honour did not allow any reduction of sentence for the plea of guilty.

• 2. That His Honour failed to provide reasons for declining to set a non-parole period when he was required to do so under s 65 Crimes (Sentencing) Act 2005 (ACT).

• 3. That in declining to set a non-parole period or partially suspend the sentence, His Honour failed to properly consider alternative sentencing options.

• 4. That the sentence imposed by His Honour was manifestly excessive in all of the circumstances.

ADDITIONAL SENTENCE CHALLENGED

15 At the hearing of the appeal, it became apparent that an earlier relevant sentencing discretion may have miscarried.

16 On 23 September 2009, Mr Weston was convicted of having, on 15 April 2009, failed to report travel details as he was obliged to do under various provisions of the Child Sex Offenders Act (see ss 45, 46, 49). He was sentenced to three months imprisonment but that was suspended and the Court made a Good Behaviour Order for 18 months from that date.

17 On 9 March 2010, he was again convicted of failing to report a change of his details, namely, the address to which he had moved on 1 September 2009. On this occasion he was sentenced to five months imprisonment. The then learned Chief Magistrate also purported to cancel the Good Behaviour Order, and imposed the three months imprisonment, to be cumulative upon the five months imprisonment, but suspended it with a further Good Behaviour Order for 18 months.

18 The offence, however, was committed on 8 September 2009, thus, before the earlier Good Behaviour Order had been made. It could not, therefore, have breached that order.

19 I permitted Mr Weston to appeal against that order as follows:

Following a grant of leave by His Honour Justice Refshauge on 8 May 2012 the appellant also appeals out of time against the finding by Chief Magistrate Burns on Case No CC2010/1331 that he breached a suspended sentence order issued on...