Australia, Nov. 30 -- New South Wales Land and Environment Court issued text of the following judgement on Nov. 29:

1. WARD P: I agree with Griffiths AJA.

2. ADAMSON JA: I agree with Griffiths AJA.

3. GRIFFITHS AJA: Mr Taylor seeks leave to appeal from the orders of Wright J, who, on 12 July 2024, dismissed his application for judicial review of separate decisions of the second respondent, the District Court of New South Wales (which filed a submitting appearance), and the first respondent, the NSW Commissioner of Police (Taylor v Commissioner of Police of NSW [2024] NSWSC 839 (PJ)).

4. The facts can be shortly stated. On 11 October 2023, Mr Taylor was convicted by Jeffreys DCJ of using a carriage service to transmit communications which contained indecent material to a recipient whom he believed to be under 16 years of age, a federal offence under s 474.27A(1) of the Criminal Code (Cth). Pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth), Jeffreys DCJ, without passing sentence, ordered that Mr Taylor be released upon giving security of $500 on condition that he be of good behaviour for two years. Later that day, a Registrar of the District Court issued and served on Mr Taylor a notice under s 4 of the Child Protection (Offenders Registration) Act 2000 (NSW) (CPOR Act). Such a notice is required to be given as soon as practicable after a "registrable person is sentenced" (s 4(1)). Within the next seven days, a delegate of the Commissioner entered Mr Taylor's details on the Child Protection Register. Under s 19(1) of the CPOR Act, the Commissioner is required to maintain the Child Protection Register, and subs (2) provides that it "is to" contain various information in respect of each "registrable person".

5. Mr Taylor's argument below, effectively reagitated on appeal, is that the decisions of the District Court to issue a notice to him and of the Commissioner to include him on the Child Protection Register were in error because he was not a "registrable person". That term is defined by s 3A of the CPOR Act as follows (emphasis added):

3A Registrable persons

(1) A registrable person is a person whom a court has at any time (whether before, on or after the commencement of this section) sentenced in respect of a registrable offence, and includes a corresponding registrable person.

(2)Unless a person is a corresponding registrable person, a person is not a registrable person merely because the person-

(a) is a person in respect of whom a court has made an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 or section 33(1)(a) of the Children (Criminal Proceedings) Act 1987 (or an equivalent order under the laws of a foreign jurisdiction) in respect of a Class 1 or Class 2 offence, or ...

6. It is not controversial that Mr Taylor has been convicted of a "registrable offence", an offence under s 474.27A being a "Class 2 offence" (see CPOR Act, s 3). The sole issue is whether the orders made by Jeffreys DCJ under s 20(1)(a) of the Crimes Act 1914 mean that Mr Taylor has, for the purpose of s 3A(1), been "sentenced" in respect of that registrable offence. That is a matter of statutory construction.

7. Mr Taylor requires leave to appeal to this Court (Supreme Court Act 1970 (NSW), s 101(2)(r)). The application for leave was filed late but consent orders were made by the Registrar on 24 October 2024 granting an extension of time. Although contested by the Commissioner, it is appropriate that leave to appeal be granted: the matter raises an important question as to the proper construction of s 3A(1) of the CPOR Act, with implications for the Commissioner's ability to register persons on the Child Protection Register who have been convicted of federal offences and dealt with under s 20(1) of the Crimes Act 1914 (see, eg, Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [34] (Bell P) and [141] (Leeming JA)).

8. I turn now to address the statutory scheme and the primary judge's approach to the construction of s 3A of the CPOR Act.

9. Part 1B of the Crimes Act 1914 provides for the "sentencing, imprisonment and release of federal offenders", which description includes the appellant. Subdivision 5D, headed "Discharge without conviction, conditional release and sentencing alternatives", empowers a court to make various orders in respect of a federal offender instead of imposing a term of imprisonment. Most relevant are the orders which can be made under ss 19B and 20. The former provides for the discharge of a federal offender without proceeding to conviction, with or without the imposition of conditions such as that the offender be of good behaviour for a certain period. In contrast, s 20 provides for the conditional release of offenders who have been convicted (as was the appellant). Relevantly, it provides:

20 Conditional release of offenders after conviction

(1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:

(a) by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:

(i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order; ...

(iv) that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or

(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a)...

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193749cf4e9805db59de5a69)

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