Hodges v Lucas[2016] QDC 274

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   This is an appeal against an Offender Prohibition Order which was made in the Magistrates Court at Brisbane on 18 April 2016 pursuant to s 6 of the Child Protection (Offender Prohibition Order) Act 2008 (the Act).

2. [2]
   Pursuant to that order, the appellant was prohibited from the following:

“(a)Unsupervised conduct with children under the age of 16 years;

2. (b)
   Attending, loitering or residing within 200 meters of a school or child care centre;

3. (c)
   Attending, loitering or residing within 200 meters of a children sporting or recreational facility;

4. (d)
   Residing with a child under the age of 16 years;

5. (e)
   Accepting any employment which involves unsupervised contact with children;

6. (f)
   Accessing the internet;

7. (g)
   Possessing any device, for example, a smart phone with internet access or any device capable of accessing social media platforms such as instant relay chat services, Facebook and/or Twitter.

This order will be in place for five years from today.”

  Grounds of appeal

3. [3]
   The grounds of appeal are:

1. The learned magistrate failed to take into account the mandatory considerations under s 9(1) of the Child Protection (Offender Prohibition Order) Act 2008.

2. The learned magistrate applied the incorrect test in determining whether to make an offender prohibition order.

Particulars

1. (a)
   The learned magistrate failed to address the question of whether the appellant represented an unacceptable risk to the lives or sexual safety of children as required by s 8(1)(b)(i) of the Act.

2. (b)
   The learned magistrate failed to address the question of whether the terms of the offender prohibition order would reduce the risk as required by s 8(1)(b)(ii) of the Act.

3. (c)
   Alternatively, the learned magistrate failed to give any or sufficient reasons in regards to the mandatory considerations under s 8(1) of the Act or the tests set out in s 8(1)(b) of the Act.

The appeal

4. [4]
   A person against whom an offender prohibition order has been made may appeal to the District Court of Queensland.^[1]

5. [5]
   The appeal is by way of rehearing.^[2]

6. [6]
   In such an appeal, the powers of the appellant court are only exercisable where the appellant can demonstrate, having regard to all the evidence before the court, that the order that is the subject of the appeal is the result of some legal, factual or discretionary error.^[3]

7. [7]
   The powers on appeal include that the appellant court may “make, vary or revoke the offender prohibition order, as it considers appropriate; or make another order or decision it considers should have been made.”

Statutory background

8. [8]
   Section 6(1) of the Act provides that the Commissioner of Police may apply to the Magistrates Court for an offender prohibition order if the commissioner believes on reasonable grounds that the respondent is a relevant sexual offender and has recently engaged in concerning conduct.

9. [9]
   A person is a relevant sexual offender if he is not subject to an order under the Dangerous Prisoners (Sexual Offenders) Act 2003 but is a “reportable offender”    under the Child Protection (Offender Reporting) Act 2004.^[4]

10. [10]
    A person is a “reportable offender” within the meaning of the Child Protection (Offender Reporting) Act 2004, if, relatively, that person is sentenced for a “reportable offence”. “Reportable offence” relevantly includes offences such as, indecent treatment of children under 16, use of the internet to procure children, involving children in making child exploitation material and use carriage service to access child pornography.^[5]

11. [11]
    An application may only be made if the respondent has recently engaged in “concerning conduct”.^[6]

12. [12]
    “Concerning conduct” means conduct the nature or pattern of which poses a risk to the lives or sexual safety of children or a child.^[7]

13. [13]
    Any such application under the Act must state:

1. (a)
   each conviction of the respondent for a reportable offence against a child;

2. (b)
   the particulars of the concerning conduct;

3. (c)
   when the concerning conduct was said to have occurred; and

4. (d)
   the conduct that is proposed to be prohibited.^[8]

14. [14]
    The Magistrates Court may make an offender prohibition order if satisfied, on the balance of probabilities, after considering the matters mentioned in s 9, that:

1. (a)
   the respondent is a relevant sexual offender;

2. (b)
   having regard to the nature and pattern of conduct recently engaged in by the respondent, that he poses an unacceptable risk to the sexual safety of children; and

3. (c)
   making the order will reduce the risk.^[9]

15. [15]
    The matters a court must consider in making a determination are:

1. (a)
   the seriousness of the offending against children;

2. (b)
   the period since the offences were committed;

3. (c)
   the comparative ages between the respondent and the victim;

4. (d)
   the respondent’s present age;

5. (e)
   the seriousness of the respondent’s criminal history;

6. (f)
   the effect of the prohibition order on the respondent in comparison with the level of risk against children;

7. (g)
   the respondent circumstances, insofar as they relate to the conduct sought to be prohibited; and

8. (h)
   anything else the court considers relevant.^[10]

16. [16]
    A prohibition order may prohibit the following particular conduct by the respondent:

1. (a)
   associating with or contacting stated persons;

2. (b)
   being in stated locations;

3. (c)
   residing at stated residences;

4. (d)
   engaging in stated behaviour; and/or

5. (e)
   being in stated employment.^[11]

17. [17]
    A prohibition order may prohibit conduct absolutely or on terms considered appropriate and stated in the order.^[12]

Factual history

18. [18]
    The respondent made the application for an offender prohibition order pursuant to s 6 of the Act as he believed that the appellant is a “relevant sexual offender”^[13]and “has recently engaged in concerning conduct”.^[14]

19. [19]
    The appellant is a “relevant sexual offender” as he has been sentenced for a “reportable offence”. The appellant has been convicted of numerous “reportable offences” committed against a child. The application for the offender prohibition order listed the following reportable offences:

1. (a)
   use internet etc. to procure children under 16, under 12 years, with circumstance of aggravation pursuant to s 218A of the Criminal Code (21 charges between 29 September 2003 and 3 August 2004);

2. (b)
   use internet etc. to procure children under 16 pursuant to s 218A of the Criminal Code (three charges on 15 May 2004 and 20 May 2004);

3. (c)
   indecent treatment of a child under 16 with circumstances of aggravation pursuant to s 210 of the Criminal Code (two charges between 7 October 2004 and 20 October 2004);

4. (d)
   indecent treatment of a child under 16 with a circumstance of aggravation pursuant to s 210 of the Criminal Code (14 December 2000);

5. (e)
   use internet etc. to procure children under 16, under 12 years, pursuant to s 218A of the Criminal Code (two charges between 15 December 2005 and 20 March 2006);

6. (f)
   involving children in making child exploitation material pursuant to s 228A of the Criminal Code (between 1 January 2006 and 20 March 2006);

7. (g)
   use internet etc. to procure children under 16 pursuant to s 218A of the Criminal Code (7 charges on 19 June 2012, 23 June 2012, 24 June 2012 and 27 June 2012); and

8. (h)
   use carriage service to access child pornography pursuant to s 474.19 of the Commonwealth Criminal Code.

20. [20]
    It follows that the appellant is a convicted child sex offender and is a reportable offender under the provisions of the Child Protection (Offender Reporting) Act 2004. Most recently, on 8 January 2013, he was convicted of the seven charges referred to in para 19(g) above and was sentenced to 3 years imprisonment. He was released on parole on 9 February 2015.

21. [21]
    The “concerning conduct” particularised in the application relates to the appellant disclosing to a parole officer on 19 August 2015 that he had used an internet chat service known as Internet Relay Chat to communicate with a 15 year old girl, Chloe. The appellant admitted to accessing the internet via his mobile phone. Upon examination of his phone the case officer observed a number of images of a female aged between 14 and 17 years posing in underwear or bikinis. The appellant admitted that the images were of Chloe.

22. [22]
    A decision was made to revoke the appellant’s parole. The parole officer spoke with the appellant and he made admissions consistent with those that he made to his case officer. He declined to comment when asked as to when he downloaded the app and how long he had been communicating with the child. The appellant admitted that Chloe told him that she was 15 years old and that she had forwarded images of herself in a bikini, to him. He admitted that he knew of his reporting conditions pursuant to the Child Protection (Offender Reporting) Act 2004 and offered no comment as to why he did not report the webchat details, email addresses or reportable contact with a child.

The magistrate’s decision

23. [23]
    In his decision, the magistrate noted that there was no issue that the appellant was a reportable offender and that the application for an offender prohibition order was made pursuant to the provisions of s 6 of the Act.^[15]

24. [24]
    The magistrate noted that the court must be satisfied “the child sex offender has engaged in conduct which poses an unacceptable risk to the lives or sexual safety of the children in the community”^[16]and referred to the purpose of the legislation as set out in s 3 of the Act.

25. [25]
    In the course of the decision the learned magistrate identified the arguments that were presented on behalf of the appellant in opposition to the making of the order, including the fact that he was already the subject of supervision pursuant to a probation order; that he self-reported his concerning act to his parole officer; that his history does not suggest that he is an opportunist and that the order sought was in such wide terms as to be unworkable.^[17]

26. [26]
    The magistrate then went on to expressly state that in considering the matter he had regard to s 9(1) of the Act.^[18]

27. [27]
    The magistrate then noted the following:

1. (a)
   the appellant has troubling history of repeat offending and non-cooperation;

2. (b)
   he failed to comply with parole conditions which have since expired;

3. (c)
   the appellant failed to comply with reporting obligations in the past – for example, on 28 June 2012 he failed to report to the police the details of the internet service provider that he was using at the time;

4. (d)
   the appellant’s reportable offences as detailed in the application;

5. (e)
   that the appellant’s most recent experience with the child, Chloe does not encourage the thought that the appellant will make the right choices;

6. (f)
   that the appellant has poor judgment and insight and “in my view has poor cognitive skills”;

7. (g)
   that if the appellant is provided with internet access or capability “he will, in my view, use it to continue his offending behaviour”; and

8. (h)
   there have been over 10 years of multiple interventions of various kinds which did not stop the situation with Chloe arising.^[19]

28. [28]
    He then stated that in his view the requirements of s 8(1)(a) and (b) of the Act have been met on the balance of probabilities applying the Briginshaw Test.^[20]

Matters relied on by the appellant

29. [29]
    The appellant has submitted that the magistrate failed to address the question of whether the appellant represented an unacceptable risk to the lives or sexual safety of children as required by s 8(1)(b)(i) of the Act. In particular, it is submitted that the magistrate did not turn his mind to the fact that it has been more than a decade since the appellant had inappropriately touched a child. It was further submitted that the magistrate was required to review that fact in light of the appellant’s more recent conduct where he was sent an unsolicited photograph of a scantily clad 15 year old girl and to then determine what risk the appellant posed to the sexual safety of children.

30. [30]
    The appellant has also submitted that the magistrate was required to specifically consider each of the matters listed in s 9(1)(a)-(g) of the Act but failed to do so.

31. [31]
    As to the latter submission, in my view the learned magistrate did not fail to consider the mandatory matters detailed in s 9(1). As mentioned in para [26] above, the magistrate expressly stated that he had regard to s 9(1) of the Act and then went on and expressly noted many factors all of which were relevant matters under that section.

32. [32]
    It must be noted that s 9(1) requires consideration to be given to the matters listed therein, but it does not require a magistrate to set out in the decision each sub-section of s 9 and then discuss each of them in detail. The appellant has presented no authority to the contrary. I also note, that relevant to s 9(1)(f), the learned magistrate fashioned an order that amended and restricted the potentially wide ranging effects of the original order that was sought by the applicant. He did so after considering submissions relevant to that very issue.^[21]I am satisfied that the magistrate appropriately took the mandatory s 9(1) considerations into account.

33. [33]
    As I have said, the appellant has also submitted that the learned magistrate applied the incorrect test in determining whether to make an offender prohibition order.

34. [34]
    The correct test is that required by s 8 of the Act. The learned magistrate expressly stated that in his view the requirements of s 8(1)(a) and (b) have been met. I note that at the commencement of his decision the learned magistrate said:

“A prohibition order can be made against certain previously convicted child sex offenders to prohibit them from engaging in specified lawful conduct where there is a reasonable cause to believe the nature and pattern of the conduct of the offender poses a risk to the lives or sexual safety of children.”^[22]

35. [35]
    His Honour then went on to set out the factors that had been submitted on behalf of the appellant against the making of the order before considering the factors that favoured the making of the order and then determined that “the requirements of s 8(1)(a) and (b) have been met on balance”.^[23]

36. [36]
    Furthermore, contrary to the appellant’s submission that the magistrate did not turn his mind to the fact that it has been more than a decade since the appellant has actually touched a child,^[24]the magistrate in fact referred to the application which detailed the appellant’s reportable offences including when they were committed^[25]and noted that the appellant had a “troubling history of repeat offending”.^[26]He also specifically referred to the fact that the appellant has had over 10 years of multiple interventions prior to the most recent concerning act.

37. [37]
    It follows that I am satisfied that the magistrate applied the correct test when determining that the appellant represented an unacceptable risk to the lives or sexual safety of children as required by s 8(1)(b)(i) of the Act.

38. [38]
    The appellant has also submitted that the learned magistrate failed to address the question of whether the terms of the offender prohibition order would reduce the risk as required by s 8(1)(b)(ii).

39. [39]
    In my view this submission has partial merit. Given the number of previous offences the appellant has committed and the nature of the majority of that offending conduct, an order that prohibits the appellant’s ability to access the internet must necessarily reduce the unacceptable risk that he poses to the lives or sexual safety of children.^[27]There is no doubt that the magistrate turned his mind to that issue.

40. [40]
    It is not so clear however whether he turned his mind to the issue in relation to the parts of the order that prohibited the appellant:

• from having unsupervised contact with children under the age of 16 years;

• from attending, loitering or residing within 200m of a school, child care centre or a children’s sporting or recreational facility;

• from residing with a child under the age of 16 years; and

• from accepting any employment which involves unsupervised contact with children.

41. [41]
    The appellant’s offending history, as revealed in the material, does not involve him committing any offences in any of those circumstances. Nor was the recent concerning act committed in any of those circumstances. Despite the appellant having three previous convictions for indecent dealing with children, only the details of one was placed before the court, and it involved the appellant touching a 10 year old child’s bottom on the outside of her clothing as she walked through the Queen Street mall with a friend. The friend was known to the appellant. That offence occurred in December 2000. The other two incidents which resulted in he being convicted of indecent treatment of a child occurred in 2004.

42. [42]
    Given the lack of detail before the court regarding those offences, the lengthy passage of time that has elapsed since their commission, the nature of the offending conduct for the offence that occurred in December 2000 and the nature of the recent concerning conduct, it is difficult to understand how the contested conditions of the prohibition order contribute to a reduction in risk that the appellant may pose to the lives and sexual safety of children.

43. [43]
    I am unable to consider the learned magistrate’s reasoning regarding this issue as he failed to provide reasons in that regard. This of course brings into play the appellant’s alternative submission that the “magistrate failed to give any or sufficient reasons in regards to the mandatory considerations under s 8(1) or the tests set out in s 8(1)(b).”

44. [44]
    It is well established that a “failure to give reasons which ought to be given amounts to an appealable error”,^[28]and I accept that what is required can vary widely from case to case.^[29]

45. [45]
    The respondent has submitted that the magistrate’s reasons for his decision were adequate^[30]and, in relation to the prohibitions regarding internet usage and access, I agree. But in relation to the other prohibitions, for the reasons I have already given, the failure to give reasons amounts to an appealable error.

46. [46]
    It follows that the power of this court to interfere with the order made in the court below is enlivened. For the reasons detailed above I am not satisfied that the prohibitions which do not relate to internet access or usage contribute to a reduction in risk that the appellant may pose to the lives and sexual safety of children and the appeal should be allowed to that limited extent.

Order

1. Appeal allowed.

2. The order made in the Magistrates Court at Brisbane on 18 April 2016 is set aside and substituted by the following:

Pursuant to s 11 of the Child Offender (Offender Prohibition Order) Act 2008 the appellant is prohibited from:

i.Accessing the internet; and

ii.Possessing any device, for example, a smartphone which is capable of accessing the internet or any device capable of accessing social media platforms such as Instant Relay Chat Services, Facebook and/or Twitter.

3. This order will be in place for 5 years from today.