Director of Public Prosecutions v MJB [2021] QDC 222

DISTRICT COURT OF QUEENSLAND CITATION: DPP v MJB [2021] QDC 222 PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS (applicant) v MJB (respondent) FILE NO: 714/21 DIVISION: Civil PROCEEDING: Application pursuant to s 13(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 16 September 2021 DELIVERED AT: Brisbane HEARING DATE: 20 August 2021 JUDGE: Smith DCJA ORDER: I order pursuant to s 13(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) that the respondent comply with the reporting obligations of that Act. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS – Where application pursuant to section 13 of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) – whether the respondent a risk to children – whether in the exercise of the Court’s discretion the order should be made LEGISLATION: Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) ss 3, 13, schedule 1 CASES: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, cited C,M v Commissioner of Police [2014] SASC 163; 246 A Crim R 21, applied Commissioner of Police v ABC [2010] WADC 161, applied R v Bunton [2019] QCA 214, considered R v MJB [2021] QDC 170, considered COUNSEL: Ms S Farnden for the Crown Mr J Briggs for the respondent -- 1 of 8 -- 2 SOLICITORS: Office of the Director of Public Prosecutions for the applicant Legal Aid Office Queensland for the respondent Introduction [1] This is an application by the applicant for an order pursuant to s 13(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (“ORA”) for the respondent to comply with the reporting obligations of that Act. [2] The application is consequent upon the sentence I imposed upon him on 13 August 2021.1 [3] On that date, the respondent received a global sentence of seven years imprisonment for inflicting grievous bodily harm on his seven-week-old baby together with concurrent terms of imprisonment for two counts of assault occasioning bodily harm. Applicant’s submissions [4] The Crown submits that an order should be made. It is submitted that the Crown has established that the respondent is a risk to the lives of children. It is submitted that the offending here was very serious and involved more than once incident of deliberate and significant violence inflicted on a completely dependent and vulnerable seven- week-old. It is submitted that the respondent had little insight and he rejected sensible advice from his in-laws and ex-wife about how to parent the complainant. He was an habitual user of cannabis and there was no evidence of rehabilitation tendered at sentence. There was a continued lack of insight with the Department of Child Safety (“DOCS”) and the “Walking with Dad’s” intervention. He was not forthcoming with the court that he had a new child or that he had undertaken a course. It is not disputed there has been an intervention by DOCS with respect to his new child. The offences to which he pleaded guilty demonstrate he poses a risk to the lives of one or more children or children generally. The reporting conditions are not onerous and are the minimum which could be expected. Respondent’s submissions [5] The respondent on the other hand submits that it is up to the court’s discretion whether or not to make an order. Identification of risk does not mandate that an order should be made. [6] The Act provides little or no guidance as to how the discretion should be exercised. It is submitted that the respondent only poses a risk specific to infants who are under his care on an ongoing basis whilst unsupervised. There is no evidence he poses a risk to children generally. He instructs he has had many years of extensive conduct with many children in his own family and his extended family without incident. No risk has materialised in the case of those children. The imposition of a reporting order will be very burdensome to him and produces its own risk. It is submitted that the reporting obligations are onerous as acknowledged by the Court of Appeal in R v Bunton.2 He could well face up to five years imprisonment for an inadvertent breach even though 1 R v MJB [2021] QDC 170. 2 [2019] QCA 214. -- 2 of 8 -- 2 the conduct posed no risk. This would oppress his prospects of rehabilitation. In addition, the utility of the order would be limited. The order only lasts for five years from the date of release from detention. The reality is he is to serve at least three and half years imprisonment before being eligible for parole. By the time the parole period has elapsed his daughter will be seven years of age and his nieces beyond the age of risk. Further, Child Safety has intervened with his daughter’s case. There will be extensive monitoring. In the circumstances, the imposition of an order is disproportionate to the risk which the respondent presents. It will generate imposition on his rehabilitation. Discussion [7] The relevant parts of Section 13 of the ORA provide: “13 Offender reporting orders (1) If a court— (a) finds a person guilty of an offence (the "offence" ) that is not a prescribed offence; or (b) makes a forensic order in relation to a person; the court may also make an order that the person comply with the reporting obligations of this Act (an "offender reporting order" ). (2) However, the court may only make the offender reporting order— (a) if the court is satisfied that the person poses a risk to the lives or the sexual safety of 1 or more children, or of children generally… (3) For subsection (2) (a) , it is not necessary that the court be able to identify a risk to particular children, or a particular class of children. (4) A court may make an offender reporting order under subsection (1) (a) only if the court— (a) imposes a sentence for the offence; and (b) records a conviction. Note— For when no conviction is recorded, see— • the Penalties and Sentences Act 1992 , section 12 • the Youth Justice Act 1992 , section 183 . (5) A court may make an offender reporting order— (a) on its own initiative; or (b) on an application for the imposition of the order made by the prosecution. -- 3 of 8 -- 3 (5A) The prosecution may make an application under subsection (5) (b) at any time within 6 months after the day the court— (a) imposes the sentence for the offence; or (b) makes the forensic order. (6) If a court— (a) has made an offender reporting under subsection (1) (a) in relation to a person, the person may appeal against the making of the order under the Criminal Code , chapter 67 as if the order were a sentence pronounced on the conviction of the person for an indictable offence; or (b) has refused to make an offender reporting order under subsection (1) (a) in relation to a person, the Attorney-General may appeal against the refusal under the Criminal Code , chapter 67 as if the refusal were a sentence pronounced on conviction of the person for an indictable offence. (10) For part 4 , division 5 , if, under subsection (1) (a) , an offender reporting order is imposed on a person for the offence, the person is taken to have been found guilty of a prescribed offence.” [8] In this case there is no dispute this is not a prescribed offence.3 [9] In order for the applicant to succeed, it must firstly establish that the respondent poses a risk to lives or the sexual safety of one or more children or of children generally. It is noteworthy that s 13(3) provides it is not necessary that the court be able to identify a risk to particular children or a particular class of children. [10] If a reporting order is made there a number of obligations. These were set out in R v Bunton4 at [29]: “[29] The Act impacts upon the relevant offender in a variety of ways. They include: (a) upon being sentenced for a “reportable offence”,5 the offender becomes a “reportable offender” unless a conviction is not recorded: s 5(1) and (2)(a); (b) reportable offenders must be registered on a child protection register: s 68; (c) the ORA imposes reporting obligations including an initial report of the offender’s personal details, and monthly periodic reports to the police commissioner, 3 See Schedule 1 to the ORA. 4 [2019] QCA 214. 5 Which this offence is: Schedule 1, item 4 of the ORA. -- 4 of 8 -- 4 until the reporting period ends: s 14, s 18(1) and s 19; the initial report has to be in person, and subsequent periodic reports in such ways as the Police Commissioner directs: s 26; (d) the reporting obligations commence upon being sentenced, and continue for five years: s 35(1)(b) and s 36(1)(a); (e) absent the finding of guilt or the conviction being quashed or set aside, a person stops a being reportable offender at the end of all reporting periods to which they are subject: s 8(b); (f) a reportable contact with a child means having physical contact with a child, or oral or written communications with a child: s 9A(1); (g) it is an offence to fail to comply with the reporting obligations: s 50; and there is no time limit set for prosecutions for such an offence: s 52; (h) personal details which have to be reported include: the offender’s name, date and place of birth, tattoos or distinguishing marks (whether existing or since removed), and details of where the offender generally resides; changes in residence; details of any child with whom the offender has a reportable contact; the nature of employment including the name of the employer and the place of employment; details of any club or organisation of which the offender is a member if there child members or child related activities; the make, model and colour of any vehicle owned or driven within a one year period; details of any telephone or internet services used; details of any social networking; details of any email addresses and internet usernames; passport details; and if travel is intended, the reasons for travel: schedule 2; (i) any change in personal details must be reported, some within 24 hours: s 19A; (j) any intention to leave Queensland for 48 or more consecutive hours must be reported, even if travel is only elsewhere in Australia: s 20; (k) any change in travel plans must be reported if the offender is outside of Queensland while travelling, and the return to Queensland must be reported within 48 hours: s 21 and s 22; (l) reports have to be made at a local police station where the offender is currently residing, or as directed: s 25; (m) on the initial report, police have the power to take fingerprints: s 30; -- 5 of 8 -- 5 (n) police have the power to compel photographs to be taken, and to retain documents, fingerprints and photographs indefinitely: s 32: s 31 and s 32; and reportable offenders can be given a notice to provide DNA to the police: s 40A; and (o) a reportable offender must obtain the Police Commissioner’s written permission before changing, or applying to change, that offender’s name under the Births, Deaths and Marriages Registration Act 2003 (Qld): s 74A.” [11] It was noted in Bunton at [30] that the obligations imposed by a reporting order are onerous. [12] Is it noteworthy that the purposes of the ORA are: “3 Purposes of this Act (1) Parliament recognises that any risk to the lives or sexual safety of 1 or more children, or of children generally, is unacceptable. (1A) The purposes of this Act are— (a) to provide for the protection of the lives of children and their sexual safety; and (b) to require particular offenders who commit sexual, or particular other serious, offences against children to keep police informed of the offender’s whereabouts and other personal details for a period of time after the offender’s release into the community— (i) to reduce the likelihood that the offender will re-offend; and (ii) to facilitate the investigation and prosecution of any future offences that the offender may commit.” [13] As to the issue of risk, I agree with the Crown submissions that it is not necessary for the Crown to establish there is a significant risk to children. Indeed section 3(1A) of the ORA notes that “any” risk to children is unacceptable. [14] However, in Commissioner of Police v ABC,6 the Chief Judge of the Western Australian District Court in examining the equivalent West Australian legislation noted at [16] that: “It is unlikely the Parliament would have intended that would occur if the risk were insignificant. I conclude that the reference in s 19 to a risk to the lives or sexual safety of a person or persons is a reference 6 Commissioner of Police v ABC [2010] WASC 161. -- 6 of 8 -- 6 to a risk that is more than an a fanciful, minimal or merely theatrical risk.” [15] Such a view would apply here. [16] As to the standard of proof I have regard to C, M v Commissioner of Police.7 Nicholson J was confident it was not the intention of the legislature that a court would need to be satisfied only that at the time of the application the applicant did not pose the relevant risk. His Honour noted that the Act was silent as to the standard of proof and noted “Notwithstanding that these proceedings arise as a consequence of the applicant having, in the past, been convicted of criminal offences, they are in my view civil by nature. Ordinarily, the burden of proof applicable to civil proceedings is on a balance of probabilities and not the criminal standard, beyond reasonable doubt. Had the legislature intended otherwise it could have and should have expressly indicated that an applicant had to satisfy the court beyond reasonable doubt that they did not pose the relevant risk.” [17] In the end at [20] his Honour took the view that the Briginshaw8 test applied. [18] I apply that test in this case bearing in mind the seriousness of the consequences to the respondent if an order is made. Disposition [19] In my view, the applicant has established that the respondent poses a risk to the lives of one or more children or of children generally. It is more than a trivial or fanciful risk. I form this view because of the nature of the offending against the complainant here. There were three acts of violence. The most significant act of violence caused significant brain damage to the child and the other two acts of violence caused rib fractures and a femur fracture. [20] I also consider for the reasons I gave in sentencing the respondent that there was evidence he had little insight not only in relation to his offending conduct but also into his deficiencies as a parent. He also rejected sensible advice from his in-laws and his ex-wife how to parent the complainant.9 [21] I agree he was a habitual user of cannabis and there was no evidence placed before the sentencing court of any rehabilitation in this regard. [22] I also consider he did not appropriately engage with parenting interventions provided through DOCS and there was evidence of a continued lack of insight during his involvement with the Walking with Dad programme.10 [23] It also of concern the respondent was not forthcoming with the Court about the fact that he had a new partner and a new child. It is not disputed there has been intervention 7 [2014] SASC 163; 246 A Crim R 21 at [17]-[21]. 8 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 9 R v MJB [2021] QDC 170 at [11] and [116] and exhibit 4 paras 9-25. 10 R v MJB [2021] QDC 170 at [81]-[84] and [116] and exhibit 11 at pages 2 and 3. -- 7 of 8 -- 7 from the relevant Department following a conclusion that the respondent and his partner posed a significant risk to their new baby and the baby was removed from care. The situation is such that the respondent is only permitted limited supervised contact with the baby.11 [24] The respondent may well come into contact with his children in the future, other children, care for children, have additional children or commence a new relationship with his existing children. [25] I am of the view the facts of the offences are sufficient to demonstrate he poses a relevant risk. [26] I am cognisant in reaching this view that there are onerous conditions to be imposed upon the respondent. I also accept that DOCS provides a certain safety net but this is not absolute when one bears in mind, he could have other children. Also I bear in mind the applicant is not seeking a more serious Offender Prohibition Order under Part 3A. [27] In all of the circumstances, based on the evidence that has been placed before me, I am satisfied I should exercise my discretion to make the order. Order [28] Pursuant to s 13(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) the respondent comply with the reporting obligations of that Act. 11 See Exhibit 10. -- 8 of 8 --