The law is particularly tough when it comes to sex offences. The law imposes onerous reporting obligations on offenders convicted of certain sexual offences.
The underlying rationale for the sex offenders register is deterrence and protection of the community.
In this article we discuss the operation of the Sex Offenders Register and consequences of failing to comply with the obligations imposed pursuant to a registration order under the Sex Offenders Registration Act.
Table of Contents
Understanding of The Act
An understanding of the Act is important for a person charged with a sexual offence, as registration imposes onerous obligations.
An Order that an offender comply with certain reporting conditions contained in the Sex Offenders Registration Act 2004 (Vic) (The Act), arises in two circumstances:
where the Court has no discretion and registration automatic following a Class 1 or Class 2 offence.
where the Court does have a discretion but is otherwise satisfied that the offender poses a risk to the sexual safety of 1 or more persons in the community.
Mandatory Registration Under The Act
An offender guilty of a Class 1 or Class 2 offence must registered under the Act. The Act provides schedules to Class 1 and Class 2 offences.
Without repeating the detail of the offences contained in Schedule 1 and Schedule 2 of the Act, any sexual offending against a child will result in mandatory registration.
Other serious sexual offences are classified as either a Class 3 or Class 4 offence, and may result in registration depending upon the circumstances of the case.
The Test That Applies For Discretionary Registration
Section 11(3) of the Act provides that:
"The Court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community"
How does a Court assess whether an offender poses a risk to the sexual safety of one or more persons of the community?
Some guidance is provided by the leading case of Bowden v The Queen [2013] VSCA 382. In Bowden, the Court endorsed the following considerations as relevant to assessing the risk of an offender for the purposes of a discretionary Order:
"Risk refers to the exposure to a chance of the harm in question occurring".
"It is not necessary that the court is able to identify a risk to particular people, or a particular class of people"
"A risk that a person may reoffend by committing an offence of a type described in a schedule to the Act would be a risk to the sexual safety of one or more persons or of the community."
"The court must be satisfied beyond reasonable doubt as to the existence of a risk".
The court must be satisfied beyond reasonable doubt that the risk that the offender poses is a real risk. If the risk posed by the offender is unreal, or fanciful, the court must not make a registration order".
The Consequences of Registration Under The Act
A person who is ordered to be registered pursuant to the Act, must comply with onerous conditions set out under Part 3 of the Act. The ongoing reporting conditions are but some of the many reporting obligations:
annual interview.
must report changes to personal details.
must report an intended absence from Victoria.
reporting change in motor vehicle registration.
reporting change in employment.
reporting change in address details
reporting change in social media accounts.
reporting change in phone number
reporting change in internet provider
changes in personal appearance
For how long must a registrable offender comply with the reporting obligations?
Sections 33 & 34 of the Act provide:
The reporting period begins when an offender is sentenced for the registrable offence, or ceases to be in government custody, whichever is the later.
Depending upon the circumstance of the case, a reporting period may be 8 years, 15 years, or life reporting.
Under Section 34:
An offender who has been sentenced for a single Class 2 offence (with no previous history) will receive a mandatory period of 8 years. The period is 15 years for a single Class 1 offence. The same period of 15 years applies in circumstances where an offender has ever been found guilty of 2 or more Class 2 offences.
Life reporting applies where an offender has been found guilty of 2 or more Class 2 offences, or 3 or more Class 2 offences.
Are There Any exemption to The Making of a Registration Order?
The Act does provide a right to apply for a registration exemption order if the offender was 18 or 19 as at the date of the specified offence.
The determination of an application for a registration exemption order is governed by Section 11B of the Act, and the key factors relevant to the Court's decision are:
age of the complainant (must be 14 years or older)
whether the young offender is assessed as posing no risk or low risk to the sexual safety of one or more persons of the community
the seriousness of the specified offence
the respective ages of the complainant and offender
whether the complainant has a cognitive impairment.
whether a relationship of supervision existed between the complainant and offender at the time of the specified offence.
Can a Registration Order be Suspended or Cancelled?
Subject to conditions being met, the Supreme Court or the Chief Commissioner of Police may suspend the reporting periods that otherwise apply.
For an application brought in the Supreme Court (pursuant to section 39 of the Act), the preconditions to an application are:
must be regarding a life reporting obligation.
15 years have passed
not on parole at the time of making the application
Section 39B sets out the matters which must be contained in the application, namely:
stating the grounds on which the application is made; and
containing the information, if any, prescribed by the rules of court.
Under Section 45A the Chief Commissioner of Police may suspend the reporting obligations for a period not exceeding 5 years in certain circumstances.
In determining whether to exercise the discretion afforded by section 45A, the Chief Commissioner of Police must have regard to a list of factors outlined under s. 45A(3). These factors include:
the seriousness of the registrable offences.
the period since those offences were committed.
the registrable offender's current age
the registrable offender's cognitive and physical capacity to comply with the reporting obligations
Our office has experience in preparing applications under section 45A, for more information read our case study concerning a recent successful outcome.
What Are The Penalties for Breaching Reporting Obligations?
Failing to comply with the reporting obligations (Section 46): maximum of 5 years imprisonment.
Section 46 does set out a statutory defence of reasonable excuse & that the offender had not received a copy of the notice setting out the reporting obligations.
Conclusion
The Sex Offender Register in Victoria is an entrenched feature of our criminal justice system. An order for registration under the Act is a mandatory consequence upon a finding of guilt for a relevant offence.
Accordingly, it is strongly recommended that anyone charged with a sexual offence seek urgent advice to ensure they understand the consequences of an order under the Sex Offenders Registration Act, and critically whether to plead guilty or not guilty to the offence.
If you require further advice or court representation for any sexual offence including an allegation of breaching sex offender register reporting obligations call our office as early preparation is key.
Contact us to make an appointment or simply book an appointment through our website. We offer an initial free consultation where we can learn more about your situation and discuss your options.