Becoming a registered sex offender is (in most cases) not discretionary. The legislation sets out when and for how long a person will be on the register. That is determined by the charges before the Court. The result is that there are people placed on the register who do not need to be there, even according to the Judge or Magistrate who sentences them. They may be a young offender or a low risk of reoffending; sadly, there is no discretion and that person becomes subject to onerous reporting obligations. In a case where the reporting requirements are imposed for life, the effect on that person is enormous.
For people on the Victorian Sex Offenders Register, there are two ways you can apply to have your reporting obligations suspended.
The first is via an application to the Chief Commissioner of Police (pursuant to s.45A of the Sex Offender Registration Act 2004). There are no restrictions on when an application to the Chief Commissioner can be made, although we generally advise clients that at least 3 years of demonstrated compliance will help you convince the Chief Commissioner that you are a low or no risk to the community.
[Read our article on Suspension of reporting obligations under the Sex Offenders Registration Act 2004 - What are the benefits?]
The second way and the focus of this article is via an application to the Supreme Court of Victoria (s.39 of the Sex Offender Registration Act 2004). While the Chief Commissioner can only suspend reporting obligations for up to 5 years, the Supreme Court of Victoria can suspend reporting obligations for life.
You must meet the following criteria:
- You are a registrable offender;
- You are required to comply with reporting obligations for life; and
- 15 years have passed since you were sentenced or released from custody.
You are not eligible to apply if you became the subject of life-long reporting under a corresponding Act whilst in a foreign jurisdiction before becoming the subject of life-long reporting in Victoria, or if you are on parole in respect of a registrable offence.
When a client contacts our office and we have checked whether they meet the eligibility criteria, we then refer them to a qualified forensic psychologist to undergo a risk assessment as to future sexual offending. The psychologist prepares a report that we can give to the Court in support of the application. The report must identify that the person is a low or no risk of reoffending, otherwise the application will not succeed.
Once we have the report, we prepare the application. This involves comprehensive written submissions to the Court addressing the factors the Judge will take into account (set out below). To help us prepare, we will gather documents relating to the original offence including the Judge's Sentencing Remarks, the Indictment or charges, the prosecution summary of facts, witness statements, a transcript of the record of interview and old psychological reports. If a client has this material, that will help but if not (which is not uncommon after 15 years), we will try the previous solicitor, the Court and the prosecution or police.
An application is then made by filing the required Application Form, Affidavit and any supporting material with the Supreme Court Registry and serving those documents on the Chief Commissioner of Police.
A hearing date is then set with the Court. Witnesses can be called at the hearing. How long it takes will depend on whether the Chief Commissioner of Police opposes the application.
Ultimately, the Judge must not make an order suspending reporting obligations unless they are satisfied that the person poses no risk or a low risk to the sexual safety of the community and it is in the public interest to suspend reporting obligations.
The Judge will take into account:
- the seriousness of the registrable offender's registrable offences and corresponding registrable offences; and
- the period of time since those offences were committed; and
- the age of the registrable offender, the age of the victims of those offences and the difference in age between the registrable offender and the victims of those offences at the time the offences were committed; and
- the registrable offender's present age; and
- the registrable offender's total criminal record; and
- any other matter the court considers appropriate.
The Chief Commissioner is allowed to make submissions to the Court in relation to the application generally but also specifically in relation to the risk the registrable offender presents to the sexual safety of the community.
If you are a registrable offender for life and 15 years have passed since you were sentenced or released from prison, contact our office to discuss whether you are eligible to make an application to the Supreme Court for suspension of your reporting obligations.
