Our firm recently ran an application in the Supreme Court for suspension of reporting obligations under section 39 of the Sex Offender Registration Act 2004 (Vic). This was the first application of its kind. The application was granted and our client's reporting obligations were suspended. The Judge who heard the application is yet to publish written reasons in the matter. Those reasons will set out the test to be applied in cases moving forward.
When there is no existing legal precedent in Victoria, we look to other states for guidance. SP v The Chief Police Officer was the first case in the ACT to consider an application for suspension of reporting obligations for registered sex offenders under s 97(2) Crimes (Child Sex Offenders) Act 2005 (ACT).
The relevant provisions of the ACT Act examined by the Court in this case largely mirror the equivalent provisions under the Victorian Act, albeit with a few distinctions.
The case offers valuable insights into how the law in Victoria regarding the suspension of reporting duties for registered sex offenders could potentially function.
Facts
The applicant in this case, SP, was a 64-year-old man who pled guilty in July 2003 to six counts of engaging in sexual intercourse with a person below the age of 16. The offences occurred in 1991 when he was a 35-year-old school teacher, and the victim was a 15-year-old student in his class. SP received three-year imprisonment sentences for each count, suspended upon entering into a four-year good behaviour recognisance.
A subsequent legal change in June 2005 categorized SP as a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT). He was required to report annually to the Chief Police Officer along with other travel and employment-related obligations. In 2019, SP applied to the ACT Supreme Court to suspend his reporting obligations. The Court examined several factors, including the gravity of the offences, time elapsed since the occurrences, the age disparity between the offender and victim, SP's current age, and his criminal history. Ultimately, the court ruled in favour of granting the suspension application.
The Court's Consideration of SP's Case
Seriousness of the Offence
As per s 97(4)(a) of the ACT Act, one of the factors that the court must consider is the 'seriousness of the offender's registrable offences and corresponding registrable offences'. An equivalent provision exists in the Victorian Act under s 40(3)(a).
In SP's case, the court made the following remarks with respect to seriousness:
It was noted that the sexual relationship between the applicant and
the victim was 'consensual, insofar as such a relationship
could be'. However, the issue of consent was not explicitly addressed in the
court's consideration of offence gravity.
One of the key factors when evaluating the gravity of an offence is the maximum penalty it carries and how similar offences are currently being sentenced. Penalties and sentencing practices change over time, as societal norms evolve. As applications for suspension can only be made 15 years after the initial sentencing, one of the questions that may arise is how the court should account for shifts in community standards when assessing the seriousness of an offence.
In SP's case, Crowe AJ had regard to the maximum penalty applicable at the time when SP was sentenced, however the reasoning underlying this was not explicitly stated. Likewise, the South Australian cases that His Honour considered in interpreting the Act did not explicitly grapple with this issue.
Prior Convictions
One of the factors that the court must consider in determining an application for suspension is the applicant's entire criminal record. This encompasses any violations of reporting obligations which are considered criminal offences.
In SP's case, the applicant had been found guilty of two breaches of reporting obligations within the 15-year period leading up to his application for suspension.
The initial breach involved a failure to report to the police within the stipulated timeframe after returning from out-of-state travel. He pleaded guilty and received an outcome without conviction.
The second breach occurred when the applicant accepted payment for refereeing two soccer matches involving children, in violation of section 127 of the Act which prevents registrable offenders from engaging in child-related employment. The applicant pled guilty and received a four-month periodic detention sentence. He explained to the sentencing court that he was unaware at the time that the refereeing work constituted employment, despite receiving payment for it.
In the context of the application for the suspension of his reporting obligations, both the applicant's and respondent's expert witnesses had regard to these matters in evaluating his likelihood of re-offending. However, these breaches did not significantly impact on their assessment of risk.
Although the court acknowledged the viewpoints of the experts in his ruling, the judgment does not further elaborate on these matters. Ultimately, the applicant's breaches of reporting obligations held relatively little weight in the court's overall evaluation of the application.
In terms of what this says about how the equivalent provision will apply in Victoria, SP's case seems to indicate that applicant's criminal history may be a factor not only in the court's consideration of the appropriateness of granting the order, but also in the evaluation of risk. Further, the case demonstrates that breaches of reporting obligations may not always be fatal to a suspension application, depending on the context and circumstances.
Risk
Section 97(3) of the ACT Act provides that:
Similarly, in Victoria, s 40(2)(a) provides that a court must not
make an order unless it is satisfied that:
The court in SP's case was satisfied that the applicant did not
pose a risk to the community sufficient to preclude the court's
discretion to grant the suspension order.
Courts depend on expert opinions of psychologists and psychiatrists to inform the assessment of risk of recidivism and risk to the community more broadly. In the case of SP, both the applicant and the respondent provided favourable psychiatric risk-assessment reports which concluded that SP posed a low risk of re-offending.
There were several factors in SP's case which worked in his favour. Aside from the two breaches of his reporting requirements, he had mostly been compliant with his supervision and reporting obligations over his 16-year period as a registered offender. Additionally, he had engaged positively with the ACT Corrections Adult Sex Offender Program, a rehabilitative program aimed at addressing offending behaviour in sex offenders. Finally, His Honour considered the fact that SP had not committed a further sexual offence in the nearly 29 years since his initial offending to be 'powerful evidence that the course of criminal conduct of which he was convicted represented a one-off loss of judgment, and moral failure'.
What is meant by "a risk"? Does it mean "any risk"?
One of the legal questions that arose was how the phrase 'does not pose a risk' should be interpreted by the courts.
In SP's case, Crowe AJ adopted Nicholson J interpretation of a comparable provision in the Child Sex Offenders Registration Act 2006 (SA). Justice Nicholson expressed the view that 'does not pose a risk' should not be interpreted literally, as 'to do so would limit the reach of the discretion to suspend reporting obligations ... to such an extent as to effectively empty it of all content'. Instead, His Honour found that the relevant section refers to an 'appreciable risk,' meaning 'one that is capable of being estimated, perceptible and sensible'.
Under the Victorian Act, the court must be satisfied that the applicant poses 'no risk' or a 'low risk'. In practice, it is difficult to envision how any registered offender could be said to fall within the 'no risk' category. As stated by Nicholson J, 'the experience of the courts in this and related areas is that the experts will never (and rightly so) commit themselves to an absolute position of no risk.' Therefore, it is reasonable to assume that most, if not all, eligible offenders will fall within the 'low risk' category. It remains to be seen how the term 'low risk' will be interpreted in Victoria.
What is the standard of proof in applying the risk test?
With respect to the standard of proof, Crowe AJ followed the reasoning of Nicholson J in the case of L, R v Commissioner of Police. In that case, Nicholson J deviated from his previous stance on the burden and standard of proof as applied in a previous case of C, M v Commissioner of Police [2014] SASC 163. In CM, His Honour applied the civil standard of 'on the balance of probabilities', whereas in LR, Nicholson J concluded that applying the civil standard 'may not be apposite' in this context. Instead, His Honour found that the essential question for the court in applying the risk test is whether or not the court is satisfied of the requirement set out in the relevant section. In simpler terms, whether there is or is not an appreciable risk.
The wording of the Victorian test ('the court must not make the order unless') makes clear that the presumption is against the applicant in this regard.
Judicial discretion
In relation to the question of judicial discretion, Crowe AJ drew upon the observations of Nicholson J in the South Australian Supreme Court case of C, M v Commissioner of Police [2014] SASC 163.
Justice Nicholson was of the view that the power to issue a suspension order is discretionary. This means that even if the court is satisfied that the applicant has met the eligibility criteria set out in the legislation, the court retains discretion to refuse the application if it considers that it is appropriate in all the circumstances to do so. His Honour stated that if the court is satisfied that the applicant does not pose a risk to the community, whilst there is no obligation on a Court to grant a suspension application, such a conclusion is 'ordinarily highly favourable.'
Public interest test
In Victoria, there is a further requirement in s 40(2)(b) that the Court must be satisfied that it is in the public interest to suspend the reporting obligations of the registered offender. The requirement for suspension to be in the public interest is unique to Victoria; no other State or territory has this additional provision.
The rationale behind introducing the public interest test is clarified in the second reading speech:
In essence, the public interest test requires the Court to balance the community's interest in maintaining offenders on the register for public safety against the need to avoid unwarranted encroachments on the rights and freedoms of registered offenders.
This added provision in the Victorian law explicitly mandates that the court must consider these public interest factors when deciding whether or not to issue an order under the relevant section.
Key Takeaways
- SP's case provides some valuable insights into how the suspension of reporting duties for registered sex offenders might operate within Victoria's legal framework
- The key considerations in this case included the gravity of the offences, the applicant's criminal record (including breaches of reporting obligations), and a rigorous assessment of the risk posed by the applicant to the community
- Considering that applications for suspension can only be made 15 years post-initial sentencing, there remains a question as to how the courts should account for shifts in community standards when evaluating the seriousness of a registrable offence
- In order to grant a suspension application, the court must be satisfied that the applicant does not pose an 'appreciable risk' to the safety of the community
- Engagement in rehabilitation programs, lack of subsequent offending, and favourable expert risk-assessment reports will generally be highly favourable to applicants in suspension applications
- Breaches of reporting obligations may not be a definitive barrier to granting a suspension order, depending on the context
- While meeting the eligibility criteria set out in the legislation is crucial, the court may still exercise its discretion to refuse an application deemed appropriate based on the unique circumstances of each case
Footnotes
1 SP v The Chief Police Officer [2020] ACTSC 114 [28]
2 Ibid [1]
3 Victorian Act s 40(3)(e); ACT Act s 97(4)(e).
4 SP v CCP at [27]
5 C, M v Commissioner of Police [2014] SASC 163
6 S 40(1)
7 L, R v Commissioner of Police [2018] SASC 181 at [13]
8 [2018] SASC 181
9 Ibid at [12].
10 C, M v Commissioner of Police [2014] SASC 163 [14]
11 Second Reading Speech, Sex Offenders Registration Amendment (Miscellaneous) Bill 2017 (Vic), 11 May 2017
