Being placed on the Sex Offenders Register not only creates onerous reporting obligations for registered persons, but it also shrouds them in a stigma that often long outlasts their sentence. While some individuals are required to report for periods of 8 to 15 years, others face lifelong reporting obligations. A recent ruling by the Supreme Court of Victoria has established that individuals with lifelong reporting obligations can now successfully apply to have those obligations suspended.
In this article, we will explore the first-of-its-kind application made by our office to suspend a registered person's reporting obligations for life, an application which was granted by the Supreme Court of Victoria.
Suspending Reporting Obligations
There are two ways that a registered person may suspend their reporting obligations.
Application to the Chief Commissioner of Police – 5-Year Suspension
S 45A of the Act allows the Chief Commissioner of Victoria Police to suspend a registered person's reporting obligations for a period of up to 5 years. These applications require the Chief Commissioner to take into consideration a number of factors to decide whether to suspend reporting obligations, including:
- The seriousness of the offending;
- The period of time since the registerable offences were committed;
- The age of the registered person;
- The age of the victims of the registerable offending;
- The extent to which the registerable offender has complied with their reporting obligations;
- The registered person's physical and cognitive capacity to comply with their reporting obligations;
- Any other matter that the Chief Commissioner of Police considers appropriate.
We regularly assist people with these applications.
Application to the Supreme Court of Victoria – Life-Long Suspension
Whilst the Chief Commissioner of Police may only suspend a registered person's reporting obligations for up to 5 years, s 39 of the Act allows for the Supreme Court of Victoria to suspend someone's reporting obligations for life.
As detailed in our article Applying for Suspension of Sex Offender Registration Act Reporting Obligations, For Life, in order to make an application under this section, there are two hurdle requirements that must be satisfied. First, 15 years must have passed since the registered offender was sentenced for the registerable offending, or since they were released from custody for the registerable offending; and secondly, the registered person must not have become the subject of a life-long reporting obligation in a foreign jurisdiction.
Once those two hurdle requirements have been met and an application has been made, the Supreme Court must be satisfied that the registered person poses no risk or a low risk to the sexual safety of one or more persons or of the community, and, that it is in the public interest to suspend the registered person's reporting obligations.
Supreme Court Decision of GH [2024] VSC 216 (3 May 2024)
In September of 2023, The Supreme Court of Victoria heard the first ever application to suspend a registered person's reporting obligations for life under s. 39.
Sophie Parsons appeared on behalf of our client at the hearing instructed by Amelia Ramsay who also prepared the application. Our application was successful, with the Court suspending reporting obligations for the remainder of the applicant's life after having already completed 15 years on the register.
The reasons for this decision were published on 3 May 2024. The decision provides guidance as to the risk test, and the public interest consideration that must be satisfied before a Court can grant the application and suspend the registered person's reporting obligations.
In GH, the Court found that the applicant was a low risk to the sexual safety of the community and that it was in the public interest to suspend his reporting obligations for the remainder of his life.
Background
At the time of the registerable offending in 2006, the applicant was 19, and his girlfriend ("LK") was 15. Both sets of parents were initially supportive of the relationship. After some time together, the couple decided to engage in consensual sexual intercourse. This occurred on 3 occasions. On the 3rd occasion, the couple were discovered by LK's parents who reported the matter to police. LK refused to make a statement and was not supportive of the charges being brought by police. Despite this, the applicant made full admissions in a police interview and he was subsequently charged with three counts of sexual penetration of a person under the age of 16.
The applicant pleaded guilty to the three charges in 2007, and the sentencing judge observed that, although the charges were serious in nature, the offending itself was at the lowest end of the scale of seriousness for that type of offending. Further, the offending was not predatory in nature, and occurred in the context of a loving relationship. Whilst this was not a defence to the charge, it did result in her Honour imposing an appropriately lenient sentence. The applicant also became a registerable offender and – as the offending was a category 1 offence – included a mandatory lifelong reporting period.
Preparation for the Application to Suspend Reporting Obligations
The applicant was motivated to proceed with the application because the reporting obligations were becoming increasingly burdensome in the context of their family and working life.
As part of our preparation for the application, an expert report was obtained in which Dr Angela Sorotos, a forensic psychologist, assessed our client's risk to the sexual safety of any one person and of the community. The applicant was assessed as "low risk". Several character references were also obtained outlining the applicant's contribution to family, employment and the community. Dr Sorotos gave evidence at the hearing in relation to the assessment of risk and other relevant matters.
The Chief Commissioner of Police contacted LK to obtain her opinion in relation to the application. LK was supportive of the application, reiterating that she did not want the charges brought in the first place.
Risk Test
The decision in GH confirmed that the determination of someone's future risk of offending is heavily informed by psychological assessment, and that a positive psychological report coupled with a substantial period without further offending will be substantially determinative to the presiding judge.
Public Interest Test
The decision of GH also confirms that the legislation created a two-step test, that a registered person must be a low risk of future offending and that it is in the public interest to suspend the reporting obligations.
The Court found that satisfaction of the risk test may be favourable to the finding of public interest, however, it is not determinative, and the following factors may be considered as part of the public interest test:
- The seriousness of the registered person's registerable offences and corresponding registerable offences;
- The period of time since those offences were committed;
- The age of the registered person, the age of the victims of those offences and the difference in age between the registered person and the victims of those offences, as at the time those offences were committed;
- The registered person's present age;
- The registered person's total criminal record;
- The views of the victim in the registerable offending.
The Court also found that the public interest test would be informed by the balancing of the rights of the registered person, and the community as contained in the Charter of Human Rights and Responsibilities Act 2006 (Vic). The rights of the registered person, such as the right to privacy and to freedom of movement, need to be balanced against the community's right to safety, and the protection of children and families also enshrined within the charter.
Requesting Legal Assistance
Becoming a registerable offender creates substantial and continuing obligations which can severely impact on the quality of a person's life. The recent decision of GH confirms that even if you are subject to lifelong reporting obligations, it is possible to have them suspended. Whether you require assistance in defending allegations that you have breached your obligations under the Act, or if you are trying to have your reporting obligations suspended, Doogue + George lawyers can help you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.