5 Strengthening the scheme by sharpening its focus - selecting who is on the register

Introduction

  1. 5.1 As the Commission pointed out in Chapter 2, the purpose of the sex offender registration scheme is evolving, with one of its primary functions now being to operate as a source of information for child protection authorities about children who might be at risk of harm.1 It appears that there are many reasons for this change of emphasis from a scheme that was designed as a static information gathering tool to a mechanism which allows child protection authorities to take action to protect children from exposure to people who might sexually abuse them.
  2. 5.2 The Sex Offenders Registration Act 2004 (Vic) establishes the first of three statutory post-sentencing schemes that seek to protect children from exposure to people who are living in the community after completing a sentence for sexual offending. It was followed in 2005 by serious sex offender legislation2 and the Working with Children Act 2005 (Vic).
  3. 5.3 It is highly likely that the introduction of the later legislation has contributed to the evolving purpose of the sex offender registration scheme because it is no longer the sole means of taking preventative action when responsible authorities fear that a particular convicted sex offender might pose a risk to the safety of children.
  4. 5.4 The Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic), in particular, permits a targeted response when there is evidence to suggest that an offender should be detained in custody, or subjected to close supervision while living in the community, because of the likelihood of re-offending.
  5. 5.5 Another reason for the evolving purpose of the sex offender registration scheme probably stems from the fact that the original aim was not clear to people involved in the daily administration of the legislation. The Sex Offenders Registration Act is based on the unsustainable assumption that all people convicted of the same offence pose the same risk of re-offending and should have the same reporting obligations for the same period.
  6. 5.6 As discussed in Chapter 4, not all sex offenders present the same risk of committing further sexual offences. The automatic registration of every adult who commits a Class 1 or Class 2 offence has extended the reach of the scheme to offenders who are highly unlikely, based on any reasonable assessment, to offend again. In practice, it has not been apparent to people who witness the scheme in operation, such as judges, magistrates, legal practitioners and police officers, why reporting obligations are imposed on an offender who is highly unlikely to re-offend.
  7. 5.7 The current undifferentiated method of selecting who should be registered solely by reference to the number and type of offences for which they have been convicted has led to a Register that appears to have outstripped initial estimates of size. The Register, which is becoming increasingly expensive to maintain, contains a vast amount of information of variable use. It is time to assess whether the benefits of the scheme in its current form justify its escalating cost, especially as there are approximately 50 new registrants each month.3
  8. 5.8 As at 1 December 2011, 4165 people had been included on the Sex Offenders Register since the scheme commenced on 1 October 2004. At the current rate of increase, there will be approximately 10,000 registrations by 2020. As details are collected from all registered offenders for many years—and from some for life—the value of the information that is collected is highly likely to decline as the Register continues to expand. Details about people who might be potentially dangerous re-offenders sit alongside those of offenders who pose no risk of harm, with police and child protection authorities having no reasonable means of allocating risk ratings, and investigative resources, to particular offenders.
  9. 5.9 The long reporting periods, with limited review, impose a significant burden on the police to compile and manage information that may be of little operational value in many instances. Demands on the time of child protection workers at the Department of Human Services are also building as the number of reports of contact between registered sex offenders and children continues to rise. Understandably, all of these reports are investigated regardless of the risk of re-offending posed by a particular offender, unless there is compelling evidence of the child’s safety.4
  10. 5.10 In Chapter 2, the Commission recommended amending the statutory purpose of the Sex Offenders Registration Act in accordance with current expectations that the scheme can play a role in protecting children from sexual abuse.5 In this chapter, the Commission makes a series of recommendations designed to support the evolving child protection orientation of the scheme and to strengthen the scheme by sharpening its focus.

Statutory inclusion

Decision to adopt this approach

  1. 5.11 The current system of statutory inclusion operates as a form of mandatory registration for adults who have been sentenced for child sexual offences. There are no exceptions.
  2. 5.12 When introducing the Sex Offenders Registration Bill to Parliament, the Minister for Police and Emergency Services did not indicate why automatic statutory inclusion had been chosen as the method of selection for inclusion in the Register and the matter was not raised in subsequent debate on the Bill.
  3. 5.13 The Commission believes that statutory inclusion was probably adopted in Victoria because it was a feature of the model legislation on which the registration schemes in all states and territories are based. Statutory inclusion has been adopted in all jurisdictions except Tasmania.6 The Tasmanian registration scheme relies on individual assessment by a court, although there is a statutory presumption that the court will make a registration order for offenders who are found guilty of the most serious offences.7
  4. 5.14 As discussed in Chapter 2, the model legislation was agreed by the Australasian Police Ministers Council after receiving a report by an inter-jurisdictional working party.8 The report reflected the view that people convicted of certain sexual offences and other serious offences demonstrate a clear risk to child safety and therefore demand automatic registration.9
  5. 5.15 The working party’s arguments for statutory inclusion appear to have relied largely on the perceived disadvantages of inclusion by court order. It was suggested that discretionary inclusion would have a significant impact on the justice process. Doubt was cast on whether the courts were able to determine risk to the community, and it was suggested that a court-based system could create unnecessary delays and cause additional stress to victims. The working party also argued that discretionary inclusion would place an unacceptable burden on the police, or prosecutors, because they would be criticised if they failed to apply for a registration order for an offender who subsequently harmed a child.10

The consequences

  1. 5.16 As noted in Chapter 3, statutory inclusion accounts for nearly all of the people on the Victorian Sex Offenders Register. Approximately 97 per cent of registered offenders have been included in the scheme as an automatic consequence of being sentenced for a registrable offence.11
  2. 5.17 Following seven years experience of the operation of the scheme in Victoria, the Commission has found few supporters of statutory inclusion. Of the submissions that addressed the issue, all but one called for individual assessment of people for inclusion in the Register.12 Similar sentiments were expressed during consultations.
  3. 5.18 The general concern reflected by many people and organisations was expressed by Liberty Victoria:

Notwithstanding the importance of the objective of preventing sexual offences, there are real doubts as to whether the Act in its present form is best suited to achieve such aspirations, and whether it strikes the right balance between protecting the community and protecting the rights of registered persons.13

  1. 5.19 The issues raised about statutory inclusion concerned the following overlapping themes:
  • recognising and responding to the risk of recidivism
  • cost implications
  • effectiveness of the scheme
  • fairness issues.

Recognising and responding to the risk of recidivism

  1. 5.20 The automatic registration of adult offenders as an administrative consequence of committing certain offences reflects—and reinforces—the widely held, but inaccurate, view that all child sex offenders are people with similar behavioural patterns who are all highly likely to re-offend.
  2. 5.21 These views were evident during debate on the Sex Offenders Registration Bill, when the Minister for Police and Emergency Services explained:

The philosophy behind [the sex offenders register] was effectively that sex offenders—particularly paedophiles or child sex offenders—are people who are notoriously recidivist in their behaviour, and that while somebody who has served their sentence is entitled to the view that they have done their time and you do not want to carry on an ongoing punitive regime against them, the very significant recidivist nature that goes with some sexual offences requires that we keep some sort of ongoing tab on those people without excessively impinging upon their rights.14

  1. 5.22 The working party that reported to the Australasian Police Ministers Council on a national approach to registration appears to have recognised, however, that not all sex offenders present the same risk of re-offending. It proposed that registration should not be automatic where the sentencing court does not impose a custodial or supervised sentence because the court’s decision suggests that the offender does not pose a significant risk to the community. Nevertheless, it went on to argue for statutory inclusion because courts are not necessarily in the ‘best position to determine future risk’.15
  2. 5.23 The position advanced by the working party was not supported by the submissions made to the Commission. Victoria Legal Aid, for example, observed that:

The legislation operates in such an automated way that a number of people who are convicted of ‘relevant offences’ face registration even though they do not pose an ongoing risk to the community.16

  1. 5.24 Professor Paul Mullen, a leading forensic psychiatrist and researcher in this area, shares this view and says that the Victorian Register has been flooded with people who are unlikely to re-offend.17
  2. 5.25 These concerns are reinforced by recent examples of unnecessary registration. Earlier this year, County Court Judge Lisa Hannon presided over a plea of guilty by a 19-year-old soldier who had sexual intercourse with two teenage girls in circumstances where the sexual activity would have been legal were it not for the girls’ ages.18 The man was sentenced to a community based order and, as an automatic consequence, is now a registered sex offender for the rest of his life.19 Judge Hannon is reported to have said during the hearing:

You are in my mind no risk to the sexual safety of the community. To mark you for life in this way is not justified and of no utility to the community.20

  1. 5.26 The Office of the Privacy Commissioner said that it is vital that judicial discretion be the ultimate determinant of who is included in the Register:

Courts are uniquely placed as the best arbiter to determine the question of risk, based on the evidence and history at hand, rather than with reference solely to the offence. 21

  1. 5.27 Even though there was overwhelming support for a court-based inclusion system, most commentators expected the court’s discretion to be guided in all cases, and limited where the offence was particularly serious.
  2. 5.28 The Australian Community Support Organisation said that the court’s discretionary power should be restricted to the consideration of first time sex offenders and based on the results of a risk assessment and the seriousness of the offence.22 The Law Council of Australia advocated discretionary inclusion in all cases but argued that it is particularly important where an offender who is found guilty is discharged without a custodial or supervisory sentence being imposed.23
  3. 5.29 Other submissions suggested that the extension of the court’s discretion could be accompanied by a rebuttable presumption that registration will occur where certain offences have been committed.24
  4. 5.30 Although they support different outcomes, the approach recommended by the working party to the Australasian Police Ministers’ Council and many of the proposals put to the Commission share a common feature. They distinguish between the most serious offences, which should result in registration unless exceptional circumstances apply, and those where there should be individual assessment of the risk of re-offending.

Cost implications

At the time of selection
  1. 5.31 The preference for automatic statutory inclusion in the Register appears to have been strongly influenced by financial considerations. In support of its recommendation for statutory inclusion, the working party reporting to the Australasian Police Ministers’ Council on a national registration scheme pointed out that a court-based system would add to the workload of the prosecution and the courts.25
  2. 5.32 Automatically imposing reporting obligations on an offender as a consequence of being sentenced for a child sexual offence is clearly cheaper than requiring the prosecution to make an application for a registration order to a court. Individual assessment of each offender will probably extend the duration of sentencing proceedings. However, the Commission does not consider this a sufficient reason to continue a system that is not effectively focused on the offenders who pose a risk of harm to children.
  3. 5.33 The Commission also notes that, in practice, statutory inclusion may have increased the workload of the courts and the cost of proceedings in another way. The Commission was told during consultations that the prospect of statutory inclusion in the Sex Offenders Register is a disincentive to pleading guilty.26 Earlier this year, an evaluation of the Department of Justice sexual assault reform strategy found that, despite the early settlement of matters being one of the objectives of the reforms, the number of defendants pleading guilty at initiation had declined:

in 2009/10, for every 100 defendants who plead not guilty at initiation, only 37 plead guilty. This is a considerably lower ratio than for all other years considered, and represents a large decline from 2007/08 (68 guilty pleas for every 100 guilty pleas).27

  1. 5.34 One of the possible reasons suggested for the decline was that the mandatory requirement for inclusion in the Register creates a disincentive for a guilty plea.28
  2. 5.35 The possibility that statutory inclusion is increasing the workload of the courts was recently suggested by the County Court. In its 2010-11 Annual Report, the Court observed that sexual offences made up less than a quarter of the criminal matters initiated but accounted for almost half the trials. Noting that this has been a consistent trend for the past four years, the Court explained that:

This is in part due to the fact that there is a low plea rate in sex cases. In the last financial year, 74% of non-sexual offence cases were finalised by the offender pleading guilty. In sexual offence cases, only 50% of cases resolved in this way.

It is unclear why there is such a low guilty plea rate for these cases, although this has been consistent for a number of years. It may be that offenders are likely to receive immediate custodial sentences for these offences and be subject to reporting requirements for a significant period of time under the Sex Offenders Registration Act 2004.29

Operational costs
  1. 5.36 Although individual assessment of child sex offenders will have resource implications for the courts, any consideration of the financial impact of sex offender registration needs to extend beyond the selection process to the operational costs of the scheme to Victoria Police and the Department of Human Services.
  2. 5.37 The registration of sex offenders is a highly expensive undertaking and costs will continue to mount as the number of registered offenders increases substantially. As noted above, the Chief Commissioner of Police advises that, as at 1 December 2011, a total of 4165 people had been included in the Victorian Sex Offenders Register.30 By the end of 2012, nearly 5000 people will have been included in the Register, and by the end of 2014 that figure should reach approximately 6200 if the legislation remains in its present form.31 The Director, Police Integrity, who monitors the management of information in the Register, estimated earlier in 2011 that there would be 20,000 individuals registered by 2034.32 This is probably a conservative estimate.33
  3. 5.38 Several features of the registration scheme are driving the increase in numbers:
  • the statutory inclusion of all adult offenders who commit Class 1 and Class 2 offences
  • lengthy reporting periods, including mandatory life-long reporting conditions for many offences
  • limited opportunities for anyone to be removed from the Register.34
  1. 5.39 An observation repeatedly made to the Commission in submissions and during consultations is that the current system of statutory inclusion is placing an unsustainable burden on police in collecting and processing information from registered sex offenders, and on child protection workers in responding to reports of contact between registered sex offenders and children.
Victoria Police
  1. 5.40 As at 1 December 2011, 283035 registered sex offenders were living in the community. Police compliance managers must meet each of them at least once a year, and they will be in contact with them more frequently if their personal details change, if they travel, or if they report unsupervised contact with children. Reports of contact with children are forwarded to the Department of Human Services for a protective investigation.36
  2. 5.41 The Commission understands that Victoria Police has not received any additional resources to administer the scheme. As noted in Chapter 3, there are approximately 280 police compliance managers statewide, in addition to 20 staff at the Sex Offenders Registry. Some compliance managers monitor up to 120 offenders, though their duties under the Sex Offenders Registration Act are in addition to other policing duties.37
  3. 5.42 The Privacy Commissioner pointed out that automatic registration can result in costly and time-consuming registration of low risk offenders.38 Professor Terry Thomas, a leading expert in this field, has called for more discretionary inclusion because it would

avoid the register becoming ‘clogged up’ with people who are not a continuing risk yet are still registered and still have to be dealt with on a routine basis by the police—arguably a waste of police time and registrants’ time.39

The Department of Human Services
  1. 5.43 The growth in the size of the Register is also affecting the workload of child protection workers at the Department of Human Services. Every month, the Department receives between 90 and 100 reports from Victoria Police of contact between registered sex offenders and children.40 These reports are in addition to the notifications made to the Department by other sources.41
  2. 5.44 As the information received from Victoria Police is unfiltered, the Department of Human Services is obliged to undertake a risk assessment in each instance in case there is a risk of harm to a child. This can be a time consuming exercise as it involves consideration of the registered offender’s history, home visits, and discussions with a child’s parents or carers before assessing whether any child is at risk of harm.
  3. 5.45 The Ombudsman observed in his report on the management of sex offenders that, between October 2004 and March 2010, 899 registered offenders reported to Victoria Police that they had had contact with a child.42 The police did not notify the Department of Human Services about the contact reported by 376 of those offenders.43 Discovery of this omission saw the Department of Human Services undertake a risk assessment of all of those cases.
  4. 5.46 The Department ascertained that the 376 offenders had been in contact with 641 children.44 Following further investigation, 11 protection applications were issued, of which only five or six were made on the primary basis of risk of harm from sexual abuse.45

Effectiveness of the scheme

  1. 5.47 Statutory inclusion, and the consequential registration of some offenders who do not pose a risk of harm to children, has also been criticised for weakening the effectiveness of the scheme. The Commission has been told that the task of monitoring these offenders diverts police attention from those who pose a higher risk to the community.
  2. 5.48 It has also been suggested that as the size of the Register increases, the value of the information diminishes. The Crime Victims Support Agency described this as ‘diluting the pool’ of information.46
  3. 5.49 This over-inclusion is occurring even though there is no evidence of the effectiveness of Australian sex offender registration schemes in discouraging people who have been convicted of sexual offending against children from re-offending.

Fairness issues

  1. 5.50 As a matter of principle, a regime that relies on statutory inclusion is inherently unfair to offenders who pose little or no risk of re-offending. It seems unlikely that those who devised the scheme foresaw outcomes such as the lifetime of reporting for the 19-year-old soldier who was described by a County Court judge as presenting ‘no risk to the sexual safety of the community’.47 This young man faces the prospect of being obliged to comply with sex offender reporting obligations for the next 60 years.
  2. 5.51 A number of submissions referred to the unfair consequences of statutory inclusion for young people.48 Typically, although not exclusively, they arise from young people being found guilty of committing child sexual offences in the following circumstances:
  • Young sexual partners, for example an 18-year-old male and 15-year-old female, in an ongoing, otherwise consensual sexual relationship. The adult male is committing the offence of sexual penetration of a child under the age of 16.49
  • Young people exploring their sexuality by taking intimate pictures of themselves and forwarding them electronically—a practice known as ‘sexting’.50 This activity can fall under state child pornography offences as well as Commonwealth offences involving the use of carriage services in connection with child pornography.
  1. 5.52 Victoria Legal Aid has both a specialist youth crime and a sexual offences practice. It described the dilemma for young people in consensual sexual relationships:

The relationship may arise in a context of an extended friendship group where the young people see each other as contemporaries. However if one of them is under 16 and the age disparity is more than two years an offence is committed. A conviction for this offence can result in life time registration. This might be the case even if the victim has subsequently turned 16 and the relationship is ongoing, consensual and supportive.51

  1. 5.53 Victoria Legal Aid also noted in its submission that most young people have access to computers and mobile telephones with a camera and many are engaged in ‘sexting’.52 A similar finding arose from a study of the prevalence of sexting among university students conducted by the Monash Law Society’s Just Leadership Program.53 The Commission met a young man who was registered for life after being convicted of taking and sending photographs of his 17-year-old girlfriend.54 Registration has significantly interfered with his employment prospects.
  2. 5.54 The Law Institute of Victoria submitted that the mandatory nature of the registration scheme has led to unjust outcomes where the legislation has not kept pace with technological and societal changes:

It is arguable that these (often youthful) offenders pose little risk to society, yet the long-term consequences of inclusion on the Register are profound. Significantly, registered offenders are prevented from applying for or engaging in child-related employment. The definition of child-related employment is very broad and includes most conceivable jobs that would put the registered offender in contact with children.55

  1. 5.55 Victoria Legal Aid said that conviction for offences involving young people in consensual sexual relationships or engaging in the practice of ‘sexting’ is a ‘poor predictor of risk to children’, and went on to observe:

Yet young people in these categories face onerous obligations under the Registration Act. This can have a substantial impact upon the young person’s life, including employment and future relationships. For example, a young person is placed on the Register following conviction for a “sexting” offence. They will face employment restrictions. If they later form a relationship with a person who has a child from another relationship they must report this. If they become parents their involvement in the normal activities of their own child’s life will be severely impacted.56

  1. 5.56 Most submissions called for statutory inclusion to be replaced with individual assessment of offenders. Others, including the Centre Against Sexual Assault and CEASE, submitted that young people should not be on the Register at all.57
  2. 5.57 The legal implications for young people of sexting have recently generated media attention and public debate in Victoria. On 1 September 2011, the Parliamentary Law Reform Committee was asked to inquire into the matter.58

Commission’s conclusions and recommendations

  1. 5.58 The Commission believes that the sex offenders registration scheme can be strengthened by sharpening its focus. Individual assessment of the need to register particular offenders would make the scheme more effective and much fairer. This individual assessment is best performed by judges and magistrates who can make decisions based on the facts of each case, including the circumstances and history of the particular offender.
  2. 5.59 While there is some merit in the proposal that decisions about registration should be deferred until the offender has completed any custodial sentence, the Commission has concluded that it is preferable for the sentencing court to make decisions about sex offender registration at the time of sentencing.
  3. 5.60 Judges and magistrates will be familiar with the evidence against the offender and will have heard their plea in mitigation. They will have considered the offender’s prior criminal history, if any, and a forensic psychiatric or psychological report addressing, among other things, the risk of re-offending. However, if there is insufficient evidence upon which to assess the need for inclusion in the Register, judges and magistrates have wide powers to gather relevant information.
  4. 5.61 Individual assessment is highly likely to enhance the effectiveness of a scheme that places a great strain on the resources of Victoria Police and the Department of Human Services without, as yet, any clear evidence of its success in reducing child sexual abuse. If registration were more closely aligned with the risk of harm to children, the rate of growth in numbers of registered offenders might be manageable. The police and child protection resources allocated to administering the scheme and taking protective action could be directed to those people who are more likely to re-offend.

Recommendation

4. A person should be included in the Sex Offenders Register only by order of a court. The current system of automatic inclusion of adult offenders following a finding of guilt for an offence listed in schedule 1 or 2 of the Act should be discontinued.

 

 

 

Registrable offences

Registrable offences under the current scheme

  1. 5.62 The size and rate of growth of the Sex Offenders Register is determined not only by the method by which offenders are selected for inclusion but also by the number of offences that can lead to registration.
  2. 5.63 As discussed in Chapter 3, the registrable offences under the current scheme are divided into four classes that are listed in four schedules to the Sex Offenders Registration Act. Class 1 and 2 offences are child sexual offences. Class 3 and 4 offences are adult sexual offences.
  3. 5.64 Offenders who are sentenced for Class 1 and 2 offences are registered as an automatic consequence of conviction. Those who are sentenced for Class 3 and 4 offences may be registered at the discretion of the sentencing court.
  4. 5.65 The Commission received submissions arguing that the breadth of the offences currently resulting in registration is unwarranted,59 and calling for some to be removed.60 The Centre Against Sexual Assault said that there should be more specific, considered categories of offences than the existing ones.61
  5. 5.66 The Commission believes that revising the character and categorisation of the registrable offences is an important means of strengthening the contribution that the scheme can make to child protection. The Commission has devised a refined list of offences that will assist in focusing the scheme on offenders who pose a risk of harming children.

Approach to revising the offences

  1. 5.67 Individual assessments by courts of the need for registration should be guided by the expectation that the more serious the offence, the more likely it is that a registration order will be made.
  2. 5.68 The Commission proposes that legislative guidance be given to courts in two ways. First, by the categorisation of the offences—the current division of child sexual offences into two categories is too blunt to prioritise risk.
  3. 5.69 The Working with Children Act contains a more useful categorisation of offences for protective purposes. The Secretary of the Department of Justice is empowered under that Act to consider applications for an assessment notice that will permit the applicant to engage in child-related work.62 The Act establishes three categories of applications, determined by the nature of the offence and the applicant’s offending history. Each category limits and guides the Secretary’s discretion to give the applicant an assessment notice.
  4. 5.70 Category 1 applications under the Working with Children Act are those made by the most serious sex offenders. The Secretary must refuse them unless directed to do otherwise by the Victorian Civil and Administrative Tribunal.63 Category 2 applications relate to less serious offences. There is a presumption that the Secretary will refuse Category 2 applications unless satisfied that granting the application would not pose an unjustifiable risk to the safety of children.64 Category 3 applications are the least serious. The presumption in this case is that the Secretary will grant the application unless satisfied in the particular circumstances that it is appropriate not to do so.65
  5. 5.71 The Commission has drawn on the model employed by the Working with Children Act when devising recommendations for changes to the registrable offences in the Sex Offenders Registration Act.
  6. 5.72 The second way in which the Commission recommends that the courts should be guided when making individual assessments of the need for registration is by the tests that should be applied for each category of offence. These are discussed later in the chapter.

Registrable offences under the refined scheme

Registrable offences against children

Rationalisation of the categories of offences
  1. 5.73 In place of the existing two classes of child sexual offences set out at schedules 1 and 2 of the Sex Offenders Registration Act, the Commission recommends re-ordering them into three categories according to the type of offending. The categories seek to reflect, in very broad terms, the nature of the harm that could result from re-offending.
  2. 5.74 The Commission’s proposals involve some changes to the current distribution of offences. Schedule 1 of the Sex Offenders Registration Act sets out all of the offences involving sexual penetration of children. This list includes offences that can be committed against both children and adults.
  3. 5.75 Some offences appear to have been unnecessarily included in Schedule 1. In practice, some offences are not used when the complainant is a child because there is a more suitable alternative charge that is easier to prove, or carries a higher penalty, or both.
  4. 5.76 An example is the offence of sexual penetration of a person with a cognitive impairment by providers of special programs.66 This offence could be charged if the complainant were under 16 years of age. However, the accused could also be charged with sexual penetration of a child under the age of 16.67 The latter offence carries a maximum penalty of 15 years imprisonment and does not require the prosecution to prove the additional elements of cognitive impairment and provider of special programs. The former offence carries only 10 years maximum imprisonment and is more difficult to prove. The offence of sexual penetration of a person with a cognitive impairment by a provider of medical or therapeutic services68 should be excluded for similar reasons.
Revised categorisation
  1. 5.77 The Commission proposes that the registrable offences should be organised as follows for the purposes of determining which test the court should apply when assessing whether an offender should be included on the Sex Offenders Register:

Category 1 offences

  • All penetrative offences involving or possibly involving a child victim (rape, sexual penetration, incest, sexual intercourse with a child outside Australia).
  • Persistent sexual abuse of a child (which may or may not involve penetration, but usually does). Includes both state and Commonwealth offences.
  • Engaging in sexual activity with a child using a carriage service (which may or may not involve penetration).
  • Procuring a child to take part in an act of sexual penetration or indecent act.

Category 2 offences

  • All of the sexual offences involving a child victim, other than those offences that fall within Category 1, where the offender actually participates in the sexual act, either in person or by using a carriage service.
  • Production of child pornography, as this may involve contact offences against a child.

Category 3 offences

  • All sexual offences involving a child victim that do not fall within categories 1 or 2.
  • The very serious offences of facilitating sexual offences against children committed by third parties, but only where they do not involve the participation of the offender in the sexual act either physically or by the use of a carriage service.
  • Possession of child pornography.
  1. 5.78 The proposed categories, and the offences within each, are listed in a table at Appendix D.
  2. 5.79 Judges and magistrates should be directed to apply different tests when deciding whether a person found guilty of an offence in any of the three categories should be included in the Sex Offenders Register.69 The proposed tests, discussed later in this chapter, differ according to the category of the offence and the consequences of re-offending.
  3. 5.80 The practical outcome of this revised categorisation of child sexual offences will be that most adults who commit penetrative sexual offences against children will be registered, and all other child sexual offenders will be registered if the court finds that this step will serve a useful protective purpose.

Recommendations

5. The Class 1 and Class 2 offences currently listed in schedules 1 and 2 of the Sex Offenders Registration Act 2004 (Vic) should be replaced with the offences that are set out in Appendix D of this report and which have been sorted into three categories: 1, 2 and 3.

6. A person would be eligible for inclusion in the Sex Offenders Register by court order following a finding of guilt for an offence in Category 1, 2 or 3 as set out in Appendix D of this report.

 

 

Registrable offences against adults

  1. 5.81 The Commission believes that it is no longer useful for people who are found guilty of the adult sexual offences currently listed as Class 3 and Class 4 offences to be eligible for inclusion in the Sex Offenders Register.
  2. 5.82 Class 3 and Class 4 registrable offences are those committed against adults by a ‘serious sexual offender’. A serious sexual offender is a person who has been sentenced at any time for two or more registrable offences (of any class), whether in the one trial or hearing, in different trials or hearings, or in separate trials of different charges in the one indictment.70
  3. 5.83 Very few people, approximately 3 per cent of all registered sex offenders in Victoria, have been placed on the Register for committing sexual offences against adults.71 On average, 20 adult sex offenders have been registered each year since the inception of the scheme seven years ago. It is likely that they include the most serious sex offenders against adults, many of whom might still be serving custodial or supervised sentences, in which case their reporting obligations will not have commenced.
  4. 5.84 Serious sex offenders who pose a risk of offending against adults or children can now be dealt with under the Serious Sex Offenders (Detention and Supervision) Act. The Act permits the Secretary of the Department of Justice to apply for a post-release supervision order for a period of up to 15 years72 and the Director of Public Prosecutions to apply for a detention order for a period of up to three years.73
  5. 5.85 Towards the end of their prison sentence, every sex offender is assessed by the Department of Justice to consider the risk of re-offending. The offender is given a preliminary screening test and, if it indicates a moderate risk or higher, the Department will commission a full clinical assessment. The Serious Sex Offender Review Board considers these assessments, together with other information about the offender.74 After considering these assessments, the Secretary decides whether to apply for a supervision order or to refer the matter to the Director of Public Prosecutions to apply for a detention order.75
  6. 5.86 The Commission understands that the Secretary of the Department of Justice makes approximately 40 applications for serious sex offender supervision orders per year.
  7. 5.87 The Commission believes that the serious sex offenders regime is more suited to managing adult offenders who sexually offend against adults and notes that most people on supervision orders are also registered sex offenders. There were 75 people on supervision orders as at 5 December 2011, most of whom were also registered sex offenders.76
  8. 5.88 While serious sex offenders under the age of 18 who offend against adults may be registered under the Sex Offenders Registration Act, supervision and detention orders can only be made in respect of offenders who are aged 18 or older.77 Nevertheless, the Commission believes that the Children’s Court has a sufficient array of options in its Family and Criminal Divisions, together with the specialist Therapeutic Treatment Board, to manage young people who offend against adults more effectively than by including them in the Sex Offenders Register.
  9. 5.89 There are no national cooperation implications in excluding adult sex offenders from eligibility for inclusion in the Register. Apart from Victoria, adult sex offenders are currently registrable offenders only in Western Australia,78 Tasmania and the Australian Capital Territory.79 Under existing provisions of the Sex Offenders Registration Act, any registered sex offender from another jurisdiction who moves to Victoria must continue to report to police for the period imposed by that jurisdiction.80 The Commission proposes that these provisions should continue to apply to interstate adult sex offenders. Their continuation should discourage people from moving to Victoria to avoid reporting obligations imposed in another Australian jurisdiction.
  10. 5.90 As discussed in Chapter 2, the purpose of the sex offenders registration scheme has evolved so that it is now primarily concerned with the protection of children. The capacity of the scheme to fulfil this purpose is diminished where resources are diverted to monitoring adult sex offenders. Furthermore, the scheme has not been designed to monitor the activities of adult sex offenders, particularly because of its strong emphasis on gathering information about unsupervised contact with children.
  11. 5.91 The Commission believes that continuing to register adult sex offenders is no longer necessary because the Serious Sex Offenders (Detention and Supervision) Act81 provides a more suitable protective legislative response to the risk of harm these offenders pose to the community.

Recommendation

7. It should no longer be possible for a court to order that a person found guilty of a sexual offence against an adult be included in the Sex Offenders Register. Schedules 3 and 4 of the Act should be repealed.

 

Bestiality

  1. 5.92 The Sex Offenders Registration Act currently provides for statutory inclusion of people who commit a sexual offence against an animal.82 The Commission does not consider that this offence should be a registrable offence under a scheme that seeks to protect children from harm.
  2. 5.93 However, an offence involving a child being forced to engage in an act of bestiality also leads to automatic inclusion in the Register83 and the Commission proposes retaining it as a registrable offence under the refined scheme.

Proposed system of structured individual assessment

  1. 5.94 The Commission has recommended replacing the existing statutory inclusion mechanism with court-ordered registration as a means of strengthening the sex offenders registration scheme by sharpening its focus. The Commission proposes that the courts should be given clear legislative guidance when making individual assessments of the need for registration.
  2. 5.95 The three new categories are grouped according to the seriousness of the offence. Courts should be required to apply a different test for each category. The policy underpinning these tests is clear: the more serious the offence, the higher the expectation that the court will make a registration order.
  3. 5.96 The proposed changes seek to ensure that the court assesses whether the individual offender poses a risk of harm to children. By directing courts to consider whether registration will serve a useful protective purpose, the new system should avoid the over-inclusiveness of the current statutory inclusion scheme, which has led to unnecessary diversion of police and child protection resources from dealing with people who pose some risk of re-offending and has produced unfair outcomes for some people.

Category 1 offences

  1. 5.97 The offences contained in Category 1 are those which involve, or may involve, the sexual penetration of a child by the offender. These are the offences for which the offender should be registered for a reasonable time, in all but exceptional circumstances.
  2. 5.98 The fact that the offender has committed an offence of this nature is a sufficient basis in most cases to take the protective measure of imposing reporting obligations, because the consequences of any re-offending are profound.
  3. 5.99 For this reason, the Commission considers that people who commit these offences should continue to be subject to mandatory registration, other than in very limited circumstances.
  4. 5.100 In view of widespread concerns about the unfair impact that statutory inclusion under the current scheme can have on a young person who is involved in an ongoing, ‘consensual’ sexual relationship with a person who has not yet reached the age of consent, it should be possible for courts to make individual assessments about the need for inclusion in these cases.84
  5. 5.101 The Commission considered the desirability of stipulating an upper limit to the age of a person convicted of a Category 1 offence who could seek the benefit of this exception. Because there are so many different circumstances that fall within offending behaviour of this nature, the Commission concluded that it was preferable to allow the judge or magistrate in a particular case to determine whether the age difference between the people involved was ‘significant’. However, it is important that this exception not be available in those cases where the complainant is under the age of 14 years.
  6. 5.102 As discussed later in this chapter, the Commission recommends that offenders who are unable to meet the requirements of a registration order because of a cognitive or physical impairment, or who committed an isolated offence many years ago, may also seek exemption from registration. However, it is highly likely that exemptions on these grounds would be extremely rare for offenders who have committed a Category 1 offence.

Recommendation

8. A court should be required to make a registration order in respect of a person found guilty of a Category 1 offence unless that person satisfies the court on the balance of probabilities that:

  1. (a) the age difference between the person and the complainant is not significant and the complainant was at least 14 years old at the time of the offence, and
  2. (b) the conduct would not have been a sexual offence but for the ages of the persons involved, and
  3. (c) no useful protective purpose is served by making a registration order.

 

Category 2 offences

  1. 5.103 Although Category 2 offences do not involve sexual penetration of children, many offenders who commit these crimes should be monitored for a reasonable time because they might pose an ongoing risk to children.
  2. 5.104 The Commission believes that there should be a presumption in favour of a person found guilty of a Category 2 offence being included in the Register. It should be possible for people found guilty of Category 2 offences to avoid inclusion if they can satisfy the court on the balance of probabilities that making an order would serve no useful protective purpose.
  3. 5.105 To ensure that courts consider appropriate expert evidence before making decisions about Category 2 offenders, they should consider a risk assessment report from a suitably qualified psychiatrist or psychologist unless there are exceptional circumstances that justify making an order without a report.

Recommendation

9. A court should be required to make a registration order in respect of a person found guilty of a Category 2 offence unless that person satisfies the court on the balance of probabilities that making an order would serve no useful protective purpose.

In considering whether to make an order, the court should be required to consider a risk assessment report from a psychiatrist or psychologist with expertise in assessing an offender’s risk of committing further sexual offences against children unless there are exceptional circumstances that cause a report to be unavailable or unnecessary.

 

Category 3 offences

  1. 5.106 Category 3 offences are non-contact offences where the principal offender does not actually participate in the sexual activity. They include pornography and sex work offences that are often committed for commercial purposes.
  2. 5.107 While these offences are serious and merit appropriate penalties, the offenders do not actually engage in sexual contact with the victim and might not pose a risk of committing contact offences.85 In view of the need to ensure that the registration scheme uses police and child protection resources effectively, the Commission believes that a registration order should only be made in these cases where the court considers that it is necessary to protect children from the risk of sexual abuse.
  3. 5.108 Some of the offences in Category 3, such as possessing child pornography, can occur in very different circumstances. This offence applies to young people who take photographs of naked, underage, partners with their permission, and to older people who collect graphic photographs of very young children being sexually penetrated. Registering the former offenders might be of little benefit, while registering the latter might assist in protecting children from the risk of sexual abuse.
  4. 5.109 The Commission believes that the prosecution should bear the burden of satisfying a court on the balance of probabilities that it is necessary to make a registration order for a person found guilty of a Category 3 offence. As with Category 2 offences, courts should consider a risk assessment report from a suitably qualified psychiatrist or psychologist unless there are exceptional circumstances that justify making an order without a report.

Recommendation

10. A court should be required to make a registration order for a person found guilty of a Category 3 offence if it is satisfied on the balance of probabilities that it is necessary to do so to protect children from the risk of harm from sexual abuse.

The prosecution should bear the burden of proving that a registration order should be made for a person found guilty of a Category 3 offence.

In considering whether to make an order, the court should be required to consider a risk assessment report from a psychiatrist or psychologist with expertise in assessing an offender’s risk of committing further sexual offences against children unless there are exceptional circumstances that cause a report to be unavailable or unnecessary.

 

Multiple offences

Multiple offences arising from the same facts and circumstances

  1. 5.110 Sometimes a person will be found guilty of a number of child sexual offences that fall within more than one category. In these cases, the Commission believes that the test applying to the highest category offence should apply to the person.86
  2. 5.111 The test for the highest category offence is most likely to lead to a registration order being made. If this test is not met, the court should not usually be required to consider the tests for the other categories of offences. For example, if a court decides not to register an offender pursuant to a Category 1 test because he was an 18-year-old male in an otherwise consensual sexual relationship with a 15-year-old female, it would be pointless for the court to apply the test for any Category 2 offences arising out of the same facts and circumstances.

Recommendation

11. The Sex Offenders Registration Act 2004 (Vic) should provide that, if an adult offender is found guilty of offences in more than one category, including any offences committed as a child, the test when determining whether to make a registration order should be that of the highest category.

 

Multiple offences arising from different facts and circumstances

  1. 5.112 There may be other occasions, however, where an offender has been found guilty of numerous offences and, while the test for the highest category offence is not met, it would be appropriate for a court to have the power to order registration after considering the test that applies to the other offences. This could occur where different types of offending involving different complainants have been dealt with at the same time.
  2. 5.113 For example, a court may decline to make a Category 1 registration order for an 18-year-old who has been found guilty of sexual penetration of a 15-year-old in circumstances of a supportive, ongoing and otherwise ‘consensual’ relationship. However, that same person may also have been found guilty of the Category 3 offence of possessing pornography involving child sexual abuse. In these circumstances, the court should be permitted to make a registration order under the Category 3 test if it is satisfied that it is appropriate to do so.

Recommendation

12. If an offender who has been found guilty of offences in more than one category does not meet the test of the most serious applicable category, the court should be permitted to consider the test for the next category if different facts and circumstances arise in relation to that offending.

Different facts and circumstances may include:

  1. (a) a different complainant
  2. (b) offending that is not incidental to the first category of offending.

 

Offences committed by children and young people

  1. 5.114 The Children’s Court has a discretionary power to order that any child or young person found guilty of any offence be included in the Sex Offenders Register.87 As at 1 December 2011, there were 43 people on the Register who had been included by a court order made when they under the age of 18.88
  2. 5.115 The intrusive nature of registration orders is far more pronounced for young people than it is for adults because they ordinarily have contact with other young people as part of their daily lives, such as when going to school, playing sport, living with their siblings, and having young visitors in the family home. A registered sex offender who is a young person must report all of these contacts. In addition, young people tend to be active users of social media, mobile phones and other means of electronic communication that must also be reported when it involves regular unsupervised contact with a child.89
  3. 5.116 As noted earlier in this chapter, the Centre Against Centre Assault and The Gatehouse, Royal Children’s Hospital, have argued that children should never be registered.90
  4. 5.117 The Commission believes that children and young people should be included in the Register only in exceptional circumstances, because there are other mechanisms that can be used to protect children from the risk of sexual abuse and because of the impact of registration on a young person.

Proceedings in the Children’s Court

  1. 5.118 Both the Criminal and Family Divisions of the Children’s Court have access to a variety of mechanisms for managing young sex offenders.
  2. 5.119 The Children, Youth and Families Act 2005 (Vic) establishes a sentencing scheme specifically for use by the Criminal Division of the Children’s Court when dealing with offenders aged 10 to 18 (or 19 provided that their matter was before the court prior to their 19th birthday).91
  3. 5.120 Upon finding a child or young person guilty of an offence, the Criminal Division may:
  • dismiss the charge with or without an accountable undertaking, place the child on a good behaviour bond or impose a fine92
  • impose supervisory orders, including probation, a youth supervision order, or a youth attendance order93
  • sentence the child or young person to a period of detention in a youth residential centre or youth justice centre.94
  1. 5.121 The Family Division may make a therapeutic treatment order, which is specifically targeted towards children and young people exhibiting sexually abusive behaviour. The order may be made in respect of a child who is over the age of 10 years and under the age of 15 years, if the Court is satisfied that:
  • the child has exhibited sexually abusive behaviours, and
  • the order is necessary to ensure the child’s access to, or attendance at, an appropriate therapeutic treatment program.95
  1. 5.122 The order remains in force for a period of up to 12 months and must require the child to participate in an appropriate therapeutic treatment program.96 It has the practical effect of removing a charge against the person from the Criminal Division and treating the behaviour therapeutically rather than punitively.
  2. 5.123 The Family Division also has a wide range of protective dispositions for use in managing young people involved in intra-familial sexual offending.
  3. 5.124 The Commission considers that, because of the many protective options open to the Children’s Court, young people found guilty of child sexual offences should only be included in the Sex Offenders Register where the Court is satisfied that it would serve a useful protective purpose and all other reasonable protective responses have been exhausted.

Recommendation

13. The Children’s Court should not make a registration order in respect of a person who is sentenced for a Category 1, 2 or 3 offence that they committed and were found guilty of as a child, unless it is satisfied that making an order would serve a useful protective purpose.

In considering whether to make a registration order, the Children’s Court should be required to:

(1) consider a risk assessment report from a forensic psychiatrist or psychologist, and

(2) take into account:

  1. (a) the nature and circumstances of the offence(s)
  2. (b) any prior findings of guilt in the Criminal Division of the Children’s Court or orders made by the Family Division of the Children’s Court in relation to the person
  3. (c) the capacity of the person to understand and meet the requirements of a registration order
  4. (d) whether the person is currently subject to any other orders that provide supervision or guidance to the person, and any orders of the Family Division of the Children’s Court
  5. (e) the availability of supports to the person in the community
  6. (f) whether the person can be placed on another order or program which could minimise the risk of committing a Category 1, 2 or 3 offence
  7. (g) the desirability of subjecting the young person to the least invasive regime of court orders necessary, and
  8. (h) section 362(1) of the Children, Youth and Families Act 2005 (Vic), so far as it is relevant.

 

Proceedings in other courts

  1. 5.125 If a person who was under the age of 18 committed a registrable offence, but the matter did not come before the court until after their 19th birthday, the Children’s Court does not have jurisdiction to hear the matter. The alternative sentencing options of the Children’s Court are not available in these circumstances. Therefore, the Commission considers the court should apply the tests for adult offenders when deciding whether to make a registration order.

Recommendation

14. The Sex Offenders Registration Act 2004 (Vic) should provide that, if a person is found guilty as an adult of a Category 1, 2 or 3 offence committed as a child, the court should deal with that person as an adult when determining whether to make a registration order.

 

Exemption from inclusion in the Register

  1. 5.126 There may be some limited situations where a sex offender registration order would not be appropriate because of the inability of the offender to comply with the reporting obligations or because of the very unusual nature of the offending.

Physical or cognitive impairment

  1. 5.127 From time to time, an offender will not be capable of meeting the conditions of registration due to a permanent physical or cognitive disability. The offender may have an intellectual disability, acquired brain injury, mental illness or physical injury. The Commission understands that a small number of current registered sex offenders are unable to comply with their reporting requirements because they have Alzheimer’s disease.
  2. 5.128 A court should have the power to decline to make a registration order in any case if it is satisfied that the offender will not be able to meet the reporting requirements for the duration of any possible order, because the offender would be physically unable to report or does not have the cognitive ability to understand the reporting obligations.

Old isolated offences

  1. 5.129 Sometimes child sex offenders are prosecuted many years after the offence occurred. It is not uncommon for people to be prosecuted for offending that occurred 20 or 30 years earlier. While the Commission believes that it would be contrary to community expectations, and to the purpose of the registration scheme, for anyone to be exempted from registration solely because of the age of the offence, there are circumstances in which no useful protective purpose would be served by making a registration order for a person found guilty of an offence committed many years ago.
  2. 5.130 A discretionary power not to include an offender should be available to the court where an offence occurred a long time ago, it was out of character, and the person’s life history discloses that they do not pose a risk of committing further sexual offences against children.

Recommendation

15. A court should be permitted to decline to make a registration order in respect of any person found guilty of any offence at any time if that person satisfies the court on the balance of probabilities that:

(1) the person would be unable to comply with the reporting obligations due to physical or cognitive impairment, or

(2) the offence occurred a long time ago, and

  1. (a) it appears to have been an isolated event, and
  2. (b) no useful protective purpose is served by making a registration order.

 

Appeals

  1. 5.131 As a general principle, it is possible to appeal against any court orders in criminal proceedings that result in adverse consequences for a person.
  2. 5.132 At present, it is not possible to appeal against statutory inclusion in the Sex Offenders Register because no court order is involved. However, registration orders currently made by the sentencing court under section 11 of the Sex Offenders Registration Act97 are subject to appeal. Appeals against section 11 orders follow the same path as an appeal against sentence. This outcome is achieved by deeming registration orders to be sentencing orders for the purposes of appeals.98
  3. 5.133 The Commission believes that registration orders made by courts under the refined and strengthened scheme described in this chapter should be subject to appeal in the same way as orders currently made under section 11.
  4. 5.134 The Commission sees no reason to depart from the established legal principle of a right of appeal in criminal proceedings. Even though a registration order is not a punishment that can be taken into account at the time of sentencing,99 it is an order that adversely affects an offender who must comply with numerous obligations after having completed a sentence for a crime.

Recommendation

16. The Sex Offenders Registration Act 2004 (Vic) should state that all registration orders are to be treated as sentencing orders for the purposes of appeal rights only and may be appealed pursuant to the usual sentencing appeal procedures.

 

 

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