6 Refining the reporting obligations

Introduction

  1. 6.1 In Chapter 5, the Commission recommended strengthening the sex offenders registration scheme by permitting structured individual assessment of offenders for inclusion on the Register. This chapter contains the Commission’s proposals for strengthening the scheme by refining the reporting obligations so that some offenders have reporting obligations specifically designed to meet their particular circumstances and all offenders are required to report for periods which are proportionate to their risk of re-offending.
  2. 6.2 All registered sex offenders currently have the same reporting obligations regardless of their risk of re-offending and of their need for assistance to avoid offending behaviour. It should be possible to tailor reporting conditions to support an individual registrant to function successfully in the community and to better manage the risk of harm to children when there are heightened concerns about the likely behaviour of a particular offender.
  3. 6.3 All adult registered sex offenders are currently obliged to report for periods ranging from eight years to life.1 There is a need to reconsider the policy that underpins the blanket imposition of these reporting periods so that assessments of ongoing risk can be made at reasonable intervals and the resources devoted to the Sex Offenders Register can be directed to those people who pose some risk of re-offending. When there are reasonable concerns about re-offending, extension of sex offender registration should be available as a preventative response.2

Reporting conditions

Reportable information under the current scheme

  1. 6.4 There is a detailed discussion of reportable information under the current scheme in Chapter 3. Information that registered sex offenders are required to report includes: name(s) by which they are known, date of birth, addresses, email and internet use details, names of children with whom the offender has had contact, employment and club membership information, tattoos, and details of any motor vehicles owned.3
  2. 6.5 They are required to make an initial report, an annual report and a report whenever any of their details change.4

Issues with reporting conditions

  1. 6.6 The current reporting conditions are mandatory and generic. All registered offenders are required to report the same information, within the same periods. There is no capacity for individual assessment of the needs of the community or the offender. There is no opportunity to include any components that may assist an offender to comply with their order, or to reduce the likelihood of re-offending. There is no power to include additional preventative measures that may assist child protection authorities to safeguard particular children from harm or permit the police to monitor a particular offender more closely than others.
  2. 6.7 The Commission agrees with the suggestion by the Australian Community Support Organisation that:

In addition to the minimum set of reporting obligations, ACSO proposes that the court be provided with discretionary power to impose a further set of reporting obligations that are offence or offender specific.5

Individually tailored conditions

  1. 6.8 The Commission believes that registered sex offenders should continue to be subject to the current standard reporting requirements, though changes to the obligations and procedures for reporting contact with children are recommended in Chapter 7. However, the court should also have some capacity to tailor the conditions of the registration order towards the management of the individual offender.

More frequent reporting

  1. 6.9 Registered sex offenders must report to the police annually, when there are changes to their personal details and when they have unsupervised contact with children. There is no capacity to require an offender to report more frequently, such as when first released from prison, or when on bail after having been charged with a new offence.
  2. 6.10 Courts should be permitted to order that those offenders who are of particular concern should be more closely monitored than annually and whenever personal details or contact with children change. Individual judges and magistrates are best placed to make these decisions when directing that a particular offender be included in the Sex Offenders Register or when deciding to renew a registration order.

Better collaboration between the police and the Department of Human Services

  1. 6.11 In his report on the management of registered sex offenders, the Ombudsman recommended that the Department of Human Services ‘ensure that it has the capacity to identify, analyse and promptly respond to reports received from the registry’.6
  2. 6.12 In Chapters 7 and 9, the Commission makes recommendations to enhance the timely flow of useful information from the Register to the Department of Human Services to assist it in investigating protective concerns about a registered sex offender having contact with a particular child or children. These recommendations include clearly defining the type of ‘contact’ with a child that registered sex offenders are required to report to police,7 and amending the process by which information about registered sex offenders’ contact with children is collected by Victoria Police and shared with the Department of Human Services.8
  3. 6.13 In addition, the Commission believes that in some cases it may be of assistance to the Department of Human Services to be present when a registered sex offender is reporting information about their contact with a child or children to the police. Being present when a child contact report is being made would enable the Department to make its own preliminary assessment of the risk an offender poses to particular children and to determine the most effective means of responding in order to safeguard those children.
  4. 6.14 When making a sex offender registration order, a court should have the power to authorise the presence of a delegate of the Secretary of the Department of Human Services when a registered offender is making a report to the police about contact with children. It is highly likely that the court would only authorise the presence of a Department of Human Services child protection worker in particularly complex or high-risk cases. Examples could be offenders who have repeatedly befriended single mothers with children, or those who have engaged in grooming behaviour before abusing children.
  5. 6.15 The Commission does not believe that a court should have the power to direct the attendance of a child protection worker because of the difficulty in assessing resource constraints. Once a court has authorised the presence of a delegate of the Secretary of the Department of Human Services, the Secretary should have a discretionary power to decide whether an officer of the Department attends when a registered sex offender makes a child contact report to the police.

Supporting registered offenders with a disability

  1. 6.16 The Commission has been told that many registrants, especially those with a disability, struggle to understand or remember their reporting obligations. Victoria Legal Aid submitted:

A number of people who are subject to the obligations of the Registration Act have an intellectual disability or experience periods of mental illness. These circumstances may have contributed to their offending. Ironically, those conditions also make it harder to understand and comply with the conditions of the Registration Act.9

  1. 6.17 For most offenders at present, sex offender registration is an automatic administrative consequence of being sentenced for particular sexual offences involving children. Many of these people serve lengthy terms of imprisonment before their reporting obligations commence on release from custody. Some offenders emerge from prison with a very poor understanding of their reporting obligations.
  2. 6.18 The Commission believes that support should be provided to registered sex offenders who have a cognitive disability or a mental illness when they make their reports. The existing independent third person scheme administered by the Public Advocate could be extended to cover these cases.
  3. 6.19 The Victoria Police Manual provides for the presence of an ‘independent third person’ when interviewing a person with ‘an impaired mental state or capacity who is fit to be interviewed’.10 The manual provides that this person ‘will either be a relative or close friend, or a trained volunteer from the Office of the Public Advocate’.11
  4. 6.20 The Public Advocate is the coordinator of the independent third person program. The Office of the Public Advocate trains and registers volunteers who are the only people who may act as an independent third person.12 Police are able to request an independent third person by using the Office of the Public Advocate 24-hour emergency service number.13

Supporting the rehabilitation of registered sex offenders

  1. 6.21 The Commission has heard from experts that many sex offenders would benefit from regular guidance and assistance with integrating into the community without re-offending. The Australian Community Support Organisation submitted that:

In light of the evidence, ACSO proposes that until such time as the Registration Act requires sex offenders to engage in targeted interventions and programs, it is unlikely that the Act will fulfil its purpose of reducing the likelihood of re-offending.14

  1. 6.22 Dr Astrid Birgden, consultant forensic psychologist, submitted:

To improve community protection, sex offenders need to be engaged in behaviour change through respectful and proactive case management that manages their risk and meets their needs.15

  1. 6.23 Dr Bill Glaser, consultant psychiatrist and clinical consultant to the Commission, strongly supports regular therapeutic maintenance of post-sentence sex offenders.
  2. 6.24 The Victorian Parliament is clearly entitled to enact laws that seek to prevent child sexual abuse. Two of the most important measures of the success of those laws are their effectiveness and their fairness.
  3. 6.25 The Commission believes that the Sex Offenders Registration Act 2004 (Vic) is more likely to be effective in achieving its purpose of protecting children against sexual abuse from people who have been found guilty of committing crimes of this nature if some offenders who are particularly vulnerable to relapse are provided with access to rehabilitation programs that provide behavioural guidance and assist with integration into the community.
  4. 6.26 It is also strongly arguable, as a matter of fairness, that there should be an element of mutual obligation when a community imposes a highly intrusive preventative mechanism, such as a sex offender registration scheme, on people who have completed the sentence imposed on them for their offending behaviour. While it is open to argument that the intrusive nature of the scheme is justified by the need to protect children from sexual abuse, that scheme ought to contain constructive elements that assist registered sex offenders to avoid re-offending and to function effectively in the community.
  5. 6.27 There are a number of counselling programs available to sex offenders both within and outside of prison:
  • Corrections Victoria provides intensive treatment programs for people serving sentences in custody, in the community through Community Corrections, at Corella Place16 and following release from prison (either on parole or on a supervision order17), including maintenance programs.18
  • The ‘maintaining change’ program is offered to offenders both pre- and post-release from prison, to help them maintain the gains from the treatment received in prison and implement relapse prevention plans.19 Group programs are delivered at Sex Offender Programs, Department of Justice, Carlton and at the Marngoneet Correctional Centre.
  • Support and awareness groups are established while the offender is in prison, with continued assistance following release. They provide a support network that the offender meets with to discuss how to deal with the risk of re-offending.20
  1. 6.28 Maintenance programs already exist under other legislative schemes. The Family Violence Protection Act 2008 (Vic) authorises a court to direct the respondent to a family violence order to attend counselling in certain circumstances.21 Under that Act, non-attendance is an offence.22
  2. 6.29 Offenders subject to orders pursuant to the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) are also frequently required to attend treatment or rehabilitation programs.23 Under that scheme, non-compliance is not criminalised.24
  3. 6.30 It could be argued that a court order to attend a counselling program for sex offenders interferes with the Victorian Charter right not to be subjected to medical treatment without consent.25 It is highly unlikely, however, that a counselling program for sex offenders would be characterised as ‘medical treatment’ for the purposes of the Charter.26 In addition, the rights protected by the Charter are not absolute, and section 7(2) sets out the manner in which limitations of those rights may be justified.27 Mandatory attendance at a counselling program for sex offenders appears to be a reasonable and proportionate response to the risk of harm to children.
  4. 6.31 The Commission believes that courts should have the power to direct offenders to attend rehabilitation and counselling programs as a condition of a sex offender’s registration order, though it should not be an offence to fail to attend or participate in a program. The success of programs of this nature depends, in part, on the offender’s willingness to participate. However, failure to attend or participate in a program should be a matter that a court can consider when deciding whether to extend a sex offender registration order.
  5. 6.32 The Commission suggests that the sex offenders registration scheme is likely to be more effective and fairer if courts are permitted to direct an offender to attend and participate in rehabilitation programs that provide behavioural guidance and assist with integration into the community.
  6. 6.33 The reporting obligations that currently exist under the Sex Offenders Registration Act should be retained, subject to the following recommended amendments.

Recommendations

17. The Sex Offenders Registration Act 2004 (Vic) should be amended to allow a court to impose any of the following conditions, in addition to the standard reporting obligations, when making a sex offender registration order for a person found guilty of a Category 1, 2 or 3 offence committed as an adult:

  1. (a) A requirement to report in person more frequently than as prescribed in the Act.
  2. (b) Where the court is satisfied that the person has a cognitive disability or mental illness, a requirement that the person must be accompanied by an independent third person, assigned by the Office of the Public Advocate, when making a report in person.
  3. (c) A requirement to attend and participate in rehabilitation programs that provide behavioural guidance and assist with integration into the community.
  4. (d) Authorising the presence of a delegate of the Secretary of the Department of Human Services in her capacity as a protective intervener when a person makes a child contact report to a delegate of the Chief Commissioner of Police.

18. The Office of the Public Advocate should be funded to expand the independent third person program so that it can better assist registered offenders who have a cognitive disability or mental illness in complying with their reporting obligations.

 

 

Reporting for children and young people

  1. 6.34 There are special reporting issues to consider when children and young people are placed on the register.
  2. 6.35 Children and young people necessarily spend much of their time with other children and young people. It would be onerous to expect them to report all of this contact, and unfair to impose conditions that would unduly interfere with their educational, sporting or training activities.28
  3. 6.36 It is desirable that registration orders do not unnecessarily interfere with a child’s or young person’s education, training, or housing. The Children’s Court should have discretion to tailor the reporting conditions of a child or young person in appropriate circumstances.

Recommendation

19. The Sex Offenders Registration Act 2004 (Vic) should be amended to enable the court to modify the reporting conditions and obligations imposed on offenders who are under the age of 18, as appropriate in the offender's circumstances.

 

Length of reporting period

  1. 6.37 The duration of a registered sex offender’s reporting obligations depends on the nature of the offences for which the offender was sentenced, and whether the offender was an adult or a child at the time of the offence.29
  2. 6.38 The Commission does not know why the current reporting periods of eight years, 15 years, and life were included in the Sex Offenders Registration Act.30 In New South Wales, registration periods were initially eight years, ten years, 12 years, 15 years, and life,31 but are now the same as Victoria.32 It appears that the initial New South Wales reporting periods were based on those used in the United States.33
  3. 6.39 The current reporting periods should be reconsidered because they are producing spiralling workloads for Victoria Police and the Department of Human Services, without any evidence of the benefits that such lengthy registration produces.
  4. 6.40 As at 1 December 2011, 711 of the 2830 active registrants34 faced lifetime reporting obligations. Another 1178 are required to report for 15 years, while 912 registrants are required to report for eight years.
  5. 6.41 The two very limited means of removing a person from the Register before the expiry of their reporting period have not been used. A person who faces lifetime registration can apply to the Supreme Court for removal after 15 years.35 It will not be possible for anyone to make an application of this nature until 1 October 2019. The Chief Commissioner’s power to apply to the Supreme Court at any time for the suspension of a registered offender’s reporting obligations36 has not been used.
  6. 6.42 It has been suggested to the Commission that five years is an appropriate time for the initial registration period. For example, Professor Paul Mullen said:

In my opinion, if someone is of an high enough risk for sexual reoffending to be placed on the register, they should be placed on an initial 5 year order with the continuance of the order decided on the basis of an assessment at the end of that period.37

  1. 6.43 The Royal Australian and New Zealand College of Psychiatrists suggested that:

The initial monitoring period for all registered sex offenders should be set at three years as this is recognised as the period where recidivism is most likely.38

  1. 6.44 Shorter reporting periods would create opportunities for regular review. Reviews would serve a useful purpose of ascertaining not only whether the order should continue, but also whether the conditions continue to be useful. It might be clear to the court at the time of review that a condition should be added or deleted. Liberty Victoria submitted:

Judicial officers should be empowered to set shorter registration periods than the three fixed periods under the Act of 8 years, 15 years, and life. This is because the limitation to the rights of those registered will only be proportionate if the period of registration is the minimum necessary in the circumstances. There may well be examples of offenders acting in ways completely out of character, where the uncontradicted expert evidence is that the person does not pose a risk to the community, or only requires a very limited period of supervision.39

  1. 6.45 The Commission recommends shorter reporting periods for the proposed three new categories of offenders. Category 1 and Category 2 offenders should be registered for five years, while Category 3 offenders should be registered for three years.
  2. 6.46 The expert opinion available to the Commission suggests that five years after release from prison is a reasonable period within which to monitor the activities of the most serious offenders and to decide whether an application should be made to extend that offender’s registration when the current order expires.
  3. 6.47 Under the Serious Sex Offenders (Detention and Supervision) Act, detention orders may be made for up to three years, and supervision orders may be made for up to 15 years.40 The Supreme Court must review detention orders every year; supervision orders must be reviewed by the court that made the order every three years.41 The Commission understands that the average duration of a supervision order is seven years.42 The shortest current order is one year in length, while the longest order extends for 15 years.
  4. 6.48 The Commission considers that, as with supervision and detention orders, review of registration orders should be conducted by the sentencing court—that is, the court that made the registration order.
  5. 6.49 It should be possible to extend the registration orders (and the associated reporting periods) for all three categories of offenders and there should be no limit to the number of times a particular offender’s registration order can be extended. As a matter of fairness, an application for extension should be made before the order expires. It should be possible to apply for an extension during a period of suspension of the order.
  6. 6.50 The reviewing court should consider whether further monitoring would be useful, or whether additional assistance such as ongoing participation in rehabilitation programs is desirable. A person’s registration should cease unless the court is satisfied, on the balance of probabilities, that extending the order is necessary to protect children from harm.
  7. 6.51 As the performance of the person on the order is a relevant factor in considering an extension, regular review will provide an incentive to the person to adhere with conditions such as rehabilitation programs, and to seek reintegration into the community.
  8. 6.52 Regular review of the need for continuing registration should enhance the allocation of police and Department of Human Services resources by enabling them to focus on those offenders who pose a real risk of harm.

Recommendations

20. A registration order in respect of a person found guilty of a Category 1 or Category 2 offence should be of five years duration. A registration order in respect of a person found guilty of a Category 3 offence should be of three years duration.

 

 

21. It should be possible for the Chief Commissioner of Police to apply to a court for an extension of a registration order. There should be no limit to the number of times that a registration order can be extended. The following procedures should apply when seeking an extension:

  1. (a) The Chief Commissioner should be permitted to apply to a court to extend the registration order for a further period of five or three years (as the case may be) at any time before the order expires.
  2. (b) The burden of proof in an extension application should rest with the Chief Commissioner.
  3. (c) The court should extend the order if it finds on the balance of probabilities that it is necessary to do so to protect children from the risk of harm.
  4. (d) In determining an extension application, the court should be required to consider a risk assessment report from a psychologist or psychiatrist with expertise in assessing an offender’s risk of committing further sexual offences against children.
  5. (e) If a court decides to extend the period of a registration order it should be able to include any of the conditions that could have been included in the original order.

 

Removal from the Register

  1. 6.53 It is currently unclear whether a person is removed from the Register when their reporting period ends. The Act says nothing about this matter and refers only to destruction of certain materials.43
  2. 6.54 The Commission believes that a person’s name and accompanying information should be removed from the Register once the reporting period has expired. This will both reduce the volume of data in the Register and provide consistency with other provisions in the Act concerning the offender’s privacy.44

Recommendation

22. The Sex Offenders Registration Act 2004 (Vic) should state that when a registration order expires, or is revoked or terminated by a court, the person who was subject to the order is no longer a registered sex offender.

 

 

Length of reporting period for corresponding offenders

  1. 6.55 When a registered sex offender who is required to comply with the reporting obligations under one Australian registration scheme moves to or visits another state or territory, they will be generally deemed to be a ‘corresponding registrable offender’.45 This designation means that they remain a registered offender when they move interstate and they must comply with that new state or territory’s reporting requirements.
  2. 6.56 The Commission believes that there should be some amendments to the ‘corresponding registrable offender’ provisions in the Sex Offenders Registration Act to ensure that interstate offenders do not flock to Victoria with the aim of securing a shorter registration period. Interstate registered sex offenders who come to Victoria after the commencement of the revised scheme should retain reporting obligations for the period that was set in the original state or territory.

Recommendation

23. Interstate registrants who move to Victoria should continue to be required to report for the period for which they would have been required to report in the jurisdiction in which they were placed on a sex offenders register, regardless of whether the offence for which they were registered is a registrable offence in Victoria and the duration of reporting requirements under Victorian law.

 

 

Suspension of reporting obligations

  1. 6.57 There are only a few circumstances in which reporting obligations under the Sex Offenders Registration Act may be suspended.46 Reporting obligations are suspended when a registered sex offender is:
  • in government custody, or
  • outside Victoria, or
  • subject to a witness protection order.47
  1. 6.58 The Sex Offenders Registration Act provides that any period for which a registered sex offender’s reporting obligations are suspended is added to the offender’s reporting period.48 That is, for the purposes of an offender’s reporting period, time stops when a registered offender’s reporting obligations are suspended and recommences once the suspension is lifted.
  2. 6.59 The Commission understands that the reporting obligations of some registered sex offenders are currently suspended for medical reasons, even though the Sex Offenders Registration Act does not specifically deal with these situations.

Grounds for suspension of reporting obligations

Government custody
  1. 6.60 No useful protective purpose is served by requiring a registered sex offender who is in custody to comply with any reporting obligations. The scheme is designed to monitor the activities of people living in the community and people in custody pose no threat to the safety of children. It is an unnecessary expense to require people in any form of custody to report to the police.
  2. 6.61 The current definition of ‘government custody’ in the Sex Offenders Registration Act49 does not cover all of those situations where a registered sex offender would be unable to report to the police and should have their reporting obligations suspended.
  3. 6.62 The definition of ‘government custody’ currently includes:
  • being in the legal custody of the Secretary of the Department of Justice when subject to an order of imprisonment50
  • being in the legal custody of the Secretary of the Department of Justice when subject to a detention order under the Serious Sex Offenders (Detention and Supervision) Act51
  • being in the legal custody of the Chief Commissioner of Police when subject to an order of imprisonment or other order requiring the person to be held in police custody52
  • being a young person who is in the legal custody of the Chief Commissioner of Police, having been remanded in custody by a court or bail justice under the Children, Youth and Families Act 2005 (Vic)53
  • being a young person who is detained in a youth justice centre or youth residential centre under the Children, Youth and Families Act54
  • being a forensic patient, forensic resident, security patient or involuntary patient in particular circumstances.55
  1. 6.63 It appears that the current definition of ‘government custody’ does not include:
  • remanded prisoners who are adults56
  • some people who are detained in approved mental health services or residential treatment facilities57
  • children or young people who are ordered by the Children’s Court to be held in secure welfare facilities.58
  1. 6.64 These types of custody should be included in the definition of ‘government custody’, as people living under these arrangements are not able to report to the police.
Supervision orders
  1. 6.65 People who are both registered sex offenders and subject to supervision orders under the Serious Sex Offenders (Supervision and Detention) Act59 must continue to report to their police compliance manager under the Sex Offenders Registration Act.60 The Commission understands that police visit Corella Place, where a number of those subject to supervision orders are required to live, to enable residents to make their reports.
  2. 6.66 The Commission believes that registered sex offenders who are subject to a supervision order under the Serious Sex Offender (Detention and Supervision) Act should have their reporting obligations suspended during the operation of that order. Supervision orders, which are discussed in Chapter 2, allow a court to require a serious sex offender to comply with an intensive supervisory regime that often involves electronic monitoring and a direction to reside at a specified place, as well as restraints on movement in the community and access to places where children congregate.
  3. 6.67 No useful protective purpose is served by requiring people whose compliance with their supervision order is comprehensively monitored by a specialist division of the Adult Parole Board to abide by a second set of reporting obligations.
Physical or cognitive impairment
  1. 6.68 Some registered sex offenders are unable to comply with their reporting obligations because of physical disability or impaired cognitive functioning. The Act does not contain any appropriate means of responding to registered offenders with profound illnesses, such as Alzheimer’s disease, which prevent them from complying with their reporting obligations. While the Chief Commissioner of Police can apply to the Supreme Court at any time for an order suspending an offender’s reporting obligations,61 this is an expensive way of dealing with this issue.
  2. 6.69 The Act provides a defence of reasonable excuse to the offence of failing to comply with reporting obligations, and the court may take into account:
  • the person’s age
  • whether the person has a disability that affects their ability to understand or comply with their reporting obligations
  • whether the person was able to understand the notification they received about reporting obligations, and
  • any other factor the court considers relevant.62
  1. 6.70 However, it is not a fair or effective response to issues of physical and cognitive impairment to require an offender to raise a statutory defence to a charge of failing to comply with an obligation they were unable to fulfil because of a disability.

Procedure for suspension of reporting obligations

  1. 6.71 This deficiency can be overcome by permitting the Chief Commissioner of Police to suspend reporting for up to 12 months if satisfied that a registered sex offender is unable to comply with the reporting obligations due to physical or cognitive impairment. This power would complement the Chief Commissioner’s existing power to apply to the Supreme Court for suspension of reporting obligations.63
  2. 6.72 It should be possible for the Chief Commissioner to establish a process for dealing with suspension applications fairly and expeditiously. The applicant should be required to submit medical reports that provide appropriate details of the physical or cognitive impairment that leads to an inability to comply with the reporting obligations. A senior officer could be given the task of determining on behalf of the Chief Commissioner whether the reporting obligations should be suspended.
  3. 6.73 Given the severe penalties for failure to comply with reporting obligations, a registered sex offender who unsuccessfully applies to the Chief Commissioner of Police for the suspension of reporting obligations due to physical or cognitive impairment should be permitted to seek a review of the Chief Commissioner’s decision in the court that made the initial registration order.

Recommendations

24. Reporting obligations should be suspended if the registered sex offender is subject to a supervision order (including an interim order) under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).

25. Reporting obligations should continue to be suspended if the registered sex offender is in government custody. The definition of ‘government custody’ in the Sex Offenders Registration Act 2004 (Vic) should be updated and expanded to include all forms of government custody.

 

 

26. The Chief Commissioner of Police should be permitted to suspend the reporting obligations of a registered sex offender for a period of up to 12 months if the Chief Commissioner is satisfied that the offender is no longer able to comply with those obligations due to physical or cognitive impairment.

27. A registered sex offender who unsuccessfully applies to the Chief Commissioner of Police for the suspension of reporting obligations due to physical or cognitive impairment should be permitted to seek a review of the Chief Commissioner’s decision in the court that made the registration order.

 

 

The effect of suspension on the duration of an order

  1. 6.74 An allied issue that arises when considering the suspension of reporting obligations is whether the suspension period counts as ‘time served’ for the purpose of calculating the total duration of the order, or whether time stops on suspension of the order and recommences when the reporting obligations are revived.
  2. 6.75 The current policy is that time stops on suspension of the order and the reporting period expands to include suspension time.64
  3. 6.76 The Commission believes that this policy should be reconsidered in light of the purpose of the sex offenders registration scheme, the proposed reporting periods for the revised three categories of offences and the cost of administering the scheme.
  4. 6.77 In Chapter 2 the Commission recommends that the Sex Offenders Registration Act be amended so that the purpose of the legislation is clear—to protect children against sexual abuse from people who have been found guilty of sexually abusing children.
  5. 6.78 The legislation is preventative, not punitive. This point is clearly made in the Sentencing Act, which directs courts not to consider any consequences that may arise from the operation of the Sex Offenders Registration Act when imposing a sentence on an offender.65 The preventative purpose must be borne in mind when considering the effect of suspension on the duration of an order.
  6. 6.79 Registered sex offenders who are in any form of government custody do not pose a risk of sexually abusing children. When they are released from custody, they must comply with their reporting obligations for the duration of their order. Moreover, under the revised scheme proposed by the Commission, the Chief Commissioner may apply to a court to extend any registration order.
  7. 6.80 Registered sex offenders who have satisfied the Chief Commissioner of Police that they are unable to comply with their reporting obligations because of physical or cognitive impairment are highly unlikely to pose a risk of sexually abusing children. Registered sex offenders who are subject to a supervision order are far more closely monitored under that order than under the Sex Offenders Registration Act. In both instances, the Chief Commissioner may apply to a court to extend any registration order before it expires.
  8. 6.81 The administrative cost of collecting, recording and calculating the effect on duration of all suspensions of reporting obligations is not justified when the purpose of the sex offenders registration scheme and the Chief Commissioner’s proposed power to apply to extend any order are considered.
  9. 6.82 The Commission believes that is simpler to allow time to run during the suspension of any order. This change would not undermine the protective purpose of the sex offender registration scheme and it would result in greater efficiency. If the offender is in custody throughout this period, is subject to a supervision order or is incapacitated, the Chief Commissioner could apply to a court for an extension of the registration order when the offender is about to be released from custody, their supervision order is about to expire or their health improves.
  10. 6.83 The Commission’s proposals are consistent with the manner in which the Serious Sex Offender (Detention and Supervision) Act deals with the effect of a custodial sentence on the duration of a supervision order made under that Act. The time spent in custody counts as time under the supervision order even though the conditions of that order do not apply when the offender is in prison.66 Recent amendments to the Serious Sex Offender (Detention and Supervision) Act extend the operation of this provision to interim supervision orders.67

Recommendation

28. Whenever a person’s reporting obligations are suspended because the person is:

  1. (a) in government custody, or
  2. (b) subject to a supervision order under the Serious Sex Offenders (Supervision and Detention) Act 2009 (Vic), or
  3. (c) no longer able to comply with their reporting obligations due to physical or cognitive impairment,

time on the registration order should continue to run during the period of suspension.

 

 

Police powers and breaches of reporting obligations

  1. 6.84 In his report on the management of registered sex offenders, the Ombudsman observed that the Sex Offenders Registration Act contains

no provision that permits Victoria Police to establish the veracity of information provided by registered sex offenders such as entering a home to establish whether a registered sex offender is living with children.68

  1. 6.85 The Commission’s terms of reference require consideration of ‘the powers of the Chief Commissioner to assess the veracity of information provided by registrants for the purposes of enforcing the … Act’ and of managing any risks that registrants pose ‘to children and the broader community’.69
  2. 6.86 Although the police have no special powers under the Sex Offenders Registration Act, general police powers of entry and search are available when the police are investigating possible breaches of the Sex Offenders Registration Act.
  3. 6.87 The Act creates two reporting offences—one deals with failing to comply with the reporting obligations70 without reasonable excuse and the other with knowingly providing a false or misleading report.71 The maximum penalty for the first of these offences is imprisonment for five years,72 while the second offence has a maximum penalty of two years imprisonment or 240 penalty units.73
  4. 6.88 These significant differences in the maximum penalty do not reflect the gravity of the offending. Failing to report, which could be inadvertent, carries a much greater maximum penalty than knowingly providing false or misleading information, which is far more likely to involve behaviour that is of real concern. The reason for the difference probably lies in the police powers that are available when an offence carries a maximum penalty of five years imprisonment.74
  5. 6.89 As failing to comply with the reporting obligations under the Sex Offenders Registration Act is a ‘serious indictable offence’ for the purposes of section 459A of the Crimes Act 1958 (Vic), the police have the power to enter and search any premises without a warrant when they have reasonable grounds for believing that a registered sex offender has committed this offence.
  6. 6.90 While the Commission is not proposing that this search and entry power should be modified or withdrawn, it is a very significant power for the police to use when dealing with registered sex offenders, especially because it could be triggered by a relatively minor failure to comply with a reporting obligation, such as not reporting the removal of a tattoo. It is not clear whether the Ombudsman considered this power when suggesting that the Commission be asked to consider police powers when dealing with registered sex offenders.
  7. 6.91 The same powers are not available to the police in relation to the offence of furnishing false and misleading information. The Commission believes that this inconsistency should be remedied by giving the police specific entry and search powers when dealing with all suspected breaches of the Sex Offenders Registration Act. This recommendation is an appropriate, measured response to the Ombudsman’s concerns about the powers of the police to deal with inaccurate reports from registered sex offenders.
  8. 6.92 The Commission proposes that the two offence provisions should be merged. The maximum penalty for breaching the reporting obligations should be proportionate to the degree of wrongdoing rather than set at an artificially high level in order to attract the operation of police powers that are otherwise not available when responding to possible offences that do not attract a penalty of five years imprisonment or more.
  9. 6.93 For the reasons given earlier in this chapter, the Commission does not believe that breach proceedings should be available when an offender fails to attend or participate in a counselling or rehabilitation program.

Recommendations

29. The offences of furnishing false or misleading information and failing to comply with reporting obligations should be combined into a single summary offence. Penalty: level 7 imprisonment (two years maximum) or a level 7 fine (240 penalty units maximum) or both.

30. If a member of the police force believes, on reasonable grounds, that a registered sex offender has:

  1. (a) failed to comply with their reporting obligations without a reasonable excuse, or
  2. (b) knowingly furnished false or misleading information in purported compliance with their reporting obligations,

the member of the police force should be permitted to enter and search any premises where they believe the registered sex offender to be.

 

 

Footnotes

Main menu

Back to top