What do I need to know?

What is aRoyal Commission?

Preparation

Understanding the Sex Offender Registration Act

Obligations

What is the Sex Offenders Register?

Reporting

d e f e n c e l a w y e r s

Written by Bill Doogue and Kristina Kothrakis

IndexIntroductionThe AuthorsPurposes of The ActWho is on the Sex Offenders Register?How Long is the Reporting Period?Reporting PeriodsCan I Ever Get Off the Register?

6 Registration Exemption Order

6 Suspension Order and Suspension for a Period Not Exceeding 5 Years

What Does Being on the Register Involve?Overseas Travel

10 A Case Study - Overseas Travel

Investigative Powers and ProceduresWhat if I Do Not Comply With the Reporting Obligations?

12 A Case Study - Failing to Report

Legal Support

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IntroductionWhen a person is charged with a sex offence such as rape, possession or production of child pornography or sex offences involving children the consequences upon a finding of guilt are immense.

As well as the likelihood of a prison sentence, longer term consequences include being placed on the Sex Offenders Register.

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Bill Doogue DirectorAccredited Criminal Law Specialist

“We’re not here to be bystanders, we’re here to win for our clients and unless you have that drive to succeed for your client, you can’t help them properly.”

Bill Doogue has over 25 years experience as a defence Lawyer and has been an Accredited Criminal Law Specialist for almost 20 years. He was awarded a Law Institute of Victoria Service Award in 2013.

Bill oversees most of the major criminal trials and has appeared for and advised current and former Liberal and Labour Politicians from both State and Federal parliaments, high ranking church officials and many high profile cases.

Bill has significant experience dealing with matters relating to the Sex Offender Register and has written a number of articles on the subject, which you can find on melbournecriminallawyersblog.com.

Kristina Kothrakis PartnerAccredited Criminal Law Specialist

“We listen to what our clients want to achieve, understand their objectives and work tirelessly to achieve the

best outcome. That, along with a strong case theory, well supported by evidence is absolutely fundamental to success.”

Kristina Kothrakis works closely with her clients to understand what their objectives are, and works tirelessly to try and achieve that end goal.

Kristina has great success in having charges withdrawn and with achieving non-conviction outcomes at Court.

Kristina’s expertise in deallng with clients on the Sex Offender Register is further enriched by a Bachelor of Science (Psychology),

a profound understanding of the Sex Offender Registration Act and an empathetic nature towards her clients.

The Authors

Purposes of the ActThe purpose of the Sex Offender Registration Act 2004 is to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time. This is done with the stated aim of reducing the likelihood that they will re-offend and to facilitate the investigation and prosecution of any future offences that they may commit. The Act also prevents registered sex offenders working in child related employment.The Act itself:

1. provides for the establishment of a Register of Sex Offenders; and2. requires certain offenders who are sentenced for registrable offences on or after 1 October

2004 to report specified personal details for inclusion in the Register (and extends this requirement to certain offenders sentenced for registrable offences before that date); and

3. enables the sentencing court to order juvenile offenders and offenders who commit certain sexual offences against adult victims to comply with the reporting obligations of the Act; and

4. requires those offenders to keep those details up to date, to report those details annually and to also report certain of their travel plans; and

5. imposes those reporting obligations for a period of between 4 years and life, depending on the number, severity and timing of the offences committed, and the age of the offender at the time an offence was committed; and

6. allows for the recognition of the period of reporting obligations imposed under laws of foreign jurisdictions; and

7. makes it an offence for registered sex offenders to work in child-related employment; and8. empowers the IBAC to monitor compliance.

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Who is on the Sex Offenders Register?There are different classes of sexual offending for which a finding of guilt can result in sex offender registration. The different classes distinguish between penetrative and non-penetrative offences and between whether or not the offence was committed against children or adults.Being convicted of a sexual offence involving a child results in mandatory inclusion on the register. The Court has no discretion not to place you on the sex offences register. When children are convicted of sex offences or adults are convicted of sexual offences committed against other adults then there can be a discretionary inclusion in the register pursuant to an order made under section 11.Section 11 provides that:

1. If a court finds a person guilty of an offence that is not a Class 1 or Class 2 offence (including an offence that is a Class 3 or Class 4 offence), it may order that the person comply with the reporting obligations of this Act.

...2. The court may only make an order under this section if, after taking into account any matter

that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.

The Court of Appeal has confirmed that this discretionary power to make a registration order under s 11(3) is only enlivened if the sentencing court is first satisfied beyond reasonable doubt that the offender poses a danger to the sexual safety of one or more persons or of the community.1 We regularly represent clients who face these issues. We can provide advice about necessary risk assessment measures and we can make submissions on your behalf to persuade the Court that you do not pose a danger to others.All registrable offenders are placed on the sex offenders register and required to comply with reporting obligations. A registrable offender is a person who has been sentenced for a registrable offence. According to section 7 of the Act a registrable offence is:

(a) a Class 1 offence; or (b) a Class 2 offence; or (c) an offence that results in the making of a sex offender registration order

The classification of offences between different classes is set out in the schedules to the Act. The Act can be found on the Austlii website. Broadly speaking:

• Class 1 offences involve sexual penetration of children • Class 2 offences cover non-penetrative offending involving children, • Class 3 is penetrative offending against adults • Class 4 is non penetrative offending involving adults.

1 DPP v Ross Cartwright [2015] VSCA 11 [19] and [20] (per Priest JA, with Weinberg and Beach JJA agreeing).

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Registration can be for 8 years, 15 years or life. If the person was a child when they committed the sexual offences then half of the period applies, 4 years or 7 and a half years. Life registration

is also treated as 7 and a half years.

In essence, the Sex Offender Register exists to allow the police to keep track of registered offenders. The length of time for which a person is obligated to report depends on the class of offence of which they have been found guilty.If a person has been sentenced to a term of imprisonment, the reporting obligations commence once they have been released.

How Long is the Reporting Period?

Reporting Periods

Reporting Period Findings of guilt by offence class and number

8 years: s34(1)(a) 1 Class 2 offence

15 years: s34(1)(b) 1 Class 1 offence 2 Class 2 offences

Life: s34(1)(c) 2 or more Class 1 offences

1 Class 1 offence & 1 Class 2 offence

3 or more class 2 offences

Periods apply if an offender has ever been found guilty of the offences and therefore accumulate over time.Two or more offences arising from the same incident are to be treated as a single offence. Offences arise from the same incident if they are committed within a single period of 24 hours against the same person.

Can I Ever Get Off the Register? A registrable offender may be able to apply for a registration exemption order (section 11A), a suspension order (section 39 and 39A) or suspension for a period not exceeding 5 years (section 45A).

Registration Exemption OrderA registrable offender may apply to a court for a registration exemption order if at any time during the commission of the offence they were 18 or 19 years of age, and at all times during the offence they were not more than 19 years of age.1 They cannot apply if the offending involved more than one victim. The court can only grant the exemption order if it is satisfied that the victim was of or over the age of 14 years at the time of the offending, and the offender poses low risk to the sexual safety of the community.2

A person must apply for an exemption order within 6 months after first receiving notice of their reporting obligations, or, if the offending occurred before March 2018, then within 2 years of first receiving notice (or before 1 March 2020, whichever comes later). If a registration exemption order is made, the person ceases to be a registrable offender.

Suspension Order and Suspension for a Period Not Exceeding 5 YearsA registrable offender required to report for the remainder of his or her life may, after 15 years of reporting, apply to the Supreme Court for suspension of his or her reporting obligations (section 39). The Supreme Court must not make this order unless satisfied that the offender poses a low risk, and it is in the public interest to suspend the person’s reporting obligations.3

The Chief Commissioner of Police also has the power to apply to a court to suspend an offender’s reporting obligations under section 39A. The Commissioner also has the power to suspend reporting obligations for up to 5 years under section 45A. Again, suspension cannot occur unless the offender is assessed as low risk.4

We provide advice and prepare legal submissions on behalf of clients who are seeking to apply for an exemption order or seeking to have their reporting requirements suspended. An exemption order can be life-changing as it allows an offender to be completely removed from the Register. Suspension also has many benefits, including freedom from onerous reporting obligations and the ability to freely travel overseas. A client is very unlikely to be able to successfully apply for suspension of reporting requirements if they have any convictions or findings of guilt for failing to meet reporting requirements. For this reason, it is very important to someone to defend failure to report charges, no matter how minor they may seem.

1 Section 11A(1) Sex Offenders Registration Act 2004.2 Section 11B(1) Sex Offenders Registration Act 2004.3 Section 40(2) Sex Offenders Registration Act 2004.4 Section

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What Does Being on the Register Involve?A registered sex offender must make an initial report of extensive personal details, attend an annual interview and advise the police whenever their personal details change. These reporting requirements are incredibly onerous. Remember, you are entitled to have a support person with you when reporting to Police. TIP: Overshare information. email them about everything rather than missing something. The Police are obliged to acknowledge receipt.If you get a gaol sentence, you must report to the Police within seven days of release.Your obligations are suspended under section 32 whilst you are in gaol, so the time begins on your release. The relevant personal details are set out in section 14 of the Act, that must be given on first report:14 Initial report by registrable offender of personal details

1. The details the registrable offender must report are—a. his or her name, together with any other name by which he or she is, or has previously been,

known;b. in respect of each name other than his or her current name, the period during which he or

she was known by that other name;c. his or her date of birth;d. the address of each of the premises at which

he or she generally resides or, if he or she does not generally reside at any particular premises, the name of each of the localities in which he or she can generally be found;da. his or her telephone number (if any);db. his or her email address (if any);dc. if the registrable offender has an Internet

service provider, the name and business

address of that Internet service provider;dd. any—

i. internet user names; orii. instant messaging user names; oriii. chat room user names; oriv. other user name or identity—

used or intended to be used by the

registrable offender through the Internet or

other electronic communication service;e. the name of each child with whom he or she has contact;

ea. in respect of each child with whom he or she has contact—i. the child’s age, residential address and telephone number; orii. if the child’s age, residential address or telephone number is not known to him or her -

the location where the contact takes place;f. if he or she is employed—

i. the nature of his or her employment; andii. the name of his or her employer (if any); andiii. the address of each of the premises at which he or she is generally employed or,

if he or she is not generally employed at any particular premises, the name of each

of the localities in which he or she is generally employed;g. details of his or her affiliation with any club or organisation that has child membership or

child participation in its activities;h. the make, model, colour and registration number of any motor vehicle owned by,

or generally driven by, him or her;

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i. details of any tattoos or permanent distinguishing marks that he or she has

(including details of any tattoo or mark that has been removed);j. whether he or she has ever been found guilty in any foreign jurisdiction of a registrable

offence or of an offence that required him or her to report to a corresponding registrar or been subject to a corresponding sex offender registration order and, if so, where that finding occurred or that order was made;

k. if he or she has been in government custody since he or she was sentenced or released from government custody (as the case may be) in respect of a registrable offence or corresponding registrable offence, details of when and where that government custody occurred;

l. if, at the time of making a report under this Division, he or she leaves, or intends to leave, Victoria to travel elsewhere in Australia on an average of at least once a month (irrespective of the length of any such absence)—i. in general terms, the reason for travelling; andii. in general terms, the frequency and destinations of the travel;

m. the passport number and country of issue of each passport held by the registrable offender.2. For the purposes of this section—

a. a registrable offender does not generally reside at any particular premises unless he or she resides at those premises for at least 7 days (whether consecutive or not) in any period of 12 months; and

d. a registrable offender is not generally employed at any particular premises unless he or she is employed at those premises for at least 14 days (whether consecutive or not) in any period of 12 months; and

e. a registrable offender does not generally drive a particular motor vehicle unless the person drives that vehicle on at least 14 days (whether consecutive or not) in any period of 12 months.

3. For the purposes of this section, a person is employed if he or she—a. carries out work under a contract of employment; orb. carries out work as a self-employed person or as a sub-contractor; orc. carries out work as a volunteer for an organisation; ord. undertakes practical training as part of an educational or vocational course; ore. carries out work as a minister of religion or in any other capacity for the purposes of a

religious organisation.4. For the purposes of this section, a person is an employer if the person—

a. arranges, in the course of business, for the registrable offender to be employed by another person; or

b. engages the registrable offender under contract to carry out work.It is important to note that under s 4A of the Act someone on the register has contact with a child when they:

a. reside with the child; or b. stay overnight at a place of residence where the child resides or is staying overnight; or c. care for, or supervise, the child; or d. provide the offender’s contact details to the child or receives the child’s contact details

from the child; or e. engage in any of the following with the child for the purpose of forming a personal

relationship with the child— i. any form of actual physical contact; ii. any form of oral communication

(whether face to face, by telephone or by use of the internet); iii. any form of written communication (whether electronic or otherwise).

So if you are charged with failing to report ‘contact with a child’ we recommend that you see a criminal defence lawyer for advice as to whether that charge is in fact made out.

A Case Study - Overseas TravelOur client submitted a Registered Offender Overseas Travel Application pursuant to s271A.1 of the Criminal Code Act 1995 (Cth). This application was initially rejected by the Sex Offenders Registry. He then came to us for assistance and we submitted a fresh Registered Offender Overseas Travel Application on his behalf so that he could travel to England on a certain date. This was ultimately approved.

In our submission, we included vital key points which convinced the Register that he should be granted permission to travel, including: (1) that the proposed holiday was for the purpose of visiting a sick relative, (2) that the client would be with his family for the entirety of the holiday, (3) that he had complied with his reporting obligations in the past, (4) that he had travelled previously without incident, (5) that he had strong ties to the jurisdiction and (6) that refusal to travel in no way correlated with the purpose of the legislative amendments.

It is worth noting that although a person listed on the SOR may well be given permission to travel outside Australia, they may be turned back upon arrival at the destination if the officials of the foreign country so decide. You must report your return seven days after returning.

Overseas TravelDivision 271A.1 of the Criminal Code Act 1995 (Cth) makes it a criminal offence for an Australian Citizen with reporting obligations in connection to any State or Territory Sex Offender Register to leave Australia without the permission of a ‘competent authority’ (i.e. the Chief Commissioner of Police). This offence is punishable by 5 years imprisonment. Our firm has extensive experience in assisting registrable offenders to apply for permission to travel.

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Investigative Powers and ProceduresUnder section 27(1), a police officer may take the fingerprints or a fingerscan of a registrable offender if the fingerprints or fingerscan are not already held by the Chief Commissioner; or the registrable offender is reporting and the police officer is not satisfied as to the identity of the registrable offender.The registrable offender may be served with a notice under section 27(2) directing them to attend at a police station within 28 days to have their fingerprints or fingerscan taken. Section 464ZFAB of the Crimes Act 1958 also allows a police officer to direct a person to provide a DNA sample if they are a registrable offender and the Chief Commissioner does not have a forensic sample from the person. A senior police officer may serve a notice on a registrable offender directing them to attend a police station within 28 days to provide a DNA sample.

What If I Do Not Comply With the Reporting Obligations?It is a criminal offence not to comply with your obligations under the Act. Failing to comply with reporting conditions on the Sex Offender Registry is a quite commonly charged offence.Because of the extensive details which must be reported, people can inadvertently fail in their reporting obligations.Failing to report can result in a penalty of up to 5 years imprisonment. There is no statutory limitation on when proceedings can commence on a charge of failing to comply with reporting obligations.It is a defence to a charge of failing to comply with reporting obligations if the offender has a reasonable excuse for the failure. The Court hearing the charge will determine whether the excuse is reasonable or not.We making the assessment of whether the failure was reasonable, the court must have regard to the following factors from s 46(2) of the Act:

a. the person’s age; andb. whether the person has a disability that affects the person’s ability to understand, or to

comply with, those obligations; andc. whether the form of notification given to the registrable offender as to his or her obligations

was adequate to inform him or her of those obligations, having regard to the offender’s circumstances; and

d. any other matter the court considers appropriate.

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A Case Study - Failing to ReportOur client was charged with failing to comply with his obligations under the Sex

Offender Registration Act. He had nearly completed his 8 years of Registration successfully but had failed to disclose an email address which had been active

for a number of years.

The client accidentally overlooked the email address, because it was rarely

used. He had another email that he used regularly, and that had been disclosed. It was important to demonstrate to the Court that the failure was an inadvertent mistake, rather than wilful noncompliance.

We had evidence of other instances where he had properly complied with

reporting obligations, which made it more likely that it was just a slip up. He had been through some extremely difficult personal times through the period of the Order. Excellent character references were obtained.

It was very important to present all of this to the Court in order to avoid a prison sentence. The Magistrate was ultimately satisfied that the failure was on the lower end of the scale of offending and imposed a fine.

We have successfully defended charges of failing to report in breach of the Act.We have done this by casting doubt on the prosecution case. By cross-examining police witnesses we were able to create reasonable doubt as to whether or not a client’s new mobile phone number had in fact been reported.We have also successfully defended matters in different circumstances – by accepting that the failure to report occurred, but successfully arguing that the failure was reasonable.

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The harsh operation of the Sex Offenders Register

demonstrates the importance of being properly defended

when charged with a sex offence. A proper defence can

stop you being placed on the register when you shouldn’t be.

Legal SupportThe real issue with these charges is that a person who has been previously convicted of sex offences is not given a chance to move on with their life after serving their sentence. They can continue to be charged with offences and involved with the criminal justice system for very simple mistakes in reporting.In many cases someone who has completely rehabilitated since their offending and who had been professionally assessed as a low risk of re-offending is placed on the register for life.This regime would operate more sensibly and efficiently if the Courts were given more discretion over its application. Unfortunately this is not the case.

Doogue + George lawyers have extensive experience with the sexual offence charges and the Sex Offenders Register.If you need expert advice regarding sexual offences or the Sex Offenders Register, visit www.dobg.com.au or call 03 9670 5111 for more information.

Melbourne Level 5, 221 Queen Street 9670 5111 Heidelberg 1/94 Burgundy Street 9455 0787

Broadmeadows 24A Railway Crescent 9351 1455 Moorabbin 1/441 South Road 8527 4700Sunshine 136 Durham Road 9311 8442 www.dobg.com.au

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