The Sex Offender Registration Act: The defence lawyer’s perspective
Dealing with sex offences is a complex task, but one that defence lawyers regularly face. As defence lawyers, we have the responsibility of eliminating any outrage, objection or judgement and instead analyse the issues from the perspective of the justice system, rather than from any moral platform.
When a person is charged with sex offences such as rape charges, lawyers are keenly aware that ramifications upon a finding of guilt are immense. This can include the prospect of a custodial sentence in a high security prison. The longer term consequences include being placed on the Sex Offenders Register. In essence, the Sex Offender Register exists to allow Victoria police to keep tabs on registered offenders. This emphasises the significance of being properly defended in sex matters. The Register may be an issue for both those who serve a prison term and are then released into community, as well as those who receive sentences which don’t involve an immediate custodial term.
What is the purpose of the Register?
Section 1 of the Sex Offender Registration Act 2004 sets out the purpose of the Act:
(a) to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time-
(i) to reduce the likelihood that they will re-offend; and
(ii) to facilitate the investigation and prosecution of any future offences that they may commit;
(b) to prevent registered sex offenders working in child-related employment;
(c) to empower the Police Ombudsman to monitor compliance with Part 4 of this Act.
The classes of offending:
The Act establishes 4 classes of offence for which a finding of guilt can result in sex offender registration:
- Class 1 – offences of sexual penetration against children (e.g. incest, sexual penetration of a child and sexual penetration of a child under 16)
- Class 2 – non-penetrative sexual offences, mostly against children (e.g. indecent acts with children, facilitating the prostitution of children, possessing and producing child pornography. Class 2 also includes other miscellaneous sex offences such as bestiality).
- Class 3 – sexual penetration against adults (e.g. rape)
- Class 4 – non-penetrative sexual offences against adults (e.g. indecent assault, assault with intent to rape, burglary with intent to commit a sexual or indecent assault, aggravated burglary with intent to commit a sexual or indecent assault).
Who gets registered?
Any adult who is sentenced for a Class 1 or 2 offence is on the list. This is automatic, and the Sentencing Judge/Magistrate has no discretion.
A Judge/Magistrate has a discretion to order someone onto the Register if
- an adult is sentenced for a class 3 or 4 offence, and that person has previously been convicted of 2 or more sexual offences, either at the same hearing or in the past.
- a child is sentenced for a class 1 or a class 2 offence
- where the court deems it appropriate because a person poses a risk to the sexual safety of one or more persons in the community
Significantly, where two or more charges for sexual offending arise out of the one set of circumstances, the law provides that those charges can be treated as a single charge for the purposes of the Sex Offender Registration Act.
What happens once someone is on the List?
If a person is listed as a registrable offender, the two main consequences are reporting obligations and employment restrictions.
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:
- Single Class 1 offence or Two Class 2 offences – 15 years
- Single Class 2 offence – 8 years
- 2 x Class 2 offence – 15 years
- Combination of Class 1 and 2 offences – Life
- 3 or more Class 2 offences – Life
- Persistent sexual abuse of children – Life
For a person sentenced to an immediate term of imprisonment, reporting obligations commence once the offender has been released from custody.
What does an offender have to report?
A registered sex offender must report (among other things), in person, to a police station providing full details of
- name and aliases,
- date of birth
- residential address,
- employment details,
- club affiliations where child participation,
- motor vehicle details,
- permanent/distinguishing marks,
- travel intentions and
- the names and ages of children generally residing with (‘residing generally’ being any 14 days in 12 months), or in unsupervised contact (‘unsupervised contact’ being unsupervised contact with the child for at least 3 days in any period of 12 months) with the offender (s14)
- email addresses
- mobile phone numbers
Annually the registered person is obligated to report their details to the Chief Commissioner of Police and any changes to the above details within 14 days of the change occurring. The offender must also report any change in permanent mark/feature or any tattoo as well as any absence from Victoria.
That list in black and white, covers a vast proportion of the movements and activities that the registered offender partakes in. Now the grey.
The term “affiliation” (bullet point 5) is not defined under the Sex Offenders Registration Act, therefore it must be interpreted in line with the object and purpose of the Act, but also in line with the Charter of Human Rights and Responsibilities.
By general ruling, affiliation would require a type of positive subscription to a group. Mere transient association would not suffice (an example of a transient relationship might be attending the same venue for a concert where a child may be present).
Whether or not an ‘affiliation’ transgresses the prohibition is a matter to be decided by the Courts.
A blanket prohibition on all forms of affiliation would directly oppose the principles set out under the Victorian Charter. Especially those under s16 (Freedom of Association).
For example, an individual could not be compelled to forgo their membership to a political party, or a trade union, simply because they were subject of a SORA order, and there may be child members as it would be restricting their human right of free association.
As one of the purposes of the Act, as is to reduce the likelihood that a person would reoffend, factors that cannot clearly be defined, except on a case by case basis could include
- Size of the group;
- Demographic of the group;
- Purpose and function of the group;
- Whether or not participation in the group requires physical presence of members in order to function;
- Role of members of the group i.e. are they passive or active members, is their membership simply a payment or contribution and no correspondence or association with other members is required or involved or are regular meetings and contact with other members partaken in?
The term ‘Contact’ means any form of contact between a person and child, including physical, oral communication including over the telephone, written communication including electronic communication.
The provision of contact must be read in light of charter rights, in particular those found at s.12 (Freedom of movement), s.18 (Right to public life) and s.14 (Freedom of thought, conscience and religion)
Factors that cannot be clearly defined include;
- Duration of the contact – Is a daily walk along the same route as a child might take considered contact or does it require a more prolonged engagement?
- Inevitability of the contact in carrying out an unrelated task in a manner not designed to infringe the prohibition – Frequent visits to the local supermarket where the offender might stand in the aisle alongside a child by chance?
- Whether the contact was made in the course of exercising religious beliefs – attending church where children also attend?
- Whether the contact was made in public or private
Failure to comply
It is an offence for a registered sex offender to fail to comply with reporting obligations. The maximum penalty for this offence is 5 years imprisonment. There is no statutory limitation when proceedings can commence on a charge of failing to comply with reporting obligations.
It is also an offence for a registered sex offender to apply for or engage in ‘child related employment’. The maximum penalty for this offence is 2 years imprisonment.
‘Child related employment’ includes;
- Education institutions
- Community services, YTC, youth supervision units
- Paediatric wards of public hospitals;
- Clubs, associations or movements (including cultural, recreational or sporting nature)
- Religious organisations
- Baby sitting
- Coaching or private tuition
There is much debate in legal circles about the utility of orders under the Sex Offender Registration Act.
Again, as defence lawyers, we observe their capacity to stigmatize people and result in a proportion of Court cases where clients are not willing to plead guilty if the likely outcome is being placed on the Register. They’d much rather roll the dice on a jury verdict.
The recent Ombudsman’s report about the failings of the sex offender registration system, along with anecdotal evidence, show that the Register as it stands is serving little real purpose.
The Law Reform Commission is about to re-examine these issues and hopefully they will come to the conclusion that mandatory registration is a blunt tool and often has negative effects that far outweigh any positives.
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We offer a free first consultation with people on the Sex Offender Registry who would like to discuss any issues they are having regarding compliance or possible suspension of their reporting obligation.