Applicant v Applicant

1. A man in his mid-fifties, ("GT"),[1] applied for an order suspending his reporting obligations as a registrable offender under section 39 of the Sex Offenders Registration Act 2004 (Vic) ("the Act"). GT became a registrable offender in 2006, and his reporting obligations commenced upon his release from custody in 2008. Save for a minor infringement,[2] GT has complied with his obligations for over 15 years.
2. GT's application was opposed by the Chief Commissioner of Police ("the Chief Commissioner")[3] on the basis that GT's offending was so grave that he should continue to be subject to reporting obligations.
3. An order suspending GT's reporting obligations was made on 2 December 2024. The reasons for making that order are as follows.

1. GT pleaded guilty in the County Court of Victoria to 6 charges of sexual penetration of a child under the age of 16.[4] On 24 January 2006, GT was sentenced to 5 years and 6 months' imprisonment, with a non-parole period of 2 years and 6 months. As a result, he became a registrable offender under the Act.[5] GT was required to comply with reporting obligations under the Act for the remainder of his life.[6]
2. GT was released from custody on 24 July 2008. He was not made the subject of a lifelong reporting period under any corresponding Act whilst in a foreign jurisdiction prior to becoming a registrable offender in Victoria, nor is he on parole in respect of a registrable offence. For these reasons, he was eligible to apply to this court for an order suspending his reporting obligations.[7]

B.2 Personal history and background to the offending

1. GT was born in Victoria. Along with his younger brother, he was brought up in a nurturing and supportive family environment. At the age of 8, he was sexually assaulted by an 18 year old neighbour over a period of approximately a week. The neighbour was never charged with any offence.[8]
2. Also when GT was young, his best friend committed suicide by hanging. GT found him and attempted to save him. At the time, GT believed he coped relatively well with this traumatic event compared to others.
3. When GT was in his mid-thirties, a 15½ year old female foster child was placed into the care of him and his second wife. Neither GT nor his wife had any training in or experience of caring for a foster child, and the relationship between the 3 of them quickly became tense. Within some weeks, GT commenced a sexual relationship with the girl. That GT's offending involved a serious abuse of trust is self-evident. The victim was in an especially vulnerable position due to her background and circumstances, and had been placed in GT's care for her protection.
4. Upon GT's offending being disclosed, GT immediately took full responsibility and acknowledged the wrongfulness of his conduct. He pleaded guilty to the 6 charges against him at the earliest opportunity. As the sentencing judge observed, no matter what mental and emotional state GT was in at the time (there were a number of issues in this regard), such reprehensible offending could never be justified in any way.
5. The relatively short non-parole period of 2 years and 6 months was imposed in recognition of, amongst other things, the absence of any prior convictions and the "laudable attitude" GT displayed concerning rehabilitation. The sentencing judge assessed GT's prospects of reoffending as very slight; an assessment which has been borne out by subsequent events.
6. GT has been married twice before and is presently engaged to be married again. GT's first marriage produced 3 children and ended after approximately 8 years. His second marriage lasted for approximately 7 years. GT met his current partner and fiancée in 2021, and their relationship has been described as close and stable, with his fiancée being supportive of him (including of this application). GT's fiancée has a son who lives with her ex-partner. GT has only met him twice.
7. GT's relationships with his children are limited and contact is sporadic. Not surprisingly, these relationships were adversely affected by GT's offending and subsequent incarceration. GT's eldest child has a young daughter he has never met.
8. There is no suggestion that GT has any issues with alcohol or drugs. He has not been diagnosed with any mental health issues.

1. In January 2024, GT was assessed by a forensic psychologist and found to be a low risk of future sexual offending.[9] Further, the assessment reported that no risk factors which would augment GT's risk of sexual recidivism had been present in the last 12 months.
2. In the opinion of the forensic psychologist, GT would benefit greatly from suspension of his reporting obligations to allow him to live a stigma-free life. Although GT has been assessed as rehabilitated, it was considered the suspension would provide further support to GT in light of the positive steps he has taken in this regard.
3. GT has said that his reporting obligations have hung "over [his] head to a degree". GT reported the main reason for making this application is the toll the reporting obligations are continuing to have on his relationships.[10] In particular, he has ageing parents who reside in New South Wales, just on the other side of the Victorian border. He presently cannot attend to them without providing notification. Further, he has a desire to be able to travel freely with them.
4. Furthermore, both GT and his fiancée want to start their marriage without GT having ongoing reporting obligations, so they have an ability to be spontaneous with their plans. This includes being able to travel overseas on a honeymoon.
5. Finally, GT has stated that he considers himself his harshest critic and that he is determined never to reoffend. He believes he has done everything in his power to resume a normal, healthy life,[11] and that he has demonstrated that his offending was uncharacteristic.

C.1 Statutory provisions and legal principles

1. The Act came into operation in 2004. It requires registrable offenders to be registered on Victoria's register of sex offenders[12] and imposes certain obligations and restrictions. Its purposes include requiring certain sexual offenders to keep police informed of their whereabouts and other personal details for a period of time, with a view to reducing the likelihood of their reoffending and also to facilitate the investigation and prosecution of any offences they may commit.[13]
2. Within 7 days of a registrable offender's release from custody, specified personal details must be provided to police.[14] This initial reporting must be supplemented by annual reporting of personal details,[15] as well as the reporting of any change to an offender's personal details generally within 7 days of the change occurring.[16] Further, if an offender intends to leave Victoria for 2 or more consecutive days, details of the intended travel must be provided to the Chief Commissioner at least 7 days before the intended departure date.[17] There are further reporting obligations if travel plans change while out of Victoria.[18] If an offender decides not to leave Victoria or returns from travelling outside Victoria, these events must also be reported.[19]
3. These are the main reporting obligations. There are further reporting obligations and procedures it is unnecessary to refer to.[20]
4. An offender has a right to privacy and support when reporting pursuant to the obligations imposed under the Act.[21]
5. Section 39 of the Act provides:

1. Supreme Court may suspend certain registrable offenders' reporting obligations

(1) This section applies to a registrable offender who is required to continue to comply with the reporting obligations imposed by this Part for the remainder of his or her life. > > (2) If - > > > (a) a period of 15 years has passed (ignoring any period during which the registrable offender was in government custody) since he or she was last sentenced or released from government custody in respect of a registrable offence or a corresponding registrable offence, whichever is later; and > > > > (b) he or she did not become the subject of a life-long reporting period under a corresponding Act whilst in a foreign jurisdiction before becoming the subject of such a period in Victoria; and > > > > (c) he or she is not on parole in respect of a registrable offence - > > the registrable offender may apply to the Supreme Court for an order suspending his or her reporting obligations.

(1) On the application under section 39(2), the Supreme Court may make an order suspending the registrable offender's reporting obligations. > > (1A) ... > > (2) A court must not make an order under this section unless it is satisfied that -

(a) the registrable offender poses no risk or a low risk to the sexual safety of one or more persons or of the community; and

(b) it is in the public interest to suspend the registrable offender's reporting obligations.

(3) In deciding whether to make an order under this section, a court must take into account -

(a) the seriousness of the registrable offender's registrable offences and corresponding registrable offences; and

(b) the period of time since those offences were committed; and

(c) the age of the registrable offender, the age of the victims of those offences and the difference in age between the registrable offender and the victims of those offences, as at the time those offences were committed; and

(d) the registrable offender's present age; and

(e) the registrable offender's total criminal record; and

(f) any other matter the court considers appropriate.

(4) In deciding whether to make an order under subsection (1), the Supreme Court must also take into account any submissions made by the Chief Commissioner ...

...

1. At the time this application was heard, GH v Chief Commissioner of Police[22] was the only decided case involving an application to suspend reporting obligations under this statutory regime. In that case, in giving reasons for suspending the applicant's reporting obligations, Croucher J provided an extensive analysis of the relevant provisions.[23] The parties took no issue with his Honour's approach. I generally agree with his Honour's analysis.[24]
2. In short, the court has a discretion in determining whether to suspend reporting obligations. This may only be exercised if the threshold eligibility requirements under section 39(2) are met, and the 2 conjunctive stipulations of section 40(2) are satisfied. As to the latter, the question of whether or not it is in the public interest to suspend reporting obligations (as contemplated by paragraph (b)) must be considered separately from the risk the offender poses (as provided for in paragraph (a)).[25]
3. Further, in exercising its discretion judicially, the court must take into account the matters listed in section 40(3). Findings regarding the matters set out in section 40(3) will plainly be relevant to a determination about risk for the purposes of section 40(2)(a). They will also be relevant to the question of whether it is in the public interest to order suspension, as well as to the exercise of the discretion more generally.[26]
4. The reference to "any other matter the court considers appropriate" in section 40(3)(f) is very broad, and the types of matters that might be taken into account under this paragraph on any particular application are of equally broad compass. Such matters may include an applicant's rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Charter").[27]
5. Neither section 39 nor section 40 refers to a standard of proof,[28] or where any burden of proof may lie on an application made under section 39(2). In the court exercising its discretion, it is simply a question of whether or not it is satisfied on all the evidence that the 2 requirements in section 40(2) have been met. The means and circumstances by which the court might be so satisfied will depend on the gravity of the matters to be determined, the particular subject matter of the proceeding (including the nature and extent of the sexual offending) and the context more generally in which the issues arise. If the court is not so satisfied, the application must be refused.[29]

1. As there was no issue that the threshold eligibility requirements under section 39(2) had been met, and that GT had been assessed by an expert as being a low risk of future sexual offending, GT's submissions were primarily focused on the question of public interest. GT submitted it was in the public interest to suspend reporting obligations when a registrable offender was of no or low risk so that police resources could be directed to more serious matters. Further, it was submitted a suspension in such circumstances would facilitate GT's rehabilitation and reintegration into the community and avoid ongoing extra-curial punishment.
2. In referring to the second reading speech for the Sex Offenders Registration Amendment (Miscellaneous) Bill 2017 (Vic), GT submitted that it had been recognised that there may be cases where a sufficient period has lapsed, it has been demonstrated an offender is no longer a significant risk and there is no benefit to the community in requiring the offender to continue to report.[30] It was contended that in these circumstances, there would be no public interest in continued reporting.
3. GT also relied upon the observation by Croucher J that it would be a rare or extreme case that the court would be satisfied that an applicant was of no or low risk but would not be satisfied it was in the public interest to suspend reporting obligations.[31]
4. In relation to other relevant factors, it was acknowledged that the index offending was objectively grave and involved factors that placed it at the serious end of the spectrum. In particular, GT accepted that the gravity of his offending was extenuated by the fact that it involved a profound breach of trust with respect to a vulnerable child in GT's care.
5. That said, GT contended that his offending was not so serious as to preclude suspension of his reporting obligations. Mitigating circumstances were submitted to include the long-term effects of GT's own childhood sexual abuse, the absence of proper training or techniques to deal with a vulnerable teenage girl and the ongoing emotional issues that GT was experiencing at the time. GT submitted the position was properly explained by the sentencing judge: "What has happened here is that a man with a longstanding emotional problem in a stressful situation has succumbed".
6. Further, the fact that there was no tendency or any suggested likelihood of paedophilic behaviour (either generally or specifically) on GT's part was relied upon.
7. It was noted that at the time of his offending, GT was a man in his mid-thirties with no prior criminal record. It was further submitted that he displayed appropriate remorse and frankness.
8. As for GT's character, it was submitted he was of good standing both in his employment and more generally. A reference from GT's employer of the past 15 years spoke of GT, as the employer's second-in-charge, as trustworthy and reliable. The employer also referred to the limitations GT's reporting obligations created with respect to business opportunities, including GT's involvement in interstate and trans-Tasman projects being hampered because of his inability to travel at short notice.
9. It was further submitted that it was important that reporting obligations under the Act did not assume a punitive character.

1. The principal basis upon which the application was opposed was that it would not be in the public interest to suspend GT's reporting obligations.
2. In emphasising that this must be considered separately to the level of risk GT poses, the Chief Commissioner submitted the starting point is that the Act was designed to ensure people who commit certain types of offences will be required to comply with reporting obligations for life.[32] Thus, it was submitted the question is not whether there remains a public interest in having a registrable offender continue to report, but rather whether the court is satisfied that there is a public interest in suspending that offender's lifelong reporting obligations.
3. There were a number of matters identified in submitting that GT could not satisfy the court that it was in the public interest to suspend his reporting obligations.
4. First, it was submitted GT's offending was in the upper range of severity for this type of offending. It involved a repeated and gross abuse of trust in relation to a particularly vulnerable victim of a young age with psychiatric issues. It was submitted these matters were relevant to the public interest involved in requiring GT to continue to report.
5. Secondly, and relatedly, it was submitted that GT's offending undermined the integrity of the foster care system for vulnerable children. It was submitted there was no public interest in departing from the consequences expected to flow under the Act, namely lifelong reporting obligations to ensure notification if GT proposed to have contact with vulnerable children in the future.
6. Thirdly, despite GT's offending having occurred over 19 years ago, it was submitted the public opprobrium for this type of offending has not diminished. On the contrary, the Chief Commissioner contended that there are higher public expectations about the integrity of systems that purport to care for children.
7. Fourthly, the Chief Commissioner referred to the difference in age between GT and the victim. At the time of his offending, GT was 36 years old with children of his own, while the victim was only 15 years old.
8. Fifthly, it was submitted GT was not of an age that would make an order for suspension of his reporting obligations potentially in the public interest.
9. Sixthly, while acknowledging GT's human rights are a relevant consideration, it was submitted the reporting obligations impinge on those rights in a manner that is proportionate and justified. In this regard, it was noted that GT did not consider the reporting obligations particularly onerous.
10. Seventhly, it was noted that the restrictions imposed upon GT do not prevent him from travelling outside Victoria. In circumstances where GT is permitted to so travel subject to reporting, it was submitted the obligations do not unduly interfere with his human rights and are not likely to risk his continued rehabilitation.
11. Eighthly, while acknowledging GT's rehabilitation efforts, that there had been no further sexual or similar offending and that GT has improved social circumstances, the Chief Commissioner submitted such factors were personal to GT and were not sufficient to satisfy the public interest requirement.
12. Ninthly, it was submitted the circumstances of this case were far removed from those considered by Croucher J in GH v Chief Commissioner of Police.[33] It was submitted that, contrastingly, GT's offending fell squarely within the type of offending for which lifelong reporting obligations were intended. Without being exhaustive, the Chief Commissioner emphasised that GH v Chief Commissioner of Police involved a much smaller age gap between the offender and the victim, offending of lesser gravity, an absence of a number of factors concerning the victim's vulnerability (including that the victim was not in foster care but was living at home with her parents who had knowledge of the sexual relationship), and no breach of trust. It was also noted that the offender in that case was not sentenced to imprisonment as a result of their offending.
13. In addition, the Chief Commissioner referred to the matters specifically identified in section 40(3).
14. Referring to section 40(3)(a), in addition to the matters referred to above concerning the nature of GT's offending,[34] it was submitted that even if GT had "succumbed" in a "stressful situation", his offending continued over a number of weeks, giving GT "plenty of time to stop". Further, to the extent that the victim "consented" to the sexual acts, the power imbalance was such that any consent reflected GT's abuse of his position of trust and thereby rendered his offences more grave and his moral culpability greater. As the sentencing judge stated, the breach of trust was "just too great". Furthermore, it was submitted any mitigating circumstances did not reduce the seriousness of GT's offending itself.
15. Referring to section 40(3)(b), it was accepted that over 19 years had passed since GT committed the offences.
16. Referring to section 40(3)(c) and (d), the submissions concerning the age difference between GT and the victim were repeated, as well as a reference to GT's current age.
17. Referring to section 40(3)(e), while GT's single failure to comply with reporting obligations was raised, nothing further was submitted in this regard.

1. Although the Act expressly provides for imposing upon certain registrable offenders obligations to report for the remainder of their lives, it does so subject to, amongst other things, the ability of a registrable offender to apply to have those obligations suspended.
2. I am satisfied based on the uncontroverted evidence before the court that GT poses a low risk to the sexual safety of 1 or more persons or of the community. The real question on this application is therefore whether it is in the public interest to suspend GT's reporting obligations.
3. Plainly, GT's registrable offences are serious. The difference in age between GT and the victim is significant, and the fact that his offending occurred while the then 15 year old victim was in foster care, and under the trust and care of GT (who was 36 years old at the time of his offending), is of particular concern. Those responsible for the care of vulnerable children must understand that there will be no tolerance for abuse of children in such a situation. However, the suspension of reporting obligations is not inconsistent with such an attitude. GT will remain on the register of sex offenders for life.[35]
4. It has been approximately 20 years since GT committed the offences. GT, who is now 56 years old, has demonstrated a sustained determination to rehabilitate and successfully reintegrate as a member of society. He remains extremely remorseful and ashamed of his offending. The nature and circumstances of his offending should not be treated as an insurmountable bar for the purpose of determining whether it is in the public interest for his reporting obligations to be suspended.
5. Without in any way diminishing the seriousness of GT's offending, it must be acknowledged that his criminal record is otherwise limited and he has not been found guilty of any other sexual offending.[36] While I accept the Chief Commissioner's submission that the facts of this case are very different to those in GH v Chief Commissioner of Police,[37] distinguishing that case does not take the matter much further. Naturally, each case must be considered according to its own circumstances.
6. Although the actual practicalities of reporting may not be onerous in and of themselves, the burden of being subject to the reporting regime provided for under the Act is apparent in circumstances where GT's elderly parents reside in New South Wales. It may be expected that in the near future there will be occasions where GT's parents may require prompt, if not urgent, assistance. Continued reporting requirements would prevent GT from immediately personally attending to such a situation.
7. Further, there is undoubtedly a public interest in the court, where appropriate, acknowledging exemplary conduct of an offender in determining to suspend reporting obligations. Such acknowledgement may be seen as an encouragement to other registrable offenders to comply strictly with their obligations under the Act and broader rehabilitation efforts, and may therefore serve the other objects of the Act.
8. In all the circumstances, I am satisfied that it is in the public interest to suspend GT's reporting obligations under the Act. The suspension will allow GT to more meaningfully engage in various normal lifestyle activities, including with his fiancée and his ageing parents. It will also remove impediments to him fully participating in his occupation (consistent with the wishes of his employer). Facilitating such matters in circumstances where GT also presents a low risk of reoffending is clearly in the public interest.
9. It should be noted that this decision has been reached in circumstances where no victim impact statement was filed and there was no evidence of the victim expressing any view about the application for suspension.

1. For these reasons, GT's reporting obligations were suspended by orders made on 2 December 2024.
2. For completeness, it has not been necessary to refer expressly to the Charter in determining the issues raised on this application.[38] Both parties agreed the Charter was relevant. The result of the application is consistent with the legislated rights under the Charter, including to rights of children to be protected.[39]

[1] On the court's own motion, a pseudonym has been used to protect the victim's identity.

[2] The prosecution accepted that this infringement was not of a material nature and ought not adversely affect GT's application if the court were otherwise minded to order the suspension.

[3] Who is a party to the proceeding: the Act, s 41.

[4] Contrary to then s 45(1) of the Crimes Act 1958 (Vic).

[5] For the meaning of "registrable offender" and "registrable offence", see the Act, ss 6 and 7 respectively.

[6] Ibid, s 34(1)(c)(i).

[7] Ibid, s 39. See par 23 below.

[8] There was evidence to suggest GT's brother was also sexually assaulted. His brother subsequently sought retribution and was charged for assaulting the neighbour.

[9] This is the lowest classification available under the risk assessment tools utilised. In other words, under the criteria used, no person assessed is able to achieve a risk outcome of nil.

[10] GT acknowledged that he did not find the reporting obligations in themselves particularly onerous.

[11] This includes having willingly engaged with various counselling services concerning sexual offending.

[12] In relation to the register, see the Act, s 62.

[13] Ibid, s 1(1)(a).

[15] Ibid, s 16(1)

[16] Ibid, s 17(1). There are some more stringent reporting requirements not presently relevant.

[17] Ibid, s 18.

[18] Ibid, s 19.

[20] See, for example, ibid, ss 21, 21A, 22, 23, 23A.

[21] Ibid, s 24.

[22] [2024] VSC 216.

[24] Since then, further judgments have been delivered in which Croucher J's approach was either applied (WJH v Chief Commissioner of Police [2024] VSC 818, [11] (Champion J)) or "substantially" adopted: Re AJ [2024] VSC 769, [105]-[110] (Kaye JA).

[25] GH v Chief Commissioner of Police [2024] VSC 216, [83] (Croucher J). It is unnecessary to express any view on whether satisfaction of paragraph (a) would be "highly favourable" or otherwise to the court being satisfied with respect to the public interest consideration under paragraph (b): compare [82].

[26] Ibid, [85]-[86], citing C, M v Commissioner of Police [2014] SASC 163; (2014) 121 SASR 106, 109-110 [12] (Nicholson J).

[28] Contrast s 11(3), which refers to the court being satisfied beyond reasonable doubt. For further discussion on the matter, see ibid, [99]-[103], referring to C, M v Commissioner of Police [2014] SASC 163; (2014) 121 SASR 106, 112-113 [19]-[20] and L, R v Commissioner of Police [2018] SASC 181, [12] (Nicholson J).

[29] Ibid, [102]; Re AJ [2024] VSC 769, [118] (Kaye JA).

[30] Victoria, Parliamentary Debates, Legislative Assembly, 11 May 2017, 1280.5 col 1 (Lisa Neville, Minister for Police).

[31] GH v Chief Commissioner of Police [2024] VSC 216, [82].

[32] Referring to L, R v Commissioner of Police [2018] SASC 181, [47] (Nicholson J).

[33] [2024] VSC 216.

[34] See pars 42-43, 45 above.

[36] In 2017, GT was fined for failing to comply with his reporting obligations in circumstances where he suffered a workplace injury and decided to stay with his parents in New South Wales.

[37] [2024] VSC 216.

[38] Compare Re AJ [2024] VSC 769, [142]-[147] (Kaye JA).

[39] The Charter, ss 10, 12, 13 and 17.