Applicant v Applicant

1. In 2008, MB, who was aged 20, engaged in sexual intercourse several times with MD, who was aged 15. The relationship was reported to police after MB was introduced to MD's family by MD.
2. In 2009, MB pleaded guilty to and was convicted of four counts of sexual penetration of a child under the age of 16, contrary to s 45(1) of the Crimes Act 1958 (Vic), as it then stood. The sentencing judge, based on the expert evidence of forensic psychologist Jeffrey Cummins, found that MB was immature psycho-sexually and that there had been no grooming of MD: the two met up after MD posted a personal advertisement on a networking site. MB was sentenced to a total effective sentence of 18 months' imprisonment suspended for 18 months.

1. Since being sentenced approximately 16 years ago, MB has not been in any further trouble with the law and has been compliant with his reporting obligations. He is in a long-term, stable relationship. He has led an industrious life.

1. His work involves overseas travel, which is complicated by his reporting obligations. He may be required to travel overseas at short notice, but there are delays of 6-8 weeks in obtaining permission for such travel from the police pursuant to his reporting obligations.
2. An additional difficulty is that the parents of MB's long-term partner live overseas. His partner's father is in failing health. MB's partner is fearful of flying alone.
3. MB's application is strongly supported by testimonials from co-workers, family, friends and even the complainant from the original criminal proceedings.
4. There is also a recent report from forensic psychologist Jeffrey Cummins which states, most relevantly:

In my opinion [MB's] risk of committing a further sexual offence remains low - which is the lowest risk rating a psychologist/psychiatrist practising in Australia can assign. On the basis of both historical and recent assessment of [MB] it is my opinion there is no need for him be offered or be directed to participate in any further offence specific treatment.

1. The Chief Commissioner of Police did not oppose the application to suspend MB's reporting obligations, having regard to MB's positive progress over the last 16 years, his work and personal commitments and Mr Cummins' expert evidence. Nor did the Chief Commissioner oppose the pseudonym order.

1. The relevant provisions of the Act are, in particular, ss 39 and 40.

39 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.

40 Order for suspension

(1) On the application under section 39(2), the Supreme Court may make an order suspending the registrable offender's reporting obligations.

...

(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 under section 41.

...

1. In light of the matters referred to above, especially the expert evidence of Mr Cummins, I was satisfied that MB is a low risk to the sexual safety of others in the community and that it was in the public's interest to suspend MB's reporting obligations for life.
2. I was also satisfied that, in the exercise of the court's inherent jurisdiction, it was in the interests of justice to make the abovementioned pseudonym order. In my view, such an order strikes a proper balance between, on the one hand, open justice (that is, allowing for the publication of these reasons) and, on the other hand, the public interest in not undermining the progress made by MB in his personal and professional life.