Applicant v Respondent

1 By application dated 17 May 2023, RBC ('the applicant') applies for the suspension of his reporting obligations imposed under the Sex Offenders Registration Act 2004 (Vic) ('the SORA Act'). Hearings in this matter occurred on 23 January, 21 February, and 3 July 2024.

2 The applicant became subject to the SORA Act on 13 October 2006, after pleading guilty at his committal hearing and being sentenced in the County Court of Victoria with respect to the following offences:

(a) One count of sexual penetration of a child under the age of 16; and

(b) Two counts of committing an indecent act with a child under the age of 16.

3 In the County Court, the sentencing judge imposed a total effective sentence of 14 months imprisonment, 11 months of which were suspended for two years. The applicant was placed on the Sex Offenders Register for life.

4 The offending in this matter occurred when the applicant was 21 and 22 years old between June 2001 and March 2002. The nature of the index offending was adequately described by the learned sentencing judge, and a copy of those remarks was provided to this Court as part of the filed material.

5 Briefly, the complainant was the applicant's cousin, who was 15 years of age at the time of the offending. The complainant and the applicant had a close relationship, and the complainant would regularly stay at the applicant's home and spend time with him and his friends. When the complainant stayed with the applicant, she would sleep in his bed and had done so on numerous occasions prior to the offending.

6 The first instances of offending, the indecent acts, involved the accused grabbing and touching the complainant's breasts, touching her pelvic area, and grabbing and slapping her bottom. The count of sexual penetration occurred in March 2002, when the complainant was staying in the applicant's bed. The applicant pulled down the complainant's underwear and inserted his penis into her vagina whilst she told him to stop and tried to push him off her.

7 Pursuant to section 6E of the Sentencing Act 1991 (Vic), the applicant was sentenced as a serious sexual offender.

8 The Register of Sex Offenders, on which the applicant was placed in 2006, is established and provided for by the SORA Act. As noted by the sentencing judge, the SORA Act imposes reporting obligations on registered offenders, mandating the provision of certain information to law enforcement authorities on an ongoing basis. Failure to adhere to reporting obligations is a criminal offence.

9 Division 6 of Part 3 of the SORA Act provides for the suspension of the reporting obligations, stating as follows:

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. 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.

(1A) On the application under section 39A, a court may make an order suspending the registrable offender's reporting obligations for the period of time specified in the order (which may be the remainder of the offender's life).

(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.

(5) In deciding whether to make an order under subsection (1A), a court must also take into account any evidence presented by the Chief Commissioner as to the risk that the registrable offender presents to the sexual safety of one or more persons or the community.

1. Chief Commissioner is party to application

The Chief Commissioner of Police is a party to an application under section 39(2) and may make any submission to the Supreme Court in respect of the application.

10 In the recent decision of Re GH [2024] VSC 216 ('GH'), which was the first judgment of this Court on an application of this kind, Croucher J provided a comprehensive summary of the legislative provisions governing applications for the suspension of reporting obligations, as well indicating the manner in which the provisions of the SORA Act are to be construed with respect to such applications. These matters are detailed in paragraphs 77 to 89 of the GH judgement. With great respect to His Honour, I agree with and adopt his Honour's opinions and conclusions regarding these matters, and do not propose to add to the commentary about them, subject to the remarks immediately below.

11 There were three matters with respect to which Croucher J did not hear full oral argument, and as such, his Honour's views regarding these matters can be explained as tentative only. His Honour noted as follows:

(a) The phrase, 'poses no risk or a low risk', in section 40(2) should be read as 'poses no risk and will not pose a risk in the future, or poses a low risk and will not pose more than a low risk in the future';

(b) The phrase, 'poses no risk', in section 40(2)(a) can be treated as meaning 'poses no appreciable risk'; and,

(c) Reference to terms of onus and standard of proof may not be apposite, rather, the fundamental question before a court when considering these applications is one of whether the court is or is not satisfied.

12 His Honour's discussion with respect to these three matters is detailed in paragraphs 90 to 103 in the GH judgement, and I adopt His Honour's interpretations as detailed above.

13 The applicant seeks an order suspending his reporting obligations pursuant to section 40(1) of the SORA Act.

14 I note that this application was originally opposed by the respondent. However, following the evidence of Mr Patrick Newton, which is discussed below, it was conceded that the applicant represented a low risk in the relevant sense. Further, on the last hearing of this matter in July 2024, the respondent conceded that it is in the public interest that the application be granted. As such, when considering this application, I did so on the basis that it was unopposed, but at the same time bringing an independent approach to the issue, as is required.

15 Section 39(1) and (2) of the SORA Act detail the threshold requirements which a registerable offender must meet in order to be eligible to make the relevant application. These requirements are as follows:

(a) The applicant is a registerable offender who is required to continue to comply with the reporting obligations imposed by Part 3 of the Act for the remainder of his life;[1]

(b) A period of 15 years has passed since the applicant was sentenced in respect of the corresponding registerable offence;[2]

(c) The applicant 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;[3] and

(d) The applicant is not on parole in respect of a registerable offence.[4]

16 I am satisfied that the applicant meets these threshold requirements, noting that these matters were not the subject of challenge by the respondent.

17 When determining an application of this kind, this Court must consider the following matters.

Seriousness of the registerable offences - section 40(3)(a)

18 Counsel for the applicant drew the Court's attention to the sentencing reasons of his Honour Judge Duckett, who imposed sentence with respect to the applicant's registerable offending in 2006.[5] Counsel submitted that the sentence imposed by his Honour is indicative of the learned judge's assessment of the offending as being in the 'low to moderate' range of culpability, which is consistent with the complainant's age at the time of the offending being so close to 16 years.

19 The respondent, relying on Clarkson v The Queen ('Clarkson'),[6] submitted that the sexual penetration charge should be categorised as in the 'moderate' range of seriousness when having regard to the circumstances as a whole. It is contended that applicant's offending should be distinguished from other matters involving under‑age 'consensual' sexual relationships on the basis that the applicant, at the time of the offending, was fulfilling the role of an 'older brother' to the complainant, and therefore the offending represents a significant breach of trust and power imbalance, as was present in Clarkson.

20 In assessing the applicant's conduct, the respondent makes reference to the Victim Impact Statement prepared by the complainant prior to sentence in 2006, which explained the significantly negative impact of the offending on her life, a matter noted by the sentencing judge.

21 Both parties accept that the offending occurred over 20 years ago.

The age of the applicant, the victim, and the age differences - section 40(3)(c)

22 The applicant was aged between 21 years and four months and 22 years and one month at the time of the offending, whilst the complaint was aged between 15 years and one month and 15 years and 10 months. The difference in age between the applicant and the complainant was about six years. These facts are not disputed.

The applicant's total criminal record - section 40(3)(e)

24 Counsel for the applicant noted that, at the time of sentence in 2006, the applicant had no prior convictions. Further, the applicant pleaded guilty at the first available opportunity at his committal hearing.

25 On 3 December 2009, the applicant pleaded guilty to charges of being drunk in a public place and hindering police. The applicant was fined $150 without conviction which, counsel contends, is indicative of the low range of culpability the presiding Magistrate placed on the applicant's offending.

26 On 22 April 2013, the applicant pleaded guilty to two charges of failing to comply with reporting conditions under the SORA Act. For these offences, the applicant was fined $1000 without conviction. Counsel noted that this offending arose in the context of the applicant travelling overseas to visit his parents and failing to give the authorities sufficient notice of his travel and return to Australia.

27 Finally, on 20 January 2016, the applicant pleaded guilty to another charge of failing to comply with reporting obligations under the SORA Act. The applicant was fined $100 without conviction. Again, this offending arose from the applicant failing to notify the authorities that he was travelling overseas to assist his parents in the aftermath of a natural disaster. Counsel observed that the imposition of a small fine in this instance is an indication that the presiding Magistrate accepted the urgency of the applicant's travel and his multiple attempts to contact the authorities prior to leaving the country.

28 None of these matters were challenged by the respondent.

29 The applicant drew the Court's attention to the very large number of character references which have been filed in this matter. Various people, including the applicant's family, friends, and business acquaintances, have provided references to this Court. Notably, at the time of writing these references, each person was aware of the applicant's past offending, and it is submitted that the applicant and his family have clearly been 'honest and open' about such matters.

30 It is counsel's contention that these references evidence the applicant's love for and dedication to his family and loyalty to his friends, and as well as indicating that the applicant is a 'decent man', who has created a successful business and made a significant contribution to the community. Counsel argues that the applicant should now be regarded as a 'model citizen'.

31 Counsel's submitted that the reporting obligations imposed by the SORA Act infringe the applicant's rights to freedom of movement, privacy, and reputation referred to in the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('the Charter').[7] Counsel observes that such infringement cannot occur without clear legislative intent and reason, and concedes that the SORA Act displays such intent and displaces these rights to enable authorities to, inter alia, supervise and monitor an offender for the benefit of the community. However, it is argued that when there is no longer any reason for infringing a person's rights, it is in the public interest to cease such infringement. I will discuss public interest in greater detail below, however, counsel for the applicant contends that there is overwhelming evidence demonstrating that there is little or no need for authorities to continue to monitor or supervise the applicant.

32 The respondent concedes that the rights referred to above have some relevance to this application, however, contends that these rights must be balanced against the right to protection of families and children, which is also referred to in the Charter.[8]

33 I accept these submissions and have had regard to the applicant's rights as discussed above in determining the outcome of this application.

34 The respondent further submits that the views of the victim and the ongoing statutory restrictions on the applicant should this application be granted are also matters for the Court's consideration. I accept these submissions and acknowledge the views of the victim which I have taken into account.

35 This Court must not make an order of this kind unless satisfied that the applicant poses no risk or a low risk to the sexual safety of one or more persons or of the community.

36 Counsel for the applicant submits that this Court should be satisfied that the applicant poses a low risk to the sexual safety of the community. This submission was not challenged by the respondent.

37 In support of this position, the applicant drew the Court's attention to the comments of Judge Duckett made in 2006 when noting, inter alia, that the respondent 'offer[s] no threat to the community' and '[is] rehabilitated'.

38 Reliance is also placed on the report of Mr Patrick Newton dated 24 May 2017, which was prepared for the purpose of addressing the character test and relevant discretionary factors detailed in the Migration Act 1958 (Cth), following the applicant's receipt of a Notice of Intention to Consider Cancellation with respect to his visa. This notice was issued as the Department of Home Affairs, as it is now named, suspected that the applicant may fail the character test on the basis of his convictions as identified above.

39 Mr Newton concluded that the applicant's level of risk of recidivism fell in the 'low risk range', which is 'considerably lower' than the risk posed by a typical sex offender, and is essentially equivalent to that of a 'normal community‑dwelling male'. Mr Newton further notes that the applicant's assessment in the 'low risk range' is the lowest rating available on an actuarial instrument.

40 A later report was prepared by Mr Newton on 28 December 2022 for the purpose of this application. In this subsequent report, Mr Newton states that 'no significant risk factors' are identified with respect to the applicant, and that the applicant 'remains a low to very low risk of recidivism, well below average relative to other sex offenders and essentially equivalent to the risk posed by other community dwelling adults'. Mr Newton opines, in this most recent report, that the applicant has good insight into his offending, has openly expressed remorse, is part of a stable marriage of some length, and displays, according to the Risk for Sexual Violence Protocol, a 'consistent pattern of stable behavioural adjustment with no persisting risk factors'.

41 On 23 January 2024, Mr Newton gave oral evidence at the hearing of the application with respect to the issue of risk. In essence, Mr Newton reinforced the conclusions detailed in his respective reports, and confirmed that the applicant is a very low risk of sexual recidivism according to the 'Static‑99R' risk assessment methodology, falls in the lowest possible category of risk for a person who has committed a sexual offence, and clearly and openly regrets his offending conduct. Mr Newton also went on to note that there is nothing that he has observed or identified with respect to the applicant which would give Mr Newton a 'skerrick of doubt' about him. It is worth noting, in passing, that Mr Newton expressed support for the application to suspend the applicant's reporting conditions.

42 The applicant contends that the above matters to which I have referred are compelling in the context of the Court's satisfaction that the applicant poses a low risk to the sexual safety of the community.

43 Further, counsel observed that Judge Duckett's 2006 findings that the applicant was not a threat to the community and was rehabilitated have been consistently confirmed by Mr Newton on multiple occasions, and identifies this as a significant matter with respect to the Court's assessment of the applicant's risk in the requisite sense.

44 As I have already stated, the respondent concedes that the applicant is a low risk to the sexual safety of the community.

45 Having considered the available and considerable body of evidence and submissions on the issue of risk, I am satisfied that the applicant poses a low to very low risk to the sexual safety of the community.

Public interest - section 40(2)(b)

46 Counsel for the applicant contends that there is sufficient evidence before the Court to satisfy it that it is in the public interest to suspend the applicant's reporting obligations. This position is not challenged by the respondent.

47 Counsel identifies Mr Newton's finding that the applicant is a very low risk to the sexual safety of the community, which is conceded by the respondent, as a matter of significant weight in the context of public interest. This, according to counsel, is due to the extensive overlap between matters relating to community protection and the issue of risk. As such, it is the applicant's position that a majority of the submissions made with respect to risk are relevant to the public interest assessment.

48 Beyond matters of risk, the Court's attention is drawn to the applicant's marriage to MBC, who is and has been since the commencement of their relationship, aware of the relevant offending and the applicant's placement on the Sex Offenders Register. Counsel notes that the applicant and MBC have been in a long‑term marriage, and now share two children together. The applicant has cared for MBC throughout significant illnesses and both of her pregnancies, and she has also supported the applicant during various difficulties, many of which stem from the relevant offending. It is submitted that the long‑term nature of the applicant's marriage, and it's endurance despite the applicant's offending and the related consequences, is of great relevance to the Court's assessment of public interest in this matter.

49 As I have stated above, the Court has been provided with upwards of 40 character references from the applicant's family, friends, and business acquaintances. Counsel draws the Court's attention to the fact that each referee was aware of the applicant's index offending when writing the references, and contends that this demonstrates the applicant's genuine acknowledgement of the wrongful nature of the offending and evidences his rehabilitative progress over a considerable period of time. Further, the references identify the applicant as a loyal and devoted father and husband, a valuable member of the community, a hard‑working business owner, and well‑respected employer.

50 The applicant identifies the impact of the reporting conditions on him and his family as a matter of further relevance to the public interest assessment. Counsel notes that this impact is evidenced by the affidavits of various family members, as well as by the applicant himself, who indicates that the conditions affect his life to the extent that he is required to leave the family home when his children have friends to stay overnight. It is anticipated that the difficulties stemming from the reporting conditions will heighten as the applicant's children get older and start making their own social arrangements, which is starting to occur as the applicant's oldest child is now 13 years of age. There is fear, counsel notes, that the applicant's constant requirement to either leave or deny his children from having friends at the house will begin to jeopardise the relationship the applicant has with his children.

51 Counsel further submits that the reporting conditions to which the applicant is subject have impacted his family in the context of travel. The applicant has been prevented from visiting sick relatives overseas and is unable to see his uncle who also resides overseas, which circumstances have had a significant impact on the applicant.

52 In addition to affecting the applicant's participation in daily life, counsel makes reference to the practical impact of the reporting conditions, noting that compliance with the conditions absorbs an extensive amount of the applicant and MBC's time and energy. The applicant and MBC are also constantly on edge, partly due to the prospect of random visits from the authorities, and also because of the risk that the applicant's children, as they get older, will begin to question the applicant's behaviour as a result of the conditions.

53 With respect to the applicant's business, counsel submits that the reporting conditions have undermined the ability to develop his business to its fullest potential. The applicant cannot perform any interstate jobs, and if an employee or colleague is not available to assist, the applicant loses that business. Due to the restrictive nature of the reporting conditions, the applicant's business does not have a website, and relies on word of mouth which, as identified by counsel, is unusual in the current commercial environment.

54 Counsel highlights the success of the applicant's business in spite of the challenges stemming from the reporting conditions. The applicant operates his own business, and employs five people, some of which have worked for the applicant for six to seven years. It is noted that, in the transient type of industry as the one in which the applicant's business operates, the long‑term commitment of the applicant's employees evidences his quality as an employer.

55 Counsel contends that a matter of great significance with respect to the public interest assessment is the applicant's continuation of his visa and Australian citizenship being conferred on him in 2019. With respect to the visa, the applicant was at risk of failing the character test on the basis of the offending to which I have referred above, however, his visa was not cancelled following the exercise of the Minister's discretion. One of the key matters which the Minister must take into account when considering visa cancellation is the expectations of the community. As such, the Minister, despite awareness of the applicant's offending, placement on the Sex Offenders Register, and prospective failure of the character test, did not cancel the applicant's visa. Further, with respect to Australian citizenship, this involves a good character test, which the applicant met, and he was conferred citizenship in 2019.

56 Further matters which counsel identifies as relevant to the public interest assessment are the cessation of DHS involvement with the applicant's family and the conclusion by DHS there are no issues of concern posed by the applicant. Counsel refers to the applicant's human rights, including the right to privacy and freedom, both of which are impinged upon by the reporting conditions. It is noted that the applicant's case manager who has worked with him regularly for two to three years also takes a positive position with respect to the application.

57 Counsel draws the Court's attention to the matter of GH, in which it was observed that the reporting conditions undermined the applicant's rehabilitative progress by negatively affecting the applicant's family life and ability to interact fully with his children and their activities.[9] Counsel submits that this situation is analogous to the current matter.

58 Finally, counsel for the applicant reminds the Court that should the application be granted, the applicant will remain on the Sex Offenders Register, and will still be subject to other onerous conditions.

59 Whilst the respondent does not challenge the applicant's position with respect to public interest, it is submitted that the views of the complainant are relevant to public interest. The respondent notes that the offending has affected the complainant deeply, to the extent that she now resides interstate as she fears the applicant, and continues to undergo counselling. Despite this matter, the respondent makes clear that it does not traverse its concession with respect to public interest.

60 In all the circumstances, I accept the evidence that it is in the public interest to suspend the applicant's reporting obligations.

61 Accordingly, having then considered all the matters bearing on the issue of risk and public interest, for the reasons set out in the above discussion, I am satisfied that:

(a) The applicant, being the registerable offender, poses 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 registerable offender's reporting obligations.

62 For the reasons stated above, I am also satisfied that I should exercise this Court's discretion to suspend the applicant's reporting obligations under the SORA Act for the period of his life. An order to that effect will follow.

Orders suppression publication of identifying information

63 An application for a Suppression Order pursuant to sections 17 and 18 of the Open Courts Act 2013 (Vic) ('Open Courts Act') is made by the applicant to prohibit or restrict the disclosure by publication or otherwise of any identifying information with respect to the applicant, his family members, and any witnesses. This application is not opposed by the respondent.

64 The applicant seeks the suppression order on the following grounds per section 18(1) of the Open Courts Act:

(a) the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means; and,

(d) the order is necessary to avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding involving a sexual offence or a family violence offence.

65 Counsel for the applicant contends that granting a suppression order with respect to any identifying information will essentially maintain the status quo. The applicant served his sentence for the offending over 19 years ago, and should his identity be reported, he and his family will likely suffer embarrassment and undue stress.

66 Counsel submits that there is a significant stigma attached to those who have committed sexual offences against children. The applicant and his family live in a small country town and should members of the community become aware of the applicant's offending, there is concern that there will be negative repercussions for the applicant and his family members. Further, the applicant has a successful business which counsel contends may be placed at risk should the applicant's identity be published.

67 It is further submitted that publication of identifying information may negatively affect the applicant's children who are currently unaware of the offending, as well as the witnesses who made affidavits in support of the applicant who may be unduly embarrassed to be identified as being in support of the application.

68 Counsel makes reference to the High Court's comments in Hogan v Hinch, which highlights the importance of public interest, protection of the community, and prospects of rehabilitation as key matters for consideration in the context of an application for a suppression order.[10] The applicant submits that public interest has already been conceded by the respondent, and again observes that publication of the applicant's identify may undermine his rehabilitative progress.

69 In all the above circumstances, I am satisfied that a proceeding suppression order pursuant to sections 17 and 18 of the Open Courts Act should be made in this matter on the grounds identified above. Accordingly, I order that publication of any identifying information of the applicant, family members, or witnesses be prohibited, including:

70 In conformity with these orders, as well as using random letters RBC and MBC instead of names or initials, I have refrained from identifying the applicant's wife, his town and/or suburb of residence, the nature of his business, and some other matters.

[1] Sex Offenders Registration Act 2004 (Vic) s 39(1).

[2] Ibid s 39(2)(a).

[3] Ibid s 39(2)(b).

[4] Ibid s 39(2)(c).

[5] R v O'Keefe [2006] VCC 1314.

[6] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361.

[7] Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 12-13.

[8] Ibid s 17.

[9] Re GH [2024] VSC 216 [138].

[10] Hogan v Hinch (2011) 243 CLR 506, 536-7 [32].