Certain offences attract mandatory Sex Offender Registration pursuant to section 11 Sex Offenders Registration Act 2004 (Vic).
- If offences are listed in the Class 1 or Class 2 tables, it is mandatory.
- If offences are not listed in the Class 1 or Class 2 tables, it is not mandatory.
- If the offence is listed as a Class 3 or Class 4 offence which is at the back of the Act, a court may order that a person comply with the reporting obligations of the Act, even though it is not mandatory.
- If a court finds a person guilty of an offence committed as a child (including a Class 1, Class 2, Class 3 or Class 4 offence), it may order that the person comply with the reporting obligations of the Act.
‘Child’ means any person who is under the age of 18 years (section 3 of the Act).
Opposing an Application Under the Sex Offenders Registration Act to be Recorded as a Registrable Offender
If the offence is not a mandatory registrable offence, the Prosecution can make an application for a court to exercise the court’s discretion under section 11 of the Act and order that the accused be recorded as a Registrable Offender.
The court must take into account any matter the court considers appropriate, but must be satisfied beyond reasonable doubt that the accused poses a risk to the sexual safety of one or more persons of the community.
Courts have held that the risk must be assessed to be ‘real’.
The court must be satisfied beyond reasonable doubt that the offender poses a ‘real’ risk.
If the risk posed by the offender is unreal or fanciful, the court must not make a Registration Order (Bowden v The Queen (2013) Court of Appeal; See also the decision of the Court of Appeal in Sayer (2018)).
The enquiry whether to make a Registration Order involves a two-stage process:
1. The first question is whether the court is satisfied beyond reasonable doubt that the person poses a risk to the sexual safety, as defined:
(a) For the court to be so satisfied the risk must be real, rather than fanciful.
(b) The evaluation of risk is directed to the risk upon the offender’s release into the community assessed by what is presently known.
2. The second question, which only arises if the court is satisfied that the requisite risk exists, is whether the order should be made in all the relevant circumstances. This second stage involves a balancing of the identified risk having regard to the purposes of the Act which imposes restrictions on the offender’s right to enjoy freedom and autonomy of action. The balancing exercise involves considering the magnitude and nature of the risk, including the degree of likelihood of the risk eventuating and the gravity of the harm to be balanced against the serious consequences for the offender.
The Court of Appeal in the matter of Sayer, accepted that the categorisation of risk by psychologists was not determinative of the judicial determination of the question of risk.
If you have any problems in this regard contact Brendan Wilkinson on 0438 670 198.