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Criminal law: Sex Offenders Register – A guide for lawyers

Criminal law: Sex Offenders Register – A guide for lawyers

By Bill Doogue

Criminal Procedure Practice & Procedure 

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There are some basic concepts that lawyers should be familiar with when assisting clients on the sex offenders register.

Snapshot
  • The Sex Offender Registry is onerous in its nature and effect.
  • Pleading guilty to appropriate offences effects the period of time that your client is on the Register.
  • If your client needs to travel overseas, apply early for authorisation and in great detail.

There are two ways to become registered under the Sex Offenders Registration Act 2004 (SORA) – automatic registration and discretionary registration on application. It is vital to be aware of the possibility of registration early on in criminal proceedings as this will impact the advice you give to clients. 

Your client will only be automatically registered as a sex offender if they have been sentenced for a registrable offence.

A registrable offence is a Class 1 or Class 2 offence committed as an adult. Your client may also become a registered offender if the court makes a sex offender registration order that they comply with reporting obligations.1

This is available where an offender is found guilty of any offence, including an offence in a foreign jurisdiction.2

Class 1, 2, 3 and 4 offences

Offences are listed in Schedules 1 to 4 of the SORA. Generally speaking, Class 1 offences are penetrative offences against children, Class 2 offences are non-penetrative offences against children, Class 3 offences are penetrative offences against adults and Class 4 offences are non-penetrative offences against adults. 

A lawyer must examine the schedules closely to see if the charged offence falls within Class 1, 2, 3 or 4, and should also be aware that the gravity of these offences varies greatly. For instance, a client will automatically become a registered offender if they possess a topless photo of their 17-year-old girlfriend (Class 2 offence) or if they have a consensual sexual relationship with a 17-year-old employee under their supervision (Class 1 offence). 

Making discretionary orders

The prosecution may apply for a sex offender registration order within 45 days after a sentence is imposed.3 Section 11 of the SORA sets out the test the court must apply in determining whether to grant the application. In Bowden v The Queen [2013] VSCA 382 at [30], the Court of Appeal explained that this test is a two-step process:

  • the court has to be satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more persons
  • the court must consider whether, in the circumstances, it is appropriate to make the order. 

This two-stage process was affirmed in DPP v Cartwright [2015] VSCA 11 at [26]-[32]. 

In assessing whether your client poses a risk under s11(3) of the SORA, the court must be satisfied beyond reasonable doubt that they pose a “real or appreciable risk”, not an unreal or fanciful risk.4 It is not necessary that the court be able to identify a risk to a particular person or a particular class of people.5

Length of reporting periods

All registrable offenders are subject to reporting obligations for a period. This period differs according to the number of offences and class of offence. It is important to note that two or more offences committed within a 24-hour period are considered as arising from the “same incident” and are treated as a single offence.6 A lawyer should negotiate “rolling-up” charges if possible, as this may significantly reduce an offender’s reporting period.

If your client has been found guilty of a single Class 2 offence, they will need to comply with reporting obligations for eight years. If found guilty of a Class 1 offence, or two Class 2 offences, the period is 15 years. If found guilty of two or more Class 1 offences, one Class 1 offence and one Class 2 offence, or three or more Class 2 offences, your client will have to report for the remainder of their life.7

These reporting periods are reduced by half if your client was a child at the time the registrable offences were committed.8  A child has to report for seven and a half years if the offences would normally mandate a reporting period for life.

Reporting obligations

If your client becomes a registrable offender, they will be subject to a significant number of reporting obligations. They must report their personal details to the Chief Commissioner of Police within seven days of being sentenced for a registrable offence, or within seven days after they cease to be in government custody.9

The reportable personal details are outlined in s14 of the SORA. 

Your client will need to report details including their name, date of birth, address, phone numbers, internet usernames, cars, tattoos and employment details. 

They will also need to report all children they have contact with.10 It is important to go through reporting obligations with your client as they are very onerous and complex. 

After this initial report, your client will be required to report any changes in their personal details within seven days.11 If they change their address, or have contact with a child, they need to report this change within one day.12 If they fail to report within the requisite time frames, they will be prosecuted under s46 of the SORA and will be liable to a maximum sentence of two or five years’ imprisonment, depending on what they failed to report. 

Police tend to charge offenders for minor breaches. They will likely be charged even if they forget to report something minor (like a small tattoo) or they report just outside the time frame (for instance, in eight days instead of seven days). For this reason, we advise our clients to overshare information. We also advise them to report via email, not phone, as this will leave a paper trail. Police are obliged to acknowledge receipt of every report.

Your client will also be required to attend annual interviews. These are daunting experiences, as offenders will be asked to confirm all their personal details, and will be charged if they failed to report changes throughout the year. Lawyers should advise their clients to see them before their annual interview, so they can be told what to expect. They are also permitted to bring a support person, who can be a lawyer. 

Exemption applications

Once your client has been placed on the register, they are technically a registrable offender for the rest of their life. The only way to be removed (aside from successfully appealing their finding of guilt) is to apply for an exemption order. 

Your client may only apply to a court for an exemption order if at any time during the commission of the offence they were 18 or 19 years of age, and at all times during the offence they were not more than 19 years of age.13 They cannot apply if the offending involved more than one victim. The court can only grant the exemption order if it is satisfied that the victim was of or over the age of 14 years at the time of the offending, and the offender poses low risk to the sexual safety of the community.14

Your client must apply for an exemption order within six months after first receiving notice of their reporting obligations, or, if the offending occurred before March 2018, within two years of first receiving notice (or before 1 March 2020, whichever comes later). 

Successful exemption order applications are life changing for clients. Preparation on behalf of your clients includes collecting materials such as the original brief of evidence, psychological reports, character references and sentencing remarks. 

Suspension applications

If your client does not meet the criteria for an exemption order, they may consider applying for suspension of their reporting obligations. A registrable offender required to report for the remainder of his or her life may, after 15 years of reporting, apply to the Supreme Court.15 The Supreme Court must not make this order unless satisfied that the offender poses a low risk and it is in the public interest to suspend the person’s reporting obligations.16

The Chief Commissioner of Police has the power to apply to a court to suspend an offender’s reporting obligations.17 The Chief Commissioner can also suspend an offender’s reporting obligations for up to five years.18 Again, suspension cannot occur unless the offender is assessed as low risk.

Suspension has many benefits, including freedom from onerous reporting obligations and the ability to freely travel overseas. A client is very unlikely to be able to successfully apply for suspension if they have any convictions or findings of guilt for failing to meet reporting requirements, so it is very important to defend failure to report charges, no matter how minor they may seem.

When preparing suspension applications you may include a recommendation from the police or other relevant documentation. An application that has been refused, can be appealed including to the Supreme Court on judicial review. 

Travel applications

Division 271A.1 of the Criminal Code Act 1995 (Cth) makes it a criminal offence for an Australian Citizen with reporting obligations in connection to any state or territory sex offender register to leave Australia without the permission of a “competent authority” (ie, the Chief Commissioner of Police). This offence is punishable by five years’ imprisonment. Registered offenders can apply for permission to travel overseas but they are usually refused, especially if they don’t have a compelling reason, or they want to go to a country where the law enforcement framework is considered weaker than Australia. 

When obtaining permission to travel for your client on the register, lawyers will usually incorporate the reasons for the proposed trip, any previous overseas travel, character references from those accompanying the client during the travel, and any ties to the Australian jurisdiction, as well as a discussion of the purpose of the relevant legislation.

Mental health of clients on the register

The Sex Offender Registration Act 2004 purports to protect the community by reducing the likelihood that sex offenders will reoffend and facilitating the investigation of offences they may commit.19 There is no evidence that the register achieves this aim, but it certainly achieves a different aim: wreaking havoc on the mental health of registered offenders.

As a registered offender, your client will most likely experience debilitating psychological illnesses due to the shame and stigma associated with being on the register. They will be living in constant fear of being charged for a minor breach or being subjected to violent vigilantism, and will probably isolate themselves from their friends and family. As their lawyer, the best thing you can do for your client is to listen to their story and recognise that not all registered offenders are the same. 


Bill Doogue is a director of Doogue + George Lawyers and an LIV accredited specialist in criminal law. He is a preeminent lawyer in criminal law in Doyles Guide 2019

1. Sex Offenders Registration Act 2004, s6.
2. Note 1 above.
3. Note 1 above, s11(6).
4. Bowden v The Queen [2013] VSCA 382 [33].
5. Note 1 above, s11(4).
6. Note 1 above, ss5(1) and 34(3).
7. Note 1 above, s34.
8. Note 1 above, s35.
9. Note 1 above, s12.
10. Note 1 above, s4A.
11. Note 1 above, s17.
12. Note 12 above.
13. Note 1 above, s11A(1).
14. Note 1 above, s11B(1).
15. Note 1 above, s39.
16. Note 1 above, s40(2).
17. Note 1 above, s39A.
18. Note 1 above, s45A.
19. Note 1 above, s1.

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