DH (a pseudonym) v Chief Commissioner of Police
[2025] VSC 380
•27 June 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2025 0015
| DH (a pseudonym) | Applicant |
| v | |
| CHIEF COMMISSIONER OF POLICE | Respondent |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 June 2025 |
DATE OF JUDGMENT: | 27 June 2025 |
CASE MAY BE CITED AS: | DH (a pseudonym) v Chief Commissioner of Police |
MEDIUM NEUTRAL CITATION: | [2025] VSC 380 |
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CRIMINAL LAW — Application under Sex Offender’s Registration Act 2004 to suspend lifelong reporting obligations — Applicant convicted in 2007 of two charges of sexual penetration of child under 16 and placed on a community based order — No prior convictions — No subsequent convictions — Diligent compliance with reporting obligations over 18 year period — Low risk of reoffending — Whether in public interest to suspend reporting obligations — Application granted — Sex Offenders Registration Act 2004 (Vic) ss 39 & 40; Re GH [2024] VSC 216.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Murphy | Dribbin & Brown Criminal Lawyers |
| For the Respondent | Ms E Millar | Victoria Police |
HER HONOUR:
Introduction
The applicant, DH, is a registrable offender pursuant to the Sex Offenders Registration Act 2004 (Vic) (‘SORA’). He will remain on the register of sex offenders (‘Register’) for the remainder of his life. This is not an application to remove DH from the Register, nor in any way alter or restrict the information contained on the Register. This is an application by DH to suspend his reporting requirements under the SORA.
Such an application can only be made if:
(a) a period of 15 years has passed since the registrable offender was sentenced or released from custody, whichever is later;
(b) the registrable offender did not become the subject of a lifelong reporting period under a corresponding Act in a jurisdiction other than Victoria (including a jurisdiction outside Australia); and
(c) the registrable offender is not on parole in respect of a registrable offence.[1]
[1]SORA s 39.
These criteria are all satisfied. DH received a non‑custodial sentence and 18 years have passed since he was sentenced. He has never been the subject of a lifelong reporting period in a jurisdiction other than Victoria. DH is not on parole for a registrable offence.
For the reasons that follow, the application is granted.
The offending
In 2006, DH was 23 years old and living in country Victoria. He met the victim in January 2006 via an internet chat site called ‘Bebo’. DH knew the victim was 13 years old. DH and the victim liaised frequently and, according to the police summary, ‘formed an intimate relationship’.[2] They engaged in sexual intercourse regularly between 26 January and 14 February 2006. This would always occur at DH’s house, on his bed in his bedroom. DH always wore a condom. On Valentine’s Day, DH gave the victim gift packs including love hearts, teddy bears, silver handcuffs and artificial flowers. She gave him a teddy bear. The relationship occurred without the victim’s parents knowing, and DH helped ensure the relationship was kept secret. The relationship was discovered after the victim’s stepfather discovered text message contact between the victim and DH. The matter was reported to police.
[2]The summary of prosecution opening for plea could not be located but the police summary was provided.
DH was first interviewed about the offending in March 2006. He declined to comment. On 20 May 2006, DH attempted to persuade the victim’s mother to withdraw the charges. In the course of doing so, DH made admissions to the offending. He said he loved the victim and did not hurt her. As a result of this conduct, DH was later charged with attempting to pervert the course of justice.
On 3 June 2007, DH was arrested. He made a ‘no comment’ record of interview.
DH subsequently pleaded guilty in the County Court to two representative counts of sexual penetration of a child under 16 and one count of attempting to pervert the course of justice. In August 2007, he was convicted and released on a community based order with conditions. The conditions included undergoing a referral to the Sex Offenders Program and participating in such a program if directed. The sentencing judge stated that a key reason he was not imposing a custodial sentence was because he was ‘not convinced’ that this was a case where an adult had manipulated a minor for the sole purpose of sex. There were ‘features of a relationship’, albeit one that was forbidden. He described the conduct constituting the attempt to pervert the course of justice charge as ‘clumsy’ and said it was ‘not the worst case’ of that offence.
As a consequence of the two convictions for sexual penetration of a child under 16, DH was placed on the Register for life and subject to the reporting obligations for life. Under the SORA, such an order is automatic upon conviction.[3] The sentencing judge makes no order, although the sentencing court facilitates the signing of an acknowledgement form on the day of sentence, whereby the offender acknowledges he will be placed on the Register and required to comply with reporting obligations.
[3]See ss 3, 6, 7 and 34(1)(c)(i) of the SORA.
The applicant
DH is now aged 43. He completed his community based order. He has no other criminal convictions or findings of guilt. He has complied with the SORA reporting requirements for almost 18 years.
DH grew up interstate. His parents are separated and he maintains a relationship with them both. His parents did not abuse alcohol or drugs, nor was he exposed to any form of child abuse or sexual abuse. He was not exposed to any family violence.
Prior to the offending, DH had been involved in two relationships. There is no suggestion that either relationship was inappropriate.
Following the offending, in approximately 2010, DH met and began a relationship with LH. They have two children together, aged 7 and 5. LH attended the hearing with DH. Very recently, DH and LH amicably separated as partners, however they remain a loving and supportive family unit. They continue to live together and are committed to co‑parenting their children.
DH has been employed in various roles including retail, customer service and aquaculture. In 2016, DH suffered a workplace injury. He underwent back surgery involving fusion of multiple discs in his back such that he cannot comfortably remain seated for long periods. Most daily activities trigger pain, including playing with his children. DH does not drink alcohol, smoke tobacco or use illicit drugs. He avoids pain medication, and prefers to manage his pain through a healthy diet, a healthy lifestyle, natural supplements and meditation. He attends physiotherapy twice a week.
LH confirmed that DH had always been honest with her about his offending.[4] He is remorseful and has made every effort to turn his life around. LH is from a strong, close family and has a large network of female friends. She describes DH as a kind, loving and active father. She and DH are passionate about child welfare and the importance of teaching their children about consent and body autonomy. LH’s number one priority is her children. DH has always complied with his reporting obligations. This has placed a great deal of stress on the family, as DH does not attend family functions where children will be present as he has to report child contact. DH has no issues doing so, however it triggers a notification to ‘DHS’ for that child and their family, which can be a very stressful process.[5] To prevent friends and family being subject to that stressful process, DH chooses instead to miss out on family functions such as children’s birthday parties and sporting events.
[4]LH provided two letters of support, the first dated 1 March 2023 and the second dated 27 May 2025. DH’s brother-in-law also provided a letter of support. The content of those letters was not challenged by the respondent.
[5]The DHS became the DHHS and is now the DFFH, but continues to be commonly referred to as DHS.
LH confirmed that she and DH have recently separated as partners but remain living together, supportive of each other and committed to co‑parenting their children. She maintains her view that DH poses no risk to the community. She attended appointments with DH when he consulted Dr Jan Heath and Pamela Matthews. She stated that DH was honest and open during those appointments. In her view, DH’s reporting obligations are a significant barrier to him living a normal, rehabilitated life. She feels like a sole parent, and this has contributed to the breakdown in their romantic relationship. The children are disappointed and confused by DH’s inability to freely and spontaneously attend school events and family events.
Evidence of risk
On 4 October 2022, DH attended upon Dr Jan Heath, forensic psychologist, who conducted a current risk assessment using actuarial tools and clinical judgment. DH was considered low risk of sexual reoffending.
Ms Pamela Matthews, forensic psychologist, assessed DH on 31 January 2023 and again on 3 March 2025. Ms Matthews assessed DH’s risk of sexually re‑offending as lower than the naturally occurring rate in the community. His sexual risk to his children and others in the community is no more than that of any other male in the community, including men with no sex offence histories.
In cross‑examination, Ms Matthews was asked how she was able to conclude that DH had developed insight into the reasons for his offending. Ms Matthews said DH understands that it was wrong and he was responsible for what occurred. At the time, he was a very young man and, unfortunately, the period of adolescence extends into the mid‑20s, as the frontal lobe is still developing. He was immature at the time of the offending, but, nonetheless, he was 10 years older than the victim and there was a complete power imbalance between them as a result of this age difference.
It was suggested DH had shown regret but not remorse. Ms Matthews disagreed, and said DH feels guilty, embarrassed and wants to take responsibility for the offending. This is more than ‘regret’. Ms Matthews said most people find it difficult to talk about what occurred nearly 20 years ago, and the fact DH did not expressly say he was sorry does not mean he is not sorry for what occurred.
Ms Matthews said DH does not meet the definition of paedophilia or hebephilia. Based on what occurred at the time and the passage of time since, she can say with confidence that the offending was a ‘one‑off’ incident. In saying that, Ms Matthews was well aware that the offending involved sexual acts including penetration that occurred over a three‑week period.
The respondent did not call any expert evidence as to DH’s level of risk.
Statutory provisions and legal principles
The key provision here is s 40 of the SORA which states:
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.
(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 under section 41.
An analysis of the relevant provisions of the SORA, including s 40, was undertaken by Croucher J in GH v Chief Commissioner of Police.[6] His Honour’s analysis was helpfully summarised by Kaye JA in Re AJ (a pseudonym).[7] I generally agree with and adopt this reasoning.
[6][2024] VSC 216 (‘Re GH’).
[7][2024] VSC 769, [105]–[110] (‘Re AJ’).
The applicant bears the onus of establishing both matters in s 40(2) on the balance of probabilities.[8] The Court must separately consider each of the matters found in s 40(2)(a) and (b), and must be satisfied of both. If so satisfied, the Court has a discretion to determine whether to suspend the reporting obligations. In exercising its discretion, the Court must take into account the matters listed in s 40(3). Findings about those matters will be relevant to the question of risk for the purposes of s 40(2)(a); the question of whether it is in the public interest to suspend the reporting obligations pursuant to s 40(2)(b); and the exercise of the discretion more generally.[9]
[8]Ibid [118].
[9]GT v Chief Commissioner of Police [2024] VSC 824 (Elliot J) (‘GT’), citing Re GH [83] (Croucher J).
Applicant’s submissions
The applicant submitted DH poses a low risk to the sexual safety of members of the community, including children. This is not disputed by the respondent and the real question here is whether it is in the public interest to suspend DH’s reporting obligations.
It was submitted:
(a) The applicant has diligently complied with his reporting obligations for almost 20 years.
(b) The reporting obligations are onerous; they are negatively impacting DH’s relationship with LH, and limiting his ability to positively participate in his children’s lives.
(c) The applicant pleaded guilty to the charges, which evidences remorse. He has also expressed remorse to LH and his brother‑in‑law. DH told Ms Matthews that he felt guilty, embarrassed, and wanted to take responsibility for what he had done.
(d) The applicant successfully completed his community based order.
(e) The fact that the applicant is a low risk of sexual reoffending (or any reoffending) is relevant when assessing the public interest.
(f) The applicant will remain on the Register, which provides a level of restriction and oversight, and weighs in favour of suspending his reporting obligations.
(g) The reporting obligations impact the applicant’s rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) and, if the obligations continue after a person is able to demonstrate they pose no risk (or low risk), the obligations become arbitrary in their interference with the person’s Charter rights.
(h) The offending was serious, but it is not the most serious example of this type of offending. DH was a young, immature man. The age difference between DH and the victim was significant but not vast.[10]
(i) DH is 43 years old. He has no criminal history other than the index offending.
[10]The applicant drew a contrast with the applicant in GT, where the offending involved the applicant, then in his mid‑thirties, sexually penetrating a 15 year old foster child who was in his care. The applicant’s reporting obligations were suspended.
In replying to the respondent’s submissions, the applicant submitted that Charter rights must have some relevance when considering the public interest. Dealing with Donohue v Westin,[11] the applicant noted that the decision concerned the application of s 38 of the Charter and the requirement of a public authority, acting administratively, to give proper consideration to Charter rights. Here, the Court is not acting administratively and the concept of ‘public interest’ requires a different analysis. The Charter rights are analogous to common law rights, and even in a ‘non Charter’ jurisdiction, such rights would be a permissible consideration when considering the ‘public interest’.
[11][2022] VSC 37 (‘Donohue v Westin’).
Respondent’s submissions
The respondent accepts DH is a low risk of sexual reoffending. However, the respondent submitted risk alone is not determinative of applications such as these, otherwise s 40(2)(b) and the factors found in s 40(3) would have no work to do. When considering s 40(2)(b) and the exercise of the discretion more generally, there are insufficient factors which the applicant can point to in support of suspension being in the public interest.
It is conceded the applicant has never breached his reporting obligations and in that respect he has been ‘exemplary’. The respondent also conceded DH would remain on the Register, and even if his reporting obligations are lifted, he would be restricted from working in child‑related employment and still subject to a level of oversight.
The respondent submitted that DH either misunderstands or is being ‘over‑cautious’ in his approach to child contact, and the reporting obligations are not as onerous as he believes. Child contact is permitted, and it is DH’s choice to avoid child contact.
The suspension provisions in the SORA do not engage Charter considerations because the existing limitations were lawfully imposed. In support of this submission, the respondent relied on what was said by Niall JA in Donohue v Westin. In that case, his Honour was considering the application of s 38 of the Charter and the decision of a public authority not to grant emergency management days (‘EMDs’) to a sentenced prisoner. The prisoner was on parole at the time. His Honour stated:
[R]egardless of whether the decision is made when the prisoner is in gaol or on parole, or the form in which the EMDs are granted, the real question is this: is a decision maker required to have regard to human rights in deciding whether or not to grant an EMD in circumstances where that decision may ameliorate a burden lawfully imposed by the sentence of imprisonment, but will not itself increase that burden? In other words, does s 38 of the Charter require a decision maker to give proper consideration to the rights recognised in the Charter in making a decision that does not itself limit rights? In my view, at least in respect of the rights relied on by the application: liberty, freedom of movement, and freedom of religion, the answer is ‘No’.[12]
[12]Ibid [42].
The respondent submitted that the Charter is only concerned with when rights may be limited, and once rights are lawfully limited, the Charter has no role to play on the question of whether rights should be restored.
The respondent submitted that the offending would fairly be described as in the ‘mid‑range’ of seriousness, and the offence now carries a standard sentence of six years’ imprisonment. There is a presumption of harm in relation to children who are victims of sexual assault, and that presumption is unaffected by a child’s so‑called ‘consent’ to the sexual acts. The offending here has had a profound impact on the victim, and this goes to both the public interest consideration, and to whether the Court should exercise its discretion in favour of the applicant.
The applicant has expressed regret, not remorse. Further, in the absence of any evidence from the applicant himself, the Court should give little weight to any expressions of insight or remorse made by DH. DH’s reasons for wanting the reporting obligations suspended are all focussed on his own interests, and there is little explanation as to how they relate to the public interest.
Consideration
The uncontested expert evidence is that DH’s risk of sexual offending is low. I am satisfied of the matter set out in s 40(2)(a) of the SORA. The real question on this application is whether it is in the public interest to suspend DH’s reporting obligations.
The phrase ‘public interest’ has a wide and protean meaning.[13] Black’s Law Dictionary defines it as:
1. The general welfare of a populace considered as warranting recognition and protection.
2. Something in which the public as a whole has a stake; esp., an interest that justifies government regulation.[14]
This definition underscores the importance of considering the impact any suspension of reporting obligations will have on the broader population.
[13]AB v Conduct Division of the Judicial Commission of New South Wales [2018] NSWCA 264, [54] (Basten, Meagher and Gleeson JJA). See also O’Sullivan v Farrer (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320, 329 [13] (French CJ, Gummow and Bell JJ).
[14]Black’s Law Dictionary (10th ed, 2014) ‘public interest’.
There is a clear public interest in reducing the chances of a registrable offender re‑offending, and making it easier for authorities to prevent offences occurring (or at least detect them at an early stage). On the other hand, there is also a public interest in the limited resources of police and other authorities not being consumed by monitoring rehabilitated offenders who do not present any real risk of further offending.
DH’s life is fairly described as peaceful, positive and pro‑social. In the circumstances of this application, I accept the evidence of Ms Matthews, LH, and DH’s brother‑in‑law, including what has been said to them by DH. I note that the respondent took no issue with the material provided by LH and DH’s brother‑in‑law. When considering DH’s lifestyle, the following matters are of particular relevance:
(a) DH has the support of his long‑term partner. They are currently separated but remain living under the one roof. The household is a loving, stable and supportive family environment.
(b) DH is a loving, gentle and caring father who is actively involved in his children’s lives.
(c) DH and LH are conscious of their children’s body autonomy and teach their children about the importance of consent in an age‑appropriate manner.
(d) Despite his chronic back pain, DH has chosen to eschew serious pain medication in favour of a healthy diet, healthy lifestyle, meditation and regular physiotherapy. He does not drink alcohol or use illicit substances.
The registrable offences are not the most serious example of the offence. The age difference between DH and the victim was significant, although the victim was not under DH’s care, supervision or authority. While I accept that the type and length of sentences imposed for this offending have increased since 2006, nonetheless, the fact that a community based order was imposed indicates that the seriousness of the offending fell towards the mid‑lower end. Even at the time, more severe penalties could have been imposed that still fell short of immediate imprisonment, including an intensive corrections order or a wholly suspended sentence.
The offences were committed over 19 years ago. During this lengthy period of time, DH has successfully demonstrated his ability to remain offence‑free. He has diligently complied with his reporting obligations.
DH is considerably older and more mature than he was when he committed these offences. He has no criminal record beyond the index offending.
The reporting obligations impact DH’s ability to parent his children and participate fully in family life. There is a public interest in allowing fathers to participate in their children’s lives and provide strong, positive role models. DH cannot be fairly criticised for taking a cautious approach to his reporting obligations. For someone with two young children, the SORA obligations to report child contact are onerous and not necessarily entirely clear.[15] Reporting child contact impacts the lives of the children who DH comes into contact with and, in turn, their families. It is not unreasonable for DH to seek to avoid bringing this stress and pressure into the lives of people he knows.
[15]For example, what is meant by ‘personal relationship’ in s 4A(e) of the SORA? If the registrable offender is one of two adults in the house, both keeping an eye on their own children and a visiting child, is the registrable offender ‘caring for’ or ‘supervising’ the visiting child within the meaning of s 4A(c) of the SORA?
There is a presumption of harm to victims of these type of offences, and I accept the victim has suffered harm. However, given she was contacted by police in breach of the SORA, I do not consider it appropriate to say anything more about what she conveyed to police.[16]
[16]The respondent advised the Court that the victim in this case was contacted by police as a result of this application, and made aware of the application. The respondent conceded this was in breach of the SORA and should not have occurred.
DH has taken steps to positively rehabilitate himself. Since completing his community based order, he has gone on to live a productive life. He has been gainfully employed, travelled overseas, had a successful long‑term relationship and fathered two children. There is a public interest in encouraging the rehabilitation of offenders, and recognition of rehabilitation is one way this may be achieved.
Section 40(3)(f) of the SORA is expressed in very broad terms. It requires a court to take into account ‘any other matter that the court considers appropriate’. On the question of the application of the Charter, I agree with the view expressed by Croucher J in GH; that is, the Charter rights are matters capable of informing the public interest and the discretion more generally.[17] Other judges, in deciding such applications, have considered Charter rights to be relevant in a general sense.[18] In my view, the respondent’s submission that the Charter has no application here cannot be accepted. The respondent’s reliance on Donohue v Westin does not assist, as that decision concerned s 38 of the Charter which is not engaged here. The Court is making a judicial not an administrative decision. For completeness, I note that in this matter, the answer to the question of whether and how the Charter applies would not alter my ultimate decision. The result would be the same whether Charter rights are considered or not. In those circumstances, it is not necessary to address the Charter arguments any further.
[17]Re GH [88].
[18]See, eg, GT; WJH v Chief Commissioner of Police [2024] VSC 818, [22] (Champion J); RBC v Chief Commissioner of Police [2025] VSC 10, [32]–[33] (Champion J); Walton v Chief Commissioner of Police [2025] VSC 231, [20](c) (Gorton J). But cf Re AJ, [142]–[147] per Kaye JA.
Conclusion
The application is granted. DH’s reporting obligations are suspended for the remainder of his life.
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