Director of Public Prosecutions v Bell

[2018] VCC 1804

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01269

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON BELL

---

JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2018
DATE OF DECSION:	13 September 2018
CASE MAY BE CITED AS:	DPP v Bell
MEDIUM NEUTRAL CITATION:	[2018] VCC 1804

REASONS FOR DECISION
---

Subject:
Catchwords: Exemption application – Sex offender registration
Legislation Cited: Sex Offenders Registration Act 2004 (Vic)
Cases Cited:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr E. Ritli	Office of Public Prosecutions
For the Accused	Ms J. Wilkinson	Jessica Wilkinson

1On 1 November 2017, after he had pleaded guilty, I sentenced Mr Bell to a two year community correction order on one charge of sexual penetration of a child under 16.  The offence occurred between 13 February 2017 and 16 March 2017, when Mr Bell was 18 years of age.  The victim was 14 at the time.

2Under the then mandatory provisions of the Sex Offenders Registration Act 2004 (Vic), Mr Bell was required to be placed on the Sex Offender Register for a period of 15 years.

3The Sex Offenders Registration Act has now been amended, and permits a person who at the time of the commission of an offence was 18 or 19 years of age, and who has been found guilty of what is called a specified registrable offence against a single victim, to apply for a registration exemption order. This applicant and this application fall within that category.  The offence to which Mr Bell pleaded guilty is a specified offence.

4It is a necessary precondition to consideration of whether to make a declaration that the applicant is not a registrable offender in respect of a specified offence to be satisfied on the balance of probabilities that the victim was of or over the age of 14 years.  In this case, the victim was 14 years of age, thus satisfying this requirement.

5It is also necessary to be satisfied on the balance of probabilities that, but for the specified offence, the applicant would not be a registrable offender.  This requirement has also been satisfied.  At the time of sentencing Mr Bell, he had not been convicted of any other registrable offences, and he has not been convicted of any other registrable offences since sentencing by me.

6By s.11C, an application for a registration exemption order must be made no later than six months after the day on which the applicant is first given notice of his reporting obligations.  However, by virtue of the operation of the transitional provisions of the Sex Offenders Registration Amendment (Miscellaneous) Act 2017, a person who was a registrable offender immediately before 1 March 2018, the day the amending provisions came into force, may make application within two years of the amending provisions coming into effect, or two years after they are first given notice of their reporting obligations.

7I am satisfied that this application has been made within the time specified in the transitional provisions in s.73H.

8The test for determining whether a declaration that an applicant is not a registrable offender in respect of a specified offence, if I use the terminology in s.11B, or if I use the terminology in s.11A, an application for a registration exemption order, is set out in s.11B(1)(b).

9Relevantly for this application, that requires the court to be satisfied on the balance of probabilities that the applicant poses no risk or a low risk to the sexual safety of one or more persons, or of the community, having regard to the seriousness of the specified offences; the ages of the applicant and the victim at the time of the commission of the offences; the number and nature of the specified offences, including whether they arose out of the same set of circumstances; and any other matter the court considers relevant.

10By s.11(b)(4) it is not necessary that the court is able to identify a risk posed by the registrable offender to the sexual safety of a particular person or class of person. 

11By s.11(b)(5) I must take into account any submission made by the Chief Commissioner who by s.11F is a party to an application under s.11A and who may make any submission to the court in respect of the application. 

12A risk assessment has been conducted at the behest of the Chief Commissioner, and as a result of that, I have been advised that the Chief Commissioner does not oppose the making of the order. In coming to that conclusion, the Chief Commissioner relies upon and accepts the assessment in the risk assessment or risk summary provided to the court.

13The other matters that are required to be considered by s.11B(1)(b) namely whether the victim was under the care, supervision or authority of the applicant and whether the victim had a cognitive impairment or mental illness at the time of the specified offence do not arise here.

14Section 11G makes admissible in the hearing of an application under s.11A the transcript of the record of the evidence of the victim of the specified offence and their victim impact statement. 

15The transcript of the evidence of the victim and her victim impact statement have not been separately tendered, but the parties have provided, as was appropriate, a copy of my reasons for sentence. The circumstance of the offence and the impact on her, I consider, are well and adequately set out there and I have taken them into account.

16A progress report from Community Corrections has been sought in respect of Mr Bell's progress under the community correction order on which I placed him in November 2017.

17The order had, in addition to the core conditions, a requirement to perform 300 hours of unpaid community work over a period of two years, to be under supervision for a period of two years and to participate in programs or courses that addressed factors relating to the offending as directed by the regional manager and specifically, a sex offender treatment program.

18The progress report that has been provided is dated 5 September 2018. It notes that Mr Bell has demonstrated satisfactory compliance with the supervision condition.  He has accrued one unacceptable absence from the supervision component of the order.  At the moment he is subject to a monthly supervision regime and the author notes that when in attendance he was punctual, polite and forthcoming with the service. 

19It was, in my view, an important factor in the overall sentence imposed on
Mr Bell, that he participate in a sex offender treatment program as part of the community correction order. 

20I was surprised to find that Mr Bell has not yet commenced a sex offender treatment program although he has been assessed and found to be suitable to participate in the Better Lives program, a six-month sex offender treatment program run by Corrections. 

21That program has been assessed as the appropriate one for him because his risk of sexual recidivism using the Static 99 risk assessment tool has been assessed as moderate to low. 

22However I am told, or the report advises that Mr Bell has been placed on the wait list for the program and is yet to commence it.  Ms Wilkinson has deposed and confirmed that the reason that Mr Bell has not commenced the program is not because of any delay on his part, but because it is at the moment it would appear a policy of Corrections to require a person on a community correction order to undertake the Better Lives program in the last 12 months of a community correction order.

23Given that under the Sex Offenders Registration Act exemption regime a person must apply for exemption within six months of the imposition of the reporting conditions, it seems to me to be an absurd anomaly not to facilitate participation in a sex offender treatment program before the time for application for exemption expires. 

24It is clearly a relevant factor to determining an application for an exemption order, if a person has been ordered to participate in such a program, to consider whether they have made themselves amenable to that, whether they have participated or commenced participation and whether they have made satisfactory progress. I hope that Corrections and the Chief Commissioner can have some sensible and meaningful discussions about facilitating the earlier enrolment of a person who is eligible to apply for exemption under the Sex Offenders Registration Act so that a court, in considering an exemption application can be properly and better informed as to their willingness to participate in a sex offender treatment program and, if they show themselves willing, their progress in that program.

25Coming back then to the progress report from Corrections, as of the date of the report, Mr Bell has completed 81 hours and therefore has 219 hours outstanding of his unpaid community work provision.  He has incurred four unacceptable absences in respect of the unpaid community work program. I am told, and there is nothing to challenge this, that Mr Bell did not properly understand that his unpaid community work and supervision commitments continued over the Christmas break. The four unacceptable absences from his work component occurred during that time.  He has since though, it would appear, appropriately re-engaged with Corrections and maintained his participation in his unpaid community work contract on a fortnightly basis since then. 

26I am satisfied therefore that his progress on the CCO is, overall, satisfactory. That there is nothing in the report that indicates that he is not progressing satisfactorily and not cooperating appropriately. There is nothing reported that impacts adversely on this application for exemption.

27When I sentenced Mr Bell I said in paragraph 43 of my reasons:

"I am required, as I have mentioned, without having any discretion in the matter, to direct that you be placed on the Sex Offender Register for the mandatory period of 15 years.  I should note that, were Parliament to have given me a discretion in your case, I would have considered that it was not necessary in order to achieve the ends of protection of the community to make an order placing you on the Sex Offender Register." 

28In paragraph 44, I further stated that,

"I also consider that, in any event, the 15 years is just inappropriately excessive for somebody of your age and in your circumstances having regard to the nature of the offending.  Nonetheless, Parliament requires me to make the order and I will do so." 

29As I have noted since sentencing Mr Bell, the Sex Offenders Registration Act has been amended so as to allow a person in his circumstances to apply for the exemption. 

30I am satisfied on the balance of probabilities, notwithstanding what I said about the seriousness of the offending and the deliberate nature of the flouting of the warnings from everybody around Mr Bell about not engaging in sexual activity with the victim because of her youth, that nonetheless, he poses no risk or a low risk to the sexual safety of one or more persons in the community. 

31In coming to that conclusion, I take into account the continued applicability of the findings I made at the time of sentencing as to the seriousness of the offending and the positive matters counting in Mr Bell's favour at the time of the sentence.  There is nothing negative in the materials before me since that, to change that view of his prospects for rehabilitation generally.

32I therefore declare, pursuant to s.11B that Mr Bell is not a registrable offender in respect of the offence of sexual penetration of a child under 16.  That means Mr Bell, the reporting provisions of the Sex Offenders Registration Act no longer apply to you.

‑ ‑ ‑