DPP v Malapanis

[2015] VCC 925

33

IN THE COUNTY COURT OF VICTORIA  Revised

Not Restricted

Suitable for Publication

AT MELBOURNE CRIMINAL DIVISION

Case No. CR-13-02461

DIRECTOR OF PUBLIC PROSECUTIONS  Applicant

v

LEON MALAPANIS  Respondent

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JUDGE:	Sexton
WHERE HELD:	Melbourne
DATEOF HEARING:	27 March 2015
DATEOF RULING:	25 June 2015
CASE MAY BE CITEDAS:
MEDIUMNEUTRAL CITATION:	[2015] VCC 925

REASONS FOR RULING

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Subject:         Application for Sex Offender Registration

Catchwords: Guilty of two offences which are not Class 1 or Class 2 offences - Registration discretionary – no criminal history – only reasonable prospect of rehabilitation – not satisfied beyond reasonable doubt that accused poses a risk to the sexual safety of one or more persons in the community – risk of harm in question occurring must be assessed to be real

Legislation Cited:     Section 11 Sex Offenders’ Registration Act

Cases Cited:            R v Bowden [2013] VSCA 382 Ruling: Application refused

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr G. Schubert	CDPP
For theAccused	Mr. T. Danos	Tony Danos

HER HONOUR:

1Application has been made under section 11 Sex Offenders’ Registration Act by the prosecution for registration of Leon Malapanis. Mr Malapanis opposed the application and I heard submissions on his behalf by counsel.

2Mr Malapanis has been found guilty of two offences that are not Class 1 or 2 offences under the Act. As a result, the making of the order is discretionary, and the order may only be made if, after taking into account any matter that the court considers appropriate, it is satisfied beyond reasonable doubt that Mr Malapanis poses a risk to the sexual safety of one or more persons in the community1.

3The pre-conditions2 have been met, as I have just imposed a sentence in relation to the relevant offences, and the application has been made within time.

4The first stage is to determine whether I am satisfied beyond reasonable doubt that Mr Malapanis poses a risk to the sexual safety of one or more persons in the community. The second stage, if I am so satisfied, is to determine whether to exercise my discretion to make the order for registration, by balancing the magnitude and nature of the risk, and the degree to which the risk may materialise, having regard to the purpose of the statutory scheme and the serious consequences to the offender of being required to submit to an onerous registration and reporting regime3.

5The prosecution submitted that I should be satisfied as to the first stage because the offences committed by Mr Malapanis were committed over a six month period in a persistent manner, which was not invited by the child with whom he was communicating.

6Counsel on behalf of Mr Malapanis submitted that Mr Malapanis had no criminal

1. Section 11(3)

2. Sections 11(5) and (6)

3. R v Bowden [2013] VSCA 382 at [30], [40]-[42]

history, had not therefore committed sexual offences before, and I could not be satisfied to the requisite high degree that he posed a risk to the sexual safety of another person. It was submitted that the sexual offending occurred in circumstances which have now been addressed by Mr Malapanis and that he has excellent prospects of rehabilitation.

7In my sentencing remarks, I found that his prospects of rehabilitation were only reasonable, partly because at least one important factor likely to reduce his risk

- employment after a long period of unemployment - was in existence during the second half of the period of offending.

8In Bowden v R4, the Court of Appeal did not need to consider the meaning of the term ‘sexual safety’, but found it sufficient in that case to say that a risk that a person may reoffend by committing an offence of a type described in a schedule to the Sex Offenders’ Registration Act would be a risk to the sexual safety of one or more persons or of the community.

9Further, in that case, it was held that the risk refers to the exposure to a chance of the harm in question occurring, and must be assessed to be real.

10If I am not satisfied that Mr Malapanis poses a real risk to the sexual safety of one or more persons or of the community, then I must refuse the application.

11I have considered the application in light of the findings I announced in my sentencing remarks, some of which I have just referred to in this application. I made a further finding in my sentencing remarks that there is a risk of Mr Malapanis re-offending, but he is unlikely to reoffend against the same victim.

12Despite these findings, I am not satisfied beyond reasonable doubt that his risk of re-offending involves a real risk of him committing a sexual offence. He is to be released immediately from the sentences of imprisonment I have imposed and  will commence  a Community Correction  Order,  including undertaking

1. Ibid at [31]

further treatment for his drug and alcohol consumption, and the Sex Offender program. This order is designed to reduce his risk. It follows that I am not satisfied to the requisite degree that Mr Malapanis will pose a real risk to the sexual safety of one or more persons or of the community.

13As the requirement at the first stage of the process has not been met, there is no need to turn to the second stage.

14The application to register Mr Malapanis as a sex offender is refused.