Re AJ (a pseudonym)
[2024] VSC 769
•13 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0015
| AJ (a pseudonym) | Applicant |
| v | |
| CHIEF COMMISSIONER OF VICTORIA POLICE | Respondent |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 December 2024 |
DATE OF JUDGMENT: | 13 December 2024 |
CASE MAY BE CITED AS: | Re AJ (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 769 |
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CRIMINAL LAW – Application under Sex Offenders Registration Act 2004 to suspend lifelong reporting obligations – Applicant convicted of two charges of making or producing child pornography, one charge of knowingly possessing child pornography, and one charge of using online service to transmit child pornography – Applicant downloaded and stored over fifty thousand images of child abuse material on computer and CD-ROMS – Applicant sentenced to 3 months’ imprisonment served by way of intensive correction order – Applicant required to comply with reporting obligations for life – Offending occurred over 19 years ago (1999 – 2005) – No subsequent convictions – Applicant now married with child and permanently residing in UK – Applicant subjected to psychological assessment – Assessed as low-risk of re-offending – Whether applicant poses no risk or low risk to sexual safety of community – Whether in public interest to suspend reporting obligations – Application granted.
ADMINISTRATIVE LAW – Jurisdictional error – Inferior court – Magistrates’ Court –Applicant ordered to comply with reporting obligations for period of eight years – Act required applicant to comply with reporting obligations for life – Order made in jurisdictional error – Order void.
ADMINISTRATIVE LAW – Jurisdiction – Standing – Act requires applicant to comply with reporting obligations for life – Reporting obligations suspended when outside Victoria – Applicant permanently resides in UK – Whether applicant precluded from making application to suspend reporting obligations while outside Victoria – Applicant still bound by Act notwithstanding suspension of reporting obligations – Standing to bring application.
Sex Offenders Registration Act 2004, ss 6, 7, 12, 16, 17, 18, 20, 23, 32, 34, 39, 40; Charter of Human Rights and Responsibilities Act 2006, s 40, considered.
Re GH [2024] VSC 216; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342; RJE v Secretary to the Department of Justice (2008) 21 VR 526, considered; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; State of New South Wales v Kable (2013) 252 CLR 118; DPP v Edwards (2012) 44 VR 114, referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J. Murphy | Doogue & George Defence Lawyers |
| For the Respondent | Mr L. Carter | Legal Practice Group, Victoria Police |
HIS HONOUR:
On 5 December 2006, the applicant pleaded guilty, in the Magistrates’ Court of Victoria at Melbourne, to the following offences:
(1)One charge of make/produce child pornography between 2 June 1999 and 18 May 2004, contrary to s 571AJ of the Crimes Act 1958.
(2)One charge of make/produce child pornography between 19 May 2004 and 11 July 2005, contrary to s 571AJ of the Crimes Act 1958.
(3)One charge of knowingly possession of child pornography on 11 July 2005, contrary to s 571AI of the Crimes Act 1958.
(4)One charge of using an online information service to transmit child pornography, between 1 January 2004 and 30 July 2004, contrary to s 57A of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1990.
The applicant was convicted on each charge and sentenced to an aggregate term of 3 months’ imprisonment, to be served by way of an intensive correction order under s 19 of the Sentencing Act 1991.
The order, by the Magistrates’ Court, recorded that the applicant was required to comply with reporting obligations pursuant to the Sex Offender Registration Act 2004 (‘the Act’) for a period of eight years. That part of the order was incorrect. For reasons that will be discussed, as a consequence of the applicant’s conviction on the charges, he was a registrable offender, and subject to reporting obligations for life.
The error in the Magistrates’ Court order was discovered by Victoria Police’s Sex Offender Registry in 2013. An attempt was made to notify the applicant in the United Kingdom, where he was (and still is) residing, but the attempt was unsuccessful. In 2020, the applicant returned to Australia for a short-term visit. On his departure at Melbourne Airport, he was detained and advised of the error in the Magistrates’ Court order, and was informed that, pursuant to the Act, his reporting obligations were for the remainder of his life. The applicant has not returned to Australia since January 2020, but he returned for, and attended, the current application.
The applicant now applies, pursuant to s 39 of the Act, for an order suspending his reporting obligations as a registrable offender under the Act.
It is noted that, on 7 August 2024, Freeman JR made orders, pursuant to s 17 of the Open Courts Act 2013, prohibiting publication of the names of the applicant, his family members, and any former partners. Accordingly, in these reasons, those persons will be identified by the use of pseudonyms.
Summary of offending
The applicant was born on 28 March 1980. The offending took place when he was between 19 years and 25 years of age.
The circumstances of the offending were contained in a summary that was presented to the Magistrates’ Court at the time of sentencing. The following is a paraphrase of that summary.
Between 2 June 1999 and 11 July 2005, the applicant downloaded child pornography images and movies from the internet. During that time, he saved the downloaded child pornography images and movies onto his computer, and copied them onto compact discs (‘CDs’).
Between 1 January 2004 and 30 July 2004, the applicant communicated with a male known as ‘Andrew’ on the internet. During that time, the applicant emailed to ‘Andrew’ a photograph of a naked girl aged approximately 7 to 10 years old, as well as approximately 10 photographs of naked girls under the age of 10 years, who were depicted either by themselves or when performing sexual acts with adults.
On 11 July 2005, police executed a search warrant on the applicant’s home address in Brighton East. Police seized the applicant’s computer, which had 50,732 still photographic images depicting minors, apparently under the age of 18 years, engaging in sexual activity or acting in an indecent manner, and 360 movie files containing minors, apparently under the age of 18 years, engaging in sexual activity or acting in an indecent manner. Many of the images and files consisted of adult males sexually penetrating young girls and boys, by acts of penis-vagina, penis-anus, digital and oral penetration. There were a number of images of adult males sexually penetrating female toddlers (by penis-vagina penetration). There were also a number of images of young children and toddlers performing oral sex on adults, and of children tied up in bondage paraphernalia, performing sexual acts or in sexual poses. In addition, there were several images of a girl being vaginally penetrated with instruments.
In addition, police also seized numerous CDs containing still photographic images and movies containing child pornography. There were approximately 30 CDs containing still photographic images and movies depicting minors, apparently under the age of 18 years, engaging in sexual activity or in an indecent manner. Some of the CDs contained thousands of child pornography images and videos on a single CD. For example, one disc contained 836 child pornographic images, together with 28 movies, depicting child pornography. Another disc contained approximately 1,500 still photographic images, comprising child pornography. The photographs and movies on the CDs depicted naked children, apparently under the age of 18 years, either alone in sexual poses, or participating in sexual activity with an adult or other children. They included girls performing oral sex on an adult male, or being vaginally penetrated by an adult male’s penis. There were numerous images of toddlers participating in sexual acts.
The applicant was interviewed by police on 15 July 2005, and again on 22 July 2005. He made full admissions to possessing and producing the still photographs images and movies containing child pornography, located on the computer and the CDs.
In the course of the interview on 15 July 2005, the applicant described the process by which he downloaded the child pornography onto the hard drive of his computer and saved them on CDs. Without setting out his description, it is clear that the process was quite complex and involved a number of steps. He said that he would look for child pornography sometimes once a week, sometimes three times a week. When asked how many images of child pornography he had, he responded that it ‘could be 100,000, it could be 200,000’. In giving that estimate, he said that he did not classify pictures of children in underwear as child pornography.
The applicant said that the pictures would usually be of young girls with males. He said that the young girls would be aged ‘three [years] and up’. He agreed that he had seen an image of a very young girl (aged between three and five years) performing oral sex on a man. He said that he had definitely seen ‘something of that nature’ and that he would have downloaded it. He also said that he would have seen an image of a girl, about seven years of age, having sex with an older man. The applicant said that the kind of abuse depicted in the pictures was varied. At one end of the ‘spectrum’ the material would depict a girl or boy on their own, standing naked. At the other end of the ‘spectrum’, the material would depict a ‘really young girl’ being raped ‘or something like that’. He said that the age of such a young girl would be ‘maybe five’.
The applicant said that he engaged in ‘chat groups’ in which he communicated with other men about the kind of material that he accessed and downloaded. He agreed that he had sent child pornography to other persons on five or six occasions. Those persons would send the applicant pictures in the expectation that he would reciprocate. He also said that he had met with one person, called Jake, who he had met and spoken with on the computer. He said that they met together for the purposes of dressing up in ‘sexual stuff’. The applicant also agreed that he had sent to a person called ‘Andrew’ pornographic images of girls, but, he said, they were in their underwear or fully clothed. He agreed he had sent to other persons images he had accessed of a young girl, aged about three to five years, having oral sex with a man, and another image of a girl about seven years of age having sex with an older man.
When further questioned, the applicant said that he had fantasised with another person about kidnapping a girl. When asked about that fantasy, he said that they would kidnap the girl and take her somewhere and ‘do stuff with her’. When asked what sort of things he would do with the girl, he responded ‘everything … oral sex, anal sex, that sort of thing’. When asked further about the fantasy, he said sometimes the person he was talking to wanted to kill the child, but he added ‘I don’t think I ever reciprocated that in any way’. He said that his fantasy was doing everything to the young girl that you would do with an adult woman. He said, ‘I got off on the child pornography’.
The second interview took place on 22 July 2005. On that date, the applicant, of his own volition, attended at the police station to tell the police about other people who might have something to do with child pornography and that he had forgotten to mention at the first interview. In the interview, he described how he would meet up with one particular person, and that the pair of them would cross-dress. On those occasions, they would view child pornography together. The applicant took one of his CDs containing child pornography to show to the other person. The other person described to the applicant how he had indecently assaulted his niece who was 12 or 13 years of age. The applicant said that, when he met the man, he (the applicant) had taken a few CDs with him that had child pornography on them.
The applicant’s background and circumstances
The applicant was born in Launceston, Tasmania on 28 March 1980. He has two younger brothers. The applicant had a largely positive family life. He completed Year 12 in Tasmania, and subsequently attended university in Launceston, where he completed a Bachelor of Computer Science Degree.
The applicant was first employed in a fast food establishment during his teenage years. He remained employed with that company until, subsequently, he moved to Victoria. He then obtained a position in Tech Support in Melbourne. In 2007, he emigrated to the United Kingdom, and he has obtained United Kingdom citizenship. The applicant has been consistently employed fulltime in the IT industry. Until December 2021, he served as the Chief Technical Officer of a company by whom he had been employed for 14 years. In 2022, he retired and became a fulltime husband and father.
In 1998, the applicant commenced a romantic relationship with BS,[1] which lasted some eight years. BS has remained in contact with the applicant, and she has provided a letter in support of the application. Subsequently, the applicant met his wife, JD,[2] whom he married in 2014. They have an eight year old son. JD has provided a character reference for him, which highlights his qualities as a parent and supportive partner. In her reference, JD has stated that the applicant’s reporting obligations and restrictions impact his life significantly. In particular, the applicant is restricted in where he can travel for work, which significantly reduces his opportunities and the jobs that he can apply for.
[1]A pseudonym.
[2]A pseudonym.
BS, in her reference, stated that she had seen the applicant interact with her own children when he visited Australia in 2020, and that she was impressed by his patience, kindness and appropriateness in his interactions with them. BS stated that she would not hesitate to leave her daughters in the applicant’s care if, for example, he offered to babysit them for an evening.
Psychological report
The application is supported by a report by Dr Michael Davis, a consultant forensic clinical psychologist. Dr Davis conducted a lengthy 222 minute interview and psychological testing with the applicant in April 2022 via video link. Dr Davis gave evidence on the hearing of the application, in which he explained and expanded upon aspects of his report.
In his report, Dr Davis set out the applicant’s background history. Dr Davis noted that, after his arrest in 2005, the applicant’s general practitioner referred him to a psychiatrist, Professor Ball. The applicant saw Professor Ball every two weeks for approximately six months and, during those consultations, they discussed the offending. Professor Ball prescribed two different antidepressant medications for the applicant.
Dr Davis discussed with the applicant, in some detail, his sexual orientation and proclivities. The applicant described to Dr Davis that he had engaged in some paraphilic (sexual deviant or atypical) consensual sexual behaviours in the past. They included indulging in transvestic fetishism. In his interview with police, the applicant had disclosed that he had, on the internet, engaged in a fantasy of kidnapping a girl and that he and his correspondent had discussed kidnapping and murdering a child. In the interview with Dr Davis, the applicant was adamant that he never masturbated to such thoughts or had fantasies of abducting a child.
Dr Davis discussed with the applicant his attitude to the offending conduct, in respect of which he was convicted. Dr Davis, in his report, noted the following:
When asked if he ever viewed child abuse material again after his initial arrest in 2005, [the applicant] replied, “No, stayed clear of it, you could say ... (I viewed) barely legal” type stuff (on legal sites). However, he was clear that he had not viewed any depictions of actual children since his arrest.
In his evidence, Dr Davis explained that the term, ‘barely legal’, is a phrase used in connection with legal websites, which are not part of the ‘dark web’. Dr Davis clarified that ‘barely legal’ material refers to material depicting ‘young looking’ 18 year old teenagers who, apparently, are engaging in sexual conduct.
Dr Davis conducted quite extensive psychological testing on the applicant. A summary of that testing and its results is as follows.
Dr Davis commenced with the Paulhus Deception Scales, which is a report instrument that was designed to ascertain whether the subject was deliberately trying to manage the impression which Dr Davis formed, or engaging in self-deception. The results on that scale indicated that the applicant was not engaging in any intentional or subconscious distortion in his responses.
Dr Davis then administered the Personality Assessment Inventory: Short Form questionnaire, which measures personality functioning and the presence of psychiatric symptoms. That test did not indicate a major mental illness or personality disorder. It did suggest some perceived difficulties with alcohol use, periodic anxiety-related behavioural patterns, and transient thoughts of self-harm.
The next test was the Correlates of Admitted Sexual Interest in Children test, which is a behavioural rating scale, and which is designed to assist in the assessment and diagnosis of Paedophilic Disorder or Hebephilia. Details of the applicant’s offending indicated that he had three of the six items on that scale, namely, child pornography videos, child pornography text stories, and child pornography activity spanning two or more years. Dr Davis noted that the applicant’s score on those three points were slightly higher than the average score amongst child abuse material offenders in the samples on which the instrument was developed and validated. He noted that conservative cut-scores with three or above are considered to indicate the presence of paedophilic or hebephilic sexual interests. Accordingly, the results of the test indicated that, at the time of offending (1999 to 2005), the applicant was likely to have a sexual interest in pre-pubescent or pubescent children.
Dr Davis did not formally test the applicant’s intellectual functioning, but he considered the applicant to be of at least average intellectual functioning, if not above average. The applicant had ‘some insight’ into his previous offending behaviour, and he was cognisant of the fact that actual children had been abused to make the material available to him.
Dr Davis then referred to a number of tests that he administered to assess the risk of the applicant reoffending.
The Hare Psychopathy Checklist: Screening Version test indicated that the applicant had an unusually low score. Dr Davis concluded that the applicant is not psychopathic, and he does not possess personality features associated with offending of a particularly callous or predatory nature. His overall score on the test did not suggest an elevated risk of reoffending. In fact, his score on Part 2 of the test, which assesses antisocial behaviour, was extremely low.
The Level of Service/Risk, Need, Responsivity Test is a scale that predicts general criminal conduct across eight broad domains. The applicant’s total score on the test was in the lower end of the ‘low’ range of risk and need. None of the eight areas was considered to be particularly problematic. There were two areas of medium need, namely, leisure/recreation and education/employment. Neither of those two areas were artificially elevated. The remaining six areas were considered to be of low or very low need.
The Child Pornography Offender Risk Tool (‘CPORT’) is a test designed to assess sexual recidivism among male offenders with a conviction for a child abuse material offence. In his report, Dr Davis noted that research concerning the validity of the test was then in its infancy, and results of the test should be viewed with some caution. In his evidence, Dr Davis explained that, since the time of his report, a substantial amount of research has been done into the CPORT, which has validated it, so that it is now regarded as the leading tool for the assessment of sexual recidivism among male offenders.
The test was used by Dr Davis to identify whether the applicant has any identified risk factors for sexual recidivism. Dr Davis explained that the base rate of reoffending, for persons who are apprehended with child abuse material, is about 4 per cent. That is, 4 per cent of persons, who are apprehended by police with child abuse material, subsequently reoffend. By contrast, across the spectrum of different types of offending, the base rate of reoffending is approximately 30 per cent to 40 per cent.
Dr Davis also noted that it is even less likely that a person, who has never committed a contact offence (that is, an offence of engaging in sexual abuse of children), and who is charged with child abuse material offending, will subsequently proceed to commit a contact offence.
The CPORT test itself consists of seven risk factors. Dr Davis noted that at the time of the offending the applicant had two of those factors (aged less than 35 years at the time of the investigation, and indication of paedophilic or hebephilic sexual interest). There was nothing to suggest that the other five items applied to him. Dr Davis considered that the results of the test suggested that the applicant did not pose an elevated risk for further child abuse material offending at the time that he was arrested and initially bailed in July 2005.
In a footnote to his report concerning that test, Dr Davis referred to the test, which has already been mentioned, the Correlates of Admitted Sexual Interest in Children test. In the footnote, Dr Davis noted that, during the assessment interview, the applicant admitted to having child abuse material text stories at the time of the offending. Dr Davis also noted that the applicant had also admitted, during his police interview, that he had masturbated to child abuse material. Accordingly, Dr Davis considered that the particular risk factor, identified by him — of paedophilic or hebephilic sexual interest — was present, regardless of the criteria used to define it.
The next test, administered by Dr Davis, was the Risk for Sexual Violence Protocol — Version 2. In his evidence, Dr Davis noted that that test is considered to be one of the leading tools for assessing risk among persons who have committed other forms of sexual offending.
The results of that test indicated that the applicant has had very few risk factors for sexual offending, and almost no risk factors with any recent evidence. Accordingly, Dr Davis considered that there is nothing to suggest that he poses anything other than a ‘low risk’ for contact sexual offending or any offending that involves contacting children online. Dr Davis noted that the applicant has been in the community for almost nineteen years since his arrest for child abuse material offending, with no documented offending behaviour of any kind during that period. Dr Davis was of the view that the applicant’s lengthy period of time in the community, free of offending, constitutes a very powerful protective factor. Dr Davis considered that the applicant currently poses a low risk for further child abuse material offending.
In conclusion, Dr Davis considered that the applicant does not currently meet formal criteria for a major mental illness or personality disorder. He does have a foundation of some slightly atypical personality features, but his personality function currently is at a very minimal level of impairment. Dr Davis considers that the applicant’s offending behaviour raises the possibility of a diagnosis of Paedophilic Disorder or Hebephilia. The applicant developed a sexual interest in children when he started viewing child abuse material, and he subsequently amassed a ‘rather sizeable’ collection of it. As some of the material depicted prepubescent and pubescent children, the diagnoses of Paedophilic Disorder and Hebephilia are arguably appropriate. Dr Davis noted that, while the applicant developed a sexual interest in children, his primary deviate sexual interest involved cross-dressing. Dr Davis considered that the applicant likely had a latent sexual interest in children or adolescents, triggered by his viewing of the child abuse material, that was secondary to the primary Transvestic Disorder diagnosis.
Dr Davis noted that although the applicant claimed to never watch the child abuse material, that he had retained, more than once, nevertheless, it was ‘curious’ why he had kept so much child abuse material in his collection. Dr Davis noted that the applicant does not appear to have engaged in any overt behaviour in recent years that would reflect previous diagnoses of Transvestic Disorder, Paedophilic Disorder, or Hebephilia.
Dr Davis emphasised that the official recidivism rates for child abuse material offenders are, in general, low. He considered that the applicant has a minimal number of identified risk factors for reoffending. He noted that a recent study concluded that, after 10 to 15 years, most individuals with a history of sexual offending were no more likely to commit further sexual offences than individuals with a criminal history that did not include such offences.
Dr Davis concluded his report by expressing the opinion that the applicant currently poses a ‘low risk’ for further child abuse material offending, or any other type of sexual offending.
In his evidence, Dr Davis elaborated on his reasons for that conclusion.
Dr Davis noted that the applicant has an ‘extraordinarily low level’ of psychopathic features. He is not an antisocial individual. Further, the Level of Service/Risk, Need, Responsivity test did not suggest any high levels of need which might precipitate reoffending. Dr Davis also noted that people, who commit the type of offending engaged in by the applicant, ordinarily lack insight into the fact that real children are being abused to create the material that they view and retain. Dr Davis explained that, by a process of ‘cognitive distortion’, such persons convince themselves that they are not hurting anyone. He said that that was also the case with the applicant, but, when he interviewed the applicant, it was apparent that he is now well aware of the fact that the material, which he viewed and retained, involved real children being abused. Dr Davis also noted that the fact, that the applicant has not, over the last nineteen years, engaged in any further form of antisocial behaviour, is one of the most powerful protective factors in determining whether there is a risk that he will reoffend in the future.
Dr Davis considered that, at the time of the offending, the applicant was confused as to his sexual orientation. The applicant had developed an interest in transvestic fetishisms, and he questioned whether he was actually transgender. Ultimately, in the course of time, the applicant decided that he really was a male. However, it was in the process of that earlier sexual confusion that he came across child abuse material and was aroused by it. The applicant informed Dr Davis that he has not engaged in any transvestic activities since the age of 30 years, and it would appear that his interests in atypical sexual activities have dissipated over time. In particular, there is no evidence to suggest that he has had any sexual interest in children since the time of the offending.
In conclusion, Dr Davis confirmed that he assessed the applicant to be a ‘low risk’ of reoffending in terms of child abuse material. He explained that that assessment means that the applicant poses a considerably lower risk than the average offender of that time. In other words, the average risk of reoffending, in respect of child abuse material, is less than 4 per cent, and the risk of the applicant reoffending in that respect would be ‘considerably lower’ than that. Dr Davis also concluded that the risk of the applicant engaging in contact sexual offending (against children) is particularly low. He explained that it is very rare for a person, who engages in a child abuse material offence, to proceed to engage in contact sexual offending. He said that it is exceedingly rare for people, who have been apprehended in respect of child abuse material, to subsequently proceed to engage in contact offending against children.
The applicant’s evidence
In a preliminary mention hearing in the present matter, I drew to the attention of the parties that the applicant had not deposed an affidavit to the effect that he does not, and has not, since the time of his offence, accessed, possessed, made or transmitted any child pornography material. I expressed the preliminary view that such evidence may be necessary (but not necessarily sufficient) for the purposes of the present application.
As a consequence, on 3 December 2024, the applicant deposed a short affidavit, which was filed on his behalf, and in which the applicant stated as follows:
I have not accessed, possessed, produced or transmitted child pornography/child abuse material since I was arrested and charged in July 2005.
I have read the psychological report of Dr Michael Davis dated 13 May 2024 and confirm it is an accurate representation of things I said during the assessment with Dr Davis. The things I told Dr Davis were the truth.
Since being sentenced in 2006, I have not been charged with or convicted of any other offences.
Relevant provisions of Act
Section 6 of the Act provides that a ‘registrable offender’ is a person whom a court has at any time sentenced for a ‘registrable offence’. Section 7(1) provides that a registrable offence is (inter alia) either a Class 1 offence or a Class 2 offence. A Class 2 offence is an offence that is listed in Schedule 2 of the Act. Each of the four offences, in respect of which the applicant was convicted, was prescribed in Schedule 2 to be a Class 2 offence.
Section 34(1)(c)(iii) provides that a registrable offender must continue to comply with the reporting obligations for the remainder of his or her life, if he or she has been found guilty of three or more Class 2 offences.
Part 3 of the Act prescribes the reporting obligations of a registrable offender. Section 12 requires a registrable offender to report his or her personal details to the Chief Commissioner of Police within the period specified by the section. Section 14 sets out a list of personal details that must be contained in the initial report.
Section 16(1) provides that a registrable offender must report his or her personal details to the Chief Commissioner of Police each year. Section 17 provides that a registrable offender must report to the Chief Commissioner any change in his or her personal details within seven days of such change.
Section 18 imposes obligations on a registrable offender if that person intends to leave Victoria for two or more consecutive days to travel elsewhere in Australia, or intends to leave Victoria to travel out of Australia. In such a case, the registrable offender, before leaving Victoria, must report the intended travel to the Chief Commissioner and provide particular details, specified in s 18.
Section 20 applies if a registrable offender is required by s 18 to report that he or she intended to leave Victoria. In such a case, that person must report his or her return to Victoria to the Chief Commissioner within seven days of entering and remaining in Victoria.
Section 23 requires that the initial report, and the reports required by sections 16, 18 and 20(2A), be made in person to the Chief Commissioner.
Section 32(1) (a) provides that the reporting obligations of a registrable offender are suspended for any period during which that person is outside Victoria.
The application in the present case, for a suspension of the applicant’s reporting obligations, is made under ss 39 and 40 of the Act. Those sections provide as follows:
39(1) This section applies to a registrable offender who is required to continue to comply with the reporting obligations imposed by this Part for the remainder of his or her life.
(2)If—
(a)a period of 15 years has passed (ignoring any period during which the registrable offender was in government custody) since he or she was last sentenced or released from government custody in respect of a registrable offence or a corresponding registrable offence, whichever is later; and
(b)he or she did not become the subject of a life-long reporting period under a corresponding Act whilst in a foreign jurisdiction before becoming the subject of such a period in Victoria; and
(c)he or she is not on parole in respect of a registrable offence—
the registrable offender may apply to the Supreme Court for an order suspending his or her reporting obligations.
40(1) On the application under section 39(2), the Supreme Court may make an order suspending the registrable offender’s reporting obligations.
(1A)On the application under section 39A, a court may make an order suspending the registrable offender’s reporting obligations for the period of time specified in the order (which may be the remainder of the offender’s life).
(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.
(5)In deciding whether to make an order under subsection (1A), a court must also take into account any evidence presented by the Chief Commissioner as to the risk that the registrable offender presents to the sexual safety of one or more persons or the community.
Preliminary issues
The respondent, who does not formally oppose the application, has raised two preliminary, or threshold, issues concerning the power of the Court to entertain the application in the present case.
First, as earlier mentioned, in the notice of order made by the Melbourne Magistrates’ Court, it is stated:
The accused has been sentenced to a registrable offence pursuant to the Sex Offender Registration Act 2004.
The accused is to report to Victoria Police for a period of eight years.
Plainly, the reporting period, recorded in the order, is incorrect. The respondent has raised the question whether, nevertheless, the imposition of lifelong reporting obligations on the applicant is lawful, in view of the content of the order, made by the Magistrates’ Court.
The second preliminary issue is whether the applicant is able to apply to this Court for an order suspending his reporting obligations pursuant to s 39, in circumstances in which those obligations are suspended under s 32 of the Act.
In respect of the first issue, the respondent contended that the Magistrates’ Court had no power under the Act to make an order in relation to the applicant’s reporting obligations. Accordingly, it was submitted that the part of the order, prescribing a reporting period of eight years, constituted a jurisdictional error, so that that part of the order is void.
That proposition, by the respondent, is correct. Section 34 of the Act prescribes the term of the reporting period, which automatically applies to a registrable offender. The Act does not make any provision for the sentencing court to vary such a term, or to prescribe a reporting period that is different to that specified by s 34.
The Magistrates’ Court is a court of inferior jurisdiction. It is well-established that an order, made by an inferior court, such as the Magistrates’ Court, will be null and void if that court did not have jurisdiction to make the particular order.[3]
[3]Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 389 (Dixon J); Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, 445 [27] (Gaudron, Gummow and Callinan JJ), 456–7 [71] (McHugh J); Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, 370 [10]–[11] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); State of New South Wales v Kable (2013) 252 CLR 118, 140 [56] (Gageler J); Director of Public Prosecutions v Edwards (2012) 44 VR 114, 122–124 [29]–[39] (Warren CJ).
That principle was definitively expressed by McHugh JA (as his Honour then was) in Attorney–General (NSW) v Mayas Pty Ltd[4] in terms which have been cited in a number of subsequent decisions:
If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal’s power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.[5]
[4](1988) 14 NSWLR 342.
[5]Ibid, 357.
The Magistrates’ Court did not have power to impose the reporting period specified by the order that is entered in its records. That part of the magistrate’s order, accordingly, is a nullity. As such, it does not, and may not, preclude the applicant proceeding with the current application.
The second threshold preliminary issue, raised by the respondent, is whether the applicant is able to apply to the Court for an order suspending his reporting obligations while he is living overseas.
That issue was raised by the respondent in circumstances in which, at the time of the filing of the application, the applicant was outside the jurisdiction. At the time of the hearing of the application, the applicant had entered the jurisdiction and he attended the court hearing. For that reason, the second preliminary issue is, strictly speaking, academic. Nevertheless, the respondent requested that I give consideration to it, as that issue may arise in other future applications under s 39 of the Act.
Ordinarily, I would hesitate to determine an issue, which, for the purposes of the particular case, is somewhat academic. Nevertheless, in view of the circumstance that the parties each filed detailed submissions in addressing the issue, and, in particular, in view of the potential relevance of that issue to other applications, I consider that it is appropriate that I address it in these reasons.
In respect of the issue, the respondent submitted that s 32 of the Act precludes the applicant from making such an application, because that section effectively suspends the reporting obligations while the applicant is outside Victoria.
In particular, counsel for the respondent submitted that, apart possibly from a requirement under s 18 of the Act that the applicant advise the Chief Commissioner that he will be returning to Victoria for a short-term stay, the remainder of the applicant’s reporting obligations have been, and remain, suspended while he has been permanently residing in the United Kingdom. In those circumstances, it was submitted, the applicant is not under any reporting obligations, imposed by Part 3 of the Act, while he was overseas, and therefore s 39 does not apply to him. It follows, it was submitted, that the applicant would be precluded from making the present application to suspend his reporting obligations unless he is within the jurisdiction.
In advancing that submission, counsel for the respondent accepted that the interpretation, which is contended for, requires that the phrase ‘and whose reporting obligations have not been suspended’ be imported into s 39(1) after the phrase ‘who is required to continue to comply with the reporting obligations imposed by this Part’. It was submitted that such a construction of s 39 is necessary, because there must be a requirement that there be a reporting obligation, in order that that obligation be suspended.
In response, counsel for the applicant submitted that, as a registrable offender, the applicant is a person who, in terms of s 39(1) of the Act, is required to ‘continue to comply with the reporting obligations imposed by this Part for the remainder of his … life’. Counsel further submitted that the use of the word ‘continue’ makes it clear that the suspension of a person’s reporting obligations, because that person is outside Victoria, does not mean that the person’s reporting obligations do not ‘continue’.
On analysis, I am not persuaded that the applicant would be precluded from applying for a suspension of his reporting obligations under s 39, by reason of the circumstance that, as a result of living overseas, his reporting obligations would then be currently suspended under s 32 of the Act.
The terms in which s 39(1) is drafted are quite clear. By its plain language, it entitles any registrable offender, who is required to continue to comply with the reporting obligations for life, to apply for a suspension of those obligations.
The reporting obligations, imposed by Part 3 of the Act, apply to the applicant, as a registrable offender, notwithstanding that those obligations are suspended during the period in which he is residing in the United Kingdom. As such, the applicant continues to be bound by those obligations, albeit that compliance with them is suspended while he is living overseas.
As counsel for the respondent has correctly conceded, the interpretation contended for on behalf of the Chief Commissioner would require s 39(1) to be redrafted, so that it would read (with additional words in italics):
This section applies to a registrable offender who is required to continue to comply with the reporting obligations imposed by this Part, and whose reporting obligations have not been suspended, for the remainder of his or her life.
Contrary to the submission made on behalf of the Chief Commissioner, the importation of those additional words into s 39(1) is not required, nor justified, in order to give a proper effect to s 39(1), as the Act contains a number of provisions that continue to apply in respect of the applicant’s reporting obligations, notwithstanding that he is resident overseas.
In particular, section 20(2A) of the Act provides that if a registrable offender (such as the applicant) leaves Victoria and is out of Australia, that person must report his or her return to Victoria to the Chief Commissioner within one day after entering and remaining in Victoria for two or more consecutive days. Section 21A(2) provides that, in such a case, the registrable offender must, at the time of making such a report, produce to the Chief Commissioner his passport and documents specified by the regulations for the purposes of verifying or supporting the details of his report. Section 23(1)(bb) provides that the report must be made in person. Section 26 provides that, in making the report, the registrable offender must present for inspection his or her driver’s licence or any other form of identification, a photograph suitable for use in an Australian passport. Each of those provisions apply, and remain applicable, to the applicant as a registrable offender, notwithstanding that he has been absent from Australia, during which period his reporting obligation has been suspended.
It follows that s 39(1) of the Act does apply to a registrable offender, notwithstanding that that person’s reporting obligations have been suspended while the registrable offender has been a resident overseas. Accordingly, the applicant was not disentitled from applying, under s 39(2) of the Act, for an order suspending his reporting obligations under the Act, while he was outside the jurisdiction.
Substantive issue — submissions
Counsel for the applicant submitted that the evidence demonstrates that the applicant is a person of low risk to the sexual safety of others.
In support of that submission, counsel relied primarily on the expert report of Dr Davis. In particular, counsel noted the results of Dr Davis’ examination, involving the Hare Psychopathy Checklist, the Level of Service/Risk Test, the Child Pornography Offender Risk Tool, and the Risk of Sexual Violence Protocol Test. Counsel submitted that, as the Court of Appeal stated in RJE v Secretary to the Department of Justice,[6] the Court should be slow to depart from a risk assessment by an appropriately qualified expert, because such an assessment is one which necessarily involves the particular expertise of the qualified expert, which is expertise not possessed by judges.
[6](2008) 21 VR 526 [18] (Maxwell P and Weinberg JA).
Counsel also relied on the fact that the applicant, at the time of his arrest, pleaded guilty and cooperated with the authorities. Further, it was submitted, the applicant’s offending did not involve any direct incursion into the sexual safety of others, but it was accepted it might have been predictive of future such incursions. In that respect, it was noted that the applicant has now had a long period of abstention from engaging in the same offending in respect of which he was convicted, and that, in the meantime, he has established a new life for himself in the United Kingdom with his wife and child.
In addressing the matters specified in s 40(3), counsel accepted that all child pornography offences are necessarily serious. However, it was submitted, the applicant’s offending was largely limited to his personal use, and it had no commercial element attached to it. Nineteen years have now passed since the most recent offence date. The applicant was aged between 19 and 25 years of age at the time of the offending, and he is now 44 years of age. In the meantime, the applicant has had no other criminal history.
Counsel also submitted that the applicant’s rights, under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’), are relevant to the consideration under s 40(2)(b) of the Act as to whether it is in the public interest to suspend the applicant’s reporting obligations.
In that respect, it was submitted that four of the rights, prescribed by the Charter, are relevant to that consideration.
First, counsel referred to the right to free movement, specified in s 12 of the Charter. In particular, it was submitted, that right is engaged in this case by reason of the pre-departure reporting obligations and international travel reporting obligations, specified in ss 17(1B)(b), 18, 19, 20, 21 and 21A of the Act.
Secondly, counsel submitted that the right to privacy, prescribed by s 13 of the Act, is relevant, because the reporting obligations infringed the applicant’s right to determine to whom, and in what circumstances, he will release personal information about himself.
Thirdly, counsel relied on the right to free association, specified in s 16 of the Charter. It was submitted that that right is engaged by the requirement that the applicant report every child with whom he is in contact, pursuant to ss 4A, 14(1)(e) and 14(1)(ea) of the Act.
Finally, it was submitted, the applicant’s right to liberty, under s 21 of the Charter, is affected by the reporting obligations, as the continued obligation to report constitutes an infringement on his personal liberty.
In response, the respondent did not formally oppose the application, by the applicant, to have his reporting obligations under the Act suspended. Counsel for the respondent helpfully addressed the considerations, which are required to be taken into account under s 40(2) of the Act.
In respect of s 40(2)(a), counsel for the respondent noted that the applicant’s offending was not ‘situational’, that is, it was not based on the situation he just happened to find himself in, and which is unlikely to be repeated. Rather, it was submitted, the offending by the application was based on his personality and disposition, and was related to his paedophilic disorder and hebephilia, combined with his transvestic disorder, described in the report of Dr Davis. In particular, counsel noted that the applicant had actively sought out child pornography, and he had engaged with other adult men who had a mutual interest in child pornography.
Counsel further noted that, although the applicant has married and is a father, nevertheless, similar factors were present at the time at which he engaged in the offending. At that time, the applicant was in a long-term romantic relationship with a female partner, and he viewed adult pornography and had an interest in cross-dressing. Counsel noted that those three factors are still present. In particular, the applicant continues to watch pornography involving transgender people.
Counsel noted that the applicant had admitted to Dr Davis that he has viewed ‘barely legal’ pornography, which is understood to mean images of people who look very young, but have just reached adulthood. Although the applicant has told his wife about his conviction, he has not disclosed to her that he watches pornography involving transgender people, or that he previously was involved in cross-dressing. Counsel also submitted that it is of concern that the applicant is no longer employed, so that he has additional time and opportunity to be alone and to engage in viewing pornography which, it was submitted, could be the start of a ‘slippery slope’ to reoffending.
Counsel for the respondent also disagreed with the submission, by the applicant’s counsel, that the offending did not involve any direct incursion into the sexual safety of others. Counsel submitted that viewing child pornography fuels the market for that material, and thus leads to the sexual abuse of potentially thousands of children in Australia and overseas.
Further, it was submitted on behalf of the respondent that the applicant’s reporting obligations do not affect any of the rights under the Charter relied on by the applicant, and, in particular, those specified in ss 12, 13, 16 and 21 of the Charter. Counsel noted that s 12 of the Charter does not refer to a right to enter and leave Victoria ‘freely’. Counsel noted that nothing in the Act prevents the applicant from travelling either interstate or internationally. All that the Act requires is notification of travel, which, it was submitted, is no impediment to travel. The requirement, to attend a police station to complete an annual interview, does not limit the right to free movement within Victoria. In respect of s 13 of the Charter, it was submitted that the Act does not involve any unlawful or arbitrary interference with the applicant’s privacy. Further, it was submitted, the Act does not limit a person’s right to free association with others under s 16 of the Charter, and it does not affect a person’s right to liberty or security under s 21 of the Charter.
Counsel for the respondent also addressed the considerations prescribed by s 40(3) of the Act.
In respect of s 40(3)(a), counsel submitted that the applicant’s offending was at the higher end of the spectrum, because: it occurred over a lengthy period of time (six years); the applicant knew that his behaviour was illegal; the volume of child pornography material, collected by the applicant, was high; the victims in the images and footage ranged from infants to prepubescent and pubescent children; and many of the images and footage were particularly egregious. Further, it was noted that the applicant had admitted that he had used the child abuse material as a means to engage male sexual partners in online chat rooms, and that he had met up with a number of men and showed them some child pornography material he had saved on the discs.
In respect of the matters specified in s 40(3)(b) to (e), counsel respectively noted that 19 years have passed since the offending, that the applicant was 19 years of age at the commencement of offending, but he was 25 years of age at the time of his arrest. The applicant is now 44 years of age, but, it was submitted, that consideration provides little comfort as a protective factor against reoffending. It was accepted that the applicant has no previous, nor subsequent, offending in Australia or in the United Kingdom.
Finally, counsel noted that, in reality, the applicant has only been subject to the reporting obligations between 2006 and 2014, because, after 2014, he was not subject to reporting obligations in the United Kingdom, and his reporting obligations in Australia were suspended.
Analysis and conclusion
In GH v Chief Commissioner of Police,[7] Croucher J discussed the content, and proper construction, of s 39 and s 40 of the Act. For the purposes of determining the present application, I substantially adopt the principles, stated by his Honour in that decision. Those principles, for present purposes, may be outlined in summary form as follows.
[7][2024] VSC 216 (‘GH’).
First, in order to be eligible to apply for an order under s 40(1) of the Act, the registrable offender must, first, satisfy the threshold requirements, specified in s 39(2), namely, that: a period of 15 years has passed since the applicant was last sentenced in respect of a registrable offence; the applicant did not become the subject of a life-long reporting period under a corresponding Act whilst in a foreign jurisdiction before becoming the subject of such a period in Victoria; and the applicant is not on parole in respect of a registrable offence.[8]
[8]Ibid [78].
Secondly, the Court is precluded from making an order, under s 40(1), unless it is satisfied of both the ‘risk’ requirement in s 40(2)(a), and the ‘public interest’ requirement in s 40(2)(b). As Croucher J noted, they are ‘conjunctive requirements’.[9]
[9]Ibid [80].
Thirdly, the requirement in s 40(2)(b), that it is in the public interest to suspend the registrable offender’s reporting obligations, is separate and additional to the requirement, in s 40(2)(a), that the Court be satisfied that the applicant poses ’no risk or a low risk to the sexual safety’ of one or more persons or of the community. Nevertheless, a finding of satisfaction in respect of the risk test, prescribed by s 40(2)(a), would, ordinarily, be highly favourable to a conclusion in relation to the ‘public interest’ test prescribed by s 40(2)(b).[10]
[10]Ibid [82]–[86].
Fourthly, the use of the permissive verb ‘may’, in s 40(1) of the Act, confers on the Court a discretion to make an order suspending a registrable offender’s reporting obligations. Such a discretion must, of course, be exercised judicially. It must be informed by relevant considerations based on the evidence, and it must be exercised in a rational and informed manner. As Croucher J noted in GH, it might be expected that the exercise of the discretion would be informed, at least to some degree, by the matters specified in s 40(3) of the Act.[11]
[11]Ibid [86].
Section 40(2)(a) requires the Court to be satisfied that the registrable offender poses ‘no risk or a low risk’ to the sexual safety of one or more persons or of the community. That requirement is based on the proposition that a person, who has committed the kind of offences, specified in Schedule 1 and Schedule 2 of the Act, may constitute a risk to the sexual safety of members of the community, and, in particular, to the safety of children.
In the context of the offending in this case — offending involving the accessing, production, and transmission of child pornography — two potential risks require consideration.
The first risk is that a person, who has indulged such a predilection for the depiction of sexual offending against children, may, by reason of that predilection, and by reason of the person’s possession and production of that material, constitute a danger to the sexual safety of underage persons and children in the community. It was that danger that was the primary focus of the report, provided by Dr Davis, in this case.
The second relevant risk, to the sexual safety of the community, is the risk of reoffending. That risk is expressly recognised by s 1(1)(a) of the Act, which provides that one of the purposes of the Act is to reduce the likelihood that a registrable offender will re-offend.
In the present case, the risk, which reoffending would pose to the sexual safety of the community, arises from the actions of the applicant in accessing a vast quantity of child pornography, which he stored in his computer and on CDs. That material depicted depraved sexual offending in which the victims were real, live children and infants. As the courts have consistently recognised, the offences of accessing and possession of child pornography are very serious. Those persons, who are inclined to exploit children, by involving them in the production of child pornography, are encouraged by the fact that there is a market for such material. In other words, the conduct of persons, who access child pornography, creates a market for the continued and cruel corruption and exploitation of children, by fuelling demand for such material.[12]
[12]DPP (Cth) v D’Alessandro (2010) 26 VR 477, 483 [21] (Harper JA); R v De Leeuw [2015] NSWCCA 183 [72] (Johnson J); DPP v Garside [2016] VSCA 74, [71]; R v Coffey (2003) 6 VR 543, 552 [30] (Callaway JA); Crowder (a pseudonym) v The King [2024] VSCA 211 [40]–[45] (Macaulay and Kaye JJA).
In GH, Croucher J gave consideration to the proper construction of the requirement, in s 40(2)(a), that the registrable offender must pose ‘no risk or a low risk’ to the sexual safety of others or of the community. Two points are relevant in considering that requirement.
First, as discussed in other cases, including GH, it is sufficiently clear that the requirement is that the applicant at present is not, and in the foreseeable future will not be, a risk to the sexual safety of others.[13]
[13]GH, [93]; LR v Commissioner of Police [2018] SASC 181 [11] (Nicholson J) (‘LR’).
Secondly, the requirement, that there be either ‘no risk’ or a ‘low risk’, is plainly a rigorous and stringent requirement. It is directed, in particular, to protecting the sexual safety of vulnerable members of the community. For the purposes of determining the present application, it is not necessary to enter into the discussion as to whether the requirement that there be ‘no risk’ is concerned with there not being an ‘appreciable’ risk.[14]
[14]LR [13]–[16].
In GH, Croucher J also considered the question whether an applicant, in an application such as this, bears the onus to establish the requirements, prescribed by s 40(2)(a) and (b). By its clear terms, s 40(2) precludes a court making an order unless it is satisfied as to each of those two preconditions. It is the applicant who seeks that such an order be made by the court. The applicant thus bears the onus of establishing the satisfaction of the two preconditions.
As I have explained, the reporting requirement, prescribed by s 34 of the Act, is directed to protecting vulnerable children from the irreparable damage caused to them by the forms of sexual offending prescribed by Schedule 1 and Schedule 2 of the Act, including the offending engaged in by the applicant. The reporting requirement is directed to the protection of the sexual safety of vulnerable young members of the community. Those considerations necessarily inform an assessment, by a court, as to whether it is satisfied that the registrable offender, who applies for a suspension of the reporting obligation, poses no risk or a low risk to the sexual safety of other persons or of the community, and as to whether it is in the public interest to make an order suspending the reporting obligations of the registrable offender.
In the present case, the resolution of the question, whether the applicant has established that he is a low risk to the sexual safety of others or of the community, is not entirely straightforward.
The starting point is that the offending, by the applicant, involved the downloading and retention by him of a most substantial quantity of child abuse material, which he then proceeded to retain on the hard drive of his computer and on CDs. The applicant engaged in that conduct for six years. The material included a very significant number of images depicting minors, including pre-pubescent children and infants, who were as young as three years of age, being sexually abused and penetrated by older males in a variety of perverted and morally depraved acts.
The offending commenced when the applicant was 19 years of age. The applicant engaged in the offending between the ages of 19 and 25 years. He was not then in the throes of youth, and his offending could not be attributed to immaturity. The applicant did not advance any reasonable justification for engaging in the offending. Dr Davis has diagnosed that it was connected with, and demonstrative of, his paedophilic and hebephilic disorders.
The fact that the applicant shared the material with other adult males, and engaged in disturbing fantasies with them, is another factor of concern in the present case. It is also relevant that the applicant only desisted from the offending when he was apprehended by police.
It is in that context that it is necessary to determine whether, based on the evidence that has been adduced on the present application, it may be properly assessed that the applicant now presents a low risk to the sexual safety of the community.
As I have discussed, that question involves an assessment whether, notwithstanding the matters that I have just discussed, the applicant presents no more than a ‘low risk’ of reoffending in two relevant respects, namely, first, by accessing, downloading and distributing child abuse material, and, secondly, by engaging in sexual offending against underage persons and children in the community.
In determining that question, it is relevant that the applicant has proven himself to be quite frank and candid about his conduct, not only when interviewed by police in 2005, but, more importantly, when he was interviewed, in some detail, by Dr Davis. In the course of the interview with Dr Davis, the applicant volunteered a number of matters which, he must have realised, might not have been of assistance to his case.
The applicant’s candour in this regard is important for two reasons. First and foremost, it provides a reliable factual basis for the expert opinions, expressed by Dr Davis in his report and in his evidence on the hearing of this application. Secondly, the applicant’s candour and honesty demonstrates that he has achieved a substantial degree of insight into the wrongfulness and harmful nature of the offending in which he previously engaged.
As Dr Davis has noted, a principal factor, weighing in favour of the applicant, is that some nineteen years have now passed since the applicant engaged in the offending. During that intervening period, he has not reoffended in any respect. In particular, Dr Davis accepted the applicant’s assurance that he has not accessed or downloaded any child abuse material. The applicant’s concession, that he has accessed ‘barely legal’ sites, was regarded by Dr Murphy as being important as demonstrating that the applicant was being ‘extraordinarily honest’ with him in that respect.
During the last nineteen years, the applicant has achieved a substantial degree of stability in his ordinary, day-to-day life. He has had a steady marriage, and he is the father of a young son. The applicant has been particularly successful in his business.
Certainly, similar factors did not prevent the applicant from offending in the past. However, the fact that the applicant has had, and continues to have, stability in his daily life, has the effect that he is not vulnerable to the type of stressors which, Dr Davis noted, can lead to the type of offending previously engaged in by the applicant.
Ultimately, the determination of the question, whether the applicant is now a low risk to the sexual safety of the community very much depends on the evidence given by Dr Davis.
Dr Davis has substantial experience and qualifications in determining that question. Currently, he is a consultant forensic clinical psychologist in full-time practice. He is also a consultant to Forensicare and the Children’s Court Clinic, and he is an instructor to the Behavioural Analysis Unit at the FBI.
Dr Davis has been a registered psychologist since 2004. He was one of the foundation clinicians at the Problem Behaviour Program with the Victorian Institute of Forensic Mental Health (Forensicare), where he worked, primarily, in the assessment of difficult to manage violent and sexual offenders and psychiatric patients. While at Forensicare, he provided seminars on risk assessment of sexual and violent offenders. In the past, he has provided lectures to forensic psychiatric registrars at Forensicare on the topics of risk assessment, paraphilic and sexual disorders, psychopathy, and offender profiling. Dr Davis has considerable experience in providing behavioural investigative advice to police agencies in cases of violent crime and sexually violent crime.
While, ultimately, the question, whether the applicant is a low risk to the sexual safety of the community, is a question that I must resolve, nevertheless, it is one the resolution of which does necessarily depend, to a large extent, on the particular areas of expertise held by Dr Davis.
In that regard, and without rehearsing the whole of Dr Davis’ report, which I have earlier summarised, it is to be noted that Dr Davis, applying the established tests, has concluded that the applicant is not psychopathic, and he does not possess personality features commonly associated with offenders who engage in callous or predatory offending.
The results of testing by Dr Davis, utilising the CPORT tests, are particularly relevant. In that respect, it is noteworthy that Dr Davis advised that only a low percentage — some 4 per cent — of persons who are apprehended by police, having accessed and downloaded child abuse material, subsequently reoffend. It is particularly noteworthy that Dr Davis, applying the results of the tests he administered to the applicant, considers that the risk of the applicant reoffending, in terms of accessing and downloading child abuse material, is ‘considerably lower’ than that low risk of reoffending. Further, Dr Davis’ evidence, that in fact only a very low percentage (some 2 per cent) of persons, who are apprehended with child abuse material, actually thereafter proceed to commit offences against children (‘contact offences’), is of particular importance.
Dr Davis has assessed that the applicant’s offending occurred in the context of a period in his life in which he was experiencing confusion as to his sexual identity, which has subsequently resolved. In addition, the applicant has developed an appropriate insight into the particularly harmful nature of the offending in which he engaged, which is an insight that he did not apparently possess at the time of the offending.
In conclusion, then, the expert opinion of Dr Davis is that the applicant does pose no more than a low risk of further child abuse material offending. The results of the testing, undertaken by Dr Davis, are to the effect that there is nothing to suggest that he poses anything other than a low risk for ‘contact sexual offending’. The applicant has not engaged in any repeat offending for which he was apprehended and sentenced in 2005.
Taking those matters into account, and notwithstanding the seriousness and extent of the applicant’s offending for which he was apprehended and convicted in 2005, ultimately, I am satisfied that he poses no more than a low risk to the sexual safety of the community. Specifically, I am satisfied that he is a low risk of engaging in accessing, producing, possessing or distributing child pornography, and that he is a low risk of engaging in any other form of sexual offending against children or adolescents.
It was not suggested by the respondent that it would not be in the public interest to suspend the applicant’s reporting obligations, if, as is the case, I was satisfied that the applicant poses a low risk to the sexual safety of the community. In the present case, there was no consideration attaching to the applicant’s offending, or to his circumstances during the last nineteen years, which would demonstrate that it is not in the public interest to suspend his reporting obligations.
Further, I do not perceive that there is any other factor or consideration, which would affect the exercise of the Court’s discretion to suspend the applicant’s reporting obligations, in circumstances in which I am satisfied of the two principal requirements specified by s 40(2) of the Act.
For the purposes of completeness, I should note that I do not consider that the provisions of the Charter, relied on by the applicant, have assisted in the resolution of the issues in this case.
Section 12 of the Charter concerns the freedom of a person to move within Victoria, and to enter and leave Victoria. The relevant provisions of the Act do not affect that freedom. The Act only requires notification of travel, which does not impede or affect freedom of entry into, movement within, or exit from Victoria.
Section 13 of the Charter provides that a person has the right not to have his or her privacy ‘unlawfully or arbitrarily interfered with’. The provisions of the Act, which may intrude into an aspect of the applicant’s privacy, could not be characterised as either unlawful or arbitrary.
Section 16 of the Charter provides that every person has the right of peaceful assembly. That right is not affected by the provisions of the Act. The requirement of the Act, to report certain information to police, does not affect, or in any way undermine, a person’s right of peaceful assembly.
Section 21 of the Charter specifies that every person has the right to liberty and security. Plainly, that right is not at all interfered with by the provisions of the Act, which apply to the applicant.
On the other hand, it may be noted, as I observed in the course of oral argument, that a number of provisions of the Charter are relevant, and apply, to the protection of children from the two levels of risk with which this case is concerned. Those provisions include: s 10 (protection of children from cruel, inhuman, or degrading treatment); s 12 (a child’s right to move freely within Victoria); s 13 (a child’s right to privacy); and, particularly, s 17 (the right of every child to such protection as in his or her best interest). I observe that I have been conscious of the protection of those fundamental rights of children in assessing whether, in the circumstances of this case, the applicant is a low risk in the two relevant domains that I have considered.
Conclusion
For the foregoing reasons, I have concluded that the reporting obligations of the applicant, as a registrable offender under the Act, should be suspended for the remainder of the applicant’s life.
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