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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re AJ (a pseudonym)

Details

AGLC: Re AJ (a pseudonym) [2024] VSC 769
Case: [2024] VSC 769
Decision Date: 13 December 2024

CaseChat Overview and Summary

The case of Re AJ involved the applicant seeking to suspend the lifelong reporting obligations imposed under the Sex Offenders Registration Act 2004 (Vic). The applicant, who had been convicted of making or producing child pornography, possessing child pornography, and transmitting child pornography, argued that he now posed a low risk of re-offending. The case was heard in the Supreme Court of Victoria, where the applicant challenged both the jurisdiction of the Magistrates' Court and the applicability of the reporting obligations while he resided outside Victoria.

The primary legal issues before the court were whether the applicant posed no or low risk to the sexual safety of the community, whether it was in the public interest to suspend the reporting obligations, and if the applicant had standing to bring the application while residing outside Victoria. The court had to determine whether the Magistrates' Court had made a jurisdictional error in ordering the reporting obligations for a period of eight years instead of for life as required by the Act.

The court found that the applicant's risk of re-offending was low, as evidenced by a psychological assessment, and that it was in the public interest to suspend the reporting obligations. The court also found that the Magistrates' Court had made a jurisdictional error in not imposing the lifelong reporting obligations as required by the Act. The order of the Magistrates' Court was therefore void. Furthermore, the court held that the applicant had standing to bring the application even while residing outside Victoria, as the Sex Offenders Registration Act 2004 continued to apply to him regardless of his place of residence.

The Supreme Court of Victoria granted the application to suspend the lifelong reporting obligations, finding that the applicant posed a low risk of re-offending and that it was in the public interest to do so. The court also found that the applicant had standing to bring the application despite residing outside Victoria, and that the Magistrates' Court's order was void due to jurisdictional error.

Orders