Re GH

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0072

Between:

GH	Applicant
-and-
CHIEF COMMISSIONER OF POLICE	Respondent

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING & ORDERS:	7 September 2023
DATE OF WRITTEN REASONS:	3 May 2024
CASE MAY BE CITED AS:	Re GH
MEDIUM NEUTRAL CITATION:	[2024] VSC 216

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CRIMINAL LAW — Application, pursuant to s 39(2) of Sex Offenders Registration Act 2004 (Vic) (“SORA”), to suspend registrable offender’s lifelong reporting obligations — In 2007, following guilty pleas to three charges of sexual penetration of child under 16, County Court released applicant on adjourned undertaking to be of good behaviour for 12 months, without conviction — Applicant thereby became a registrable offender with lifelong reporting obligations — Offending involved consensual sexual intercourse between complainant (female aged 15) and applicant (male aged 19 to 20) on three occasions in course of relationship — Offending occurred over 16 years ago — No prior or subsequent convictions, other than minor breach of reporting obligations — Applicant now married with children, stable employment, and supportive wife and employers — Psychologist opines applicant a low risk sexual offending — Complainant did not want applicant charged, and, today, a woman in her 30s, supports application to suspend reporting obligations — First application of its kind — Pre‑conditions in s 39 of SORA established — Court satisfied, in accordance with s 40(2) of SORA, that applicant “poses no risk or a low risk to the sexual safety of any member of the community” and that “it is in the public interest to suspend [applicant’s] reporting obligations”; and that discretion in s 40(1) to make order should be exercised in applicant’s favour — Application granted — Reporting obligations suspended for remainder of applicant’s life — Order prohibiting publication of applicant’s name, address, or any identifying information — Sex Offenders Registration Act 2004 (Vic), ss 39 & 40; Crimes Act 1958 (Vic), s 45; Open Courts Act 2013 (Vic), ss 17 & 18.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S. Parsons	Doogue + George Defence Lawyers
For the Respondent	Mr S. Payne	Victorian Government Solicitor’s Office

HIS HONOUR:

Overview

In November 2007, GH, a young man of 20, was presented in the County Court on three counts of sexual penetration of KL, a (female) child under 16.[1] The offences were committed in the course of a consensual sexual relationship between the two when KL was aged 15 and GH was aged between 19 and 20. KL did not want GH charged, and she declined to make a statement to police. But GH largely made the case against himself by his admissions to police, and he pleaded guilty. After hearing a plea in mitigation, the judge released GH, without conviction, on an adjourned undertaking to be of good behaviour for 12 months.
[1]Contrary to s 45(1) of the Crimes Act 1958 (Vic) (as it stood at the relevant time).

As a result of those findings of guilt, by operation of the Sex Offenders Registration Act 2004 (Vic) (“the SORA”), GH became a “registrable offender” subject to reporting obligations for the rest of his life.[2] The judge had no discretion in the matter.
[2]See ss 3, 6, 7 and 34(1)(c)(i) of the Sex Offenders Registration Act 2004 (Vic).

Fifteen years and five months later, on 21 April 2023, GH (by then aged 36) filed an application, pursuant to s 39(2) of the SORA, for an order suspending his reporting obligations, permanently. This was the first application of its kind in this State.

Provided certain threshold matters exist (which is the case here), a registrable offender may bring an application under s 39(2). Section 40(1) provides that, on such an application, “the Supreme Court may make an order suspending the registrable offender’s reporting obligations”. Section 40(2) provides that “[a] court must not make an order under [s 40(1)] 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”. Section 40(3) lists a range of matters which a court must take into account in deciding whether to make an order under s 40(1).

The application came on before me for hearing on 7 September 2023. After considering the evidence — which included a detailed report and viva voce evidence from a psychologist in which she opined that GH presented a “low” risk of sexual offending in the future — and the submissions made by counsel for each party, I was satisfied that, having regard to the considerations in s 40(3), the tests in s 40(2) were met and that I should exercise the discretion to make the order sought.[3] Accordingly, at the conclusion of the hearing, I granted the application and ordered that GH’s reporting obligations be suspended forthwith and for the remainder of his life.
[3]I was also satisfied that the threshold requirements of s 39(2) were met. See below.

I also made a proceeding suppression order prohibiting publication of GH’s name, address and other information likely to lead to his identification.[4]
[4]Pursuant to s 17 of the Open Courts Act 2013 (Vic).

I indicated that I would publish written reasons at a later time. These are those reasons.[5]
[5]I have couched these reasons largely in the present tense, as if delivered on the day of the hearing.

Judge’s reasons for sentence

GH was aged around 19‑and‑a‑half and KL was just 15 when their relationship commenced in about mid‑2006. The circumstances of GH’s offending — which, according to the presentment, occurred between 1 December 2006[6] and 11 May 2007 — and the various considerations relevant to sentence were detailed by the judge in her comprehensive sentencing remarks. It is convenient to extract some of those remarks now (albeit in edited form):
[6]In truth, the only evidence on the point suggests that the first act of intercourse occurred less than two or three months before the third (and last) act, which occurred on 11 May 2007, which means the first act could not have occurred before February 2007. See below.

[1] [GH is] to be sentenced in respect of three counts of sexual penetration of a child under the age of 16 contrary to s 45(1) of the Crimes Act 1958. The maximum penalty is [imprisonment for] 25 years.[7] [GH] pleaded guilty when arraigned [earlier this month before another judge].
[7]In fact, at the relevant time, the 25‑year maximum penalty applied only where the child was under the age of ten (Crimes Act 1958 (Vic), s 45(2)(a)). The maximum penalty for the offence where the child was aged over ten and was not under the care, supervision or authority of the accused, which was GH’s case, was ten years’ imprisonment (see s 45(2)(c) read with s 45(2)(a) and (b)). Today, the equivalent offence is found in s 49B of the Crimes Act 1958 (Vic), which carries a maximum penalty of 15 years’ imprisonment and has a standard sentence of six years’ imprisonment. See below.
[2] The relationship developed over a period of time and with the knowledge of both [GH’s] parents and [KL’s] parents. [GH] did not treat [KL] as a plaything. [He] obviously cared very much for her. [He] and [KL] had developed a sexual relationship. There are three acts of penetration the subject of the presentment. The third count relates to a specific episode [on 11 May 2007], when [KL’s] sister told her mother she was worried about what was going on in [KL’s] bedroom. [KL’s] mother came into the bedroom in which [GH] and [KL] were, to find [the two of them] in the act of sexual intercourse. The other two counts, Counts 1 and 2, relate to two other discrete unspecified acts of sexual penetration, which [GH] admitted in the record of interview.
[3] … The offences to which [GH has] pleaded guilty are very serious. Although the victim in this matter … was aged 15 and readily consented to [the] sexual acts, her consent is of course no defence to these crimes. That is because the underlying philosophy of this legislation is directed towards the protection of all children below the age of 16, and that includes 15‑year‑olds. [GH was] aware that [KL] was 15.
[4] Ordinarily, aspects of general deterrence and denunciation and protection of the community are significant. [Her Honour then referred to the Court of Appeal’s decision in R v Parente. That matter involved a 31‑year‑old man who sexually penetrated the 13‑year‑old daughter of a friend. Her Honour extracted the following passage from the judgment of Winneke P, with whom Callaway JA and Hampel AJA agreed:[8]]
[8]R v Parente (Unreported, Court of Appeal, 20 February 1996) at 3‑4.
It is sometimes suggested that, in this world, thirteen‑year‑old girls are able to look after themselves and that the relevant provisions of the Crimes Act are somewhat out of touch with modern reality. The clear answer to that suggestion is that the law still exists with justification to prevent the moral corruption of children at the hands of predators who seek to take advantage of them. The offence, of course, will cover a wide variety of circumstances and facts, as was put by Gillard J in the case of Bakker as long ago as 1977 ... His Honour referred to comments made by Lawson LJ in the English case of Taylor, and he quoted the following:
What does not seem to have been appreciated by the public is the wide spectrum of guilt which is covered by the offence known as having unlawful sexual intercourse with a girl under the age of 16. At one end of the spectrum is the youth who stands in the dock, maybe 16, 17 or 18 years of age, who had what started off as a virtuous friendship with a girl under the age of 16, a virtuous friendship which ended with their having sexual intercourse with one another. At the other end of the spectrum is the man in a supervisory capacity, schoolmaster, social worker, who sets out deliberately to seduce a girl under the age of 16 who is in his charge. The penalties appropriate to the two types of case to which I have just referred are very different indeed.

His Honour was, in my opinion, entitled to take the view in this case that the applicant’s conduct was towards the serious end of the spectrum.

[5] The offences, as I have already said, are serious, but I consider that they fall at the lower end of the scale for this type of offending in accordance with the principles to which I have just referred.
[6] There is no [victim impact statement] in this matter. Indeed, as I understand the facts, [KL] did not initiate contact with the police and has never made a statement.
[7] Reference was made to a number of uncharged acts, that is, that there was an ongoing sexual relationship. Those facts were placed before me to explain the context in which the charged acts were committed.
…
[9] [GH is] to be sentenced today in respect of the counts upon which [he has] pleaded guilty and the use of the uncharged acts is confined for the purposes that I have explained. It cannot be said in respect of the charges to which [he has] pleaded guilty that they were isolated acts and once committed were immediately regretted and never repeated. …
[10] As was pointed out by [GH’s] counsel, … there are a number of mitigating factors. A folder of materials was tendered …, demonstrating the sincerity of [GH’s] feelings for [KL] and attesting to [his] prior good character and prospects for rehabilitation. [Counsel] suggested that a number of factors combined to justify releasing [GH] on an undertaking to be of good behaviour. In short, he relied on [GH’s] early plea of guilty, … remorse, … prior good character and personal circumstances, together with [his] excellent prospects for rehabilitation. It is also significant that [GH is] a youthful offender.
[11] The learned prosecutor … very frankly and properly conceded that a term of imprisonment is not warranted in this case and that all sentencing options are open. I am very grateful to the Crown for its sensible approach.
[12] I shall now return to each of the relevant considerations.
[13] [GH is] now aged 20. At the time of committing the offence [he was] a young offender. As to [GL’s] occupation, [he is an apprentice in a trade], and I accept that [he has] solid prospects for continued stable employment. I accept that [he is] of prior good character and sentence [him] on that basis. I accept that [he is] remorseful for [his] conduct and that [he has] gained some insight. I accept [his] mother’s evidence that [he has] matured and now fully appreciates the gravity of [his] conduct.
[14] [GH has] pleaded guilty. [He is] entitled to a statutory discount by reason of [his] plea. I accept the plea was made at the earliest opportunity. Indeed, [GH] made full and frank admissions to the police when they interviewed [him]. [His] plea indicates remorse and has avoided the cost of a trial. Witnesses have been spared the ordeal of giving evidence [at a trial]. I think, in a case such as this, this is in fact a very powerful factor in mitigation. [His] plea has facilitated the course of justice and there is social utility in it.
[15] All of these factors, in my view, add to [GH’s] excellent prospects for rehabilitation.
[16] I agree with [GH’s] counsel that [he poses] little, if any, risk of re‑offending. As I understand it, there are no pending charges.
[17] I am bound to consider the significance of general deterrence and the likelihood of [GH’s] re‑offending and protection of the community from [him], and in all the circumstances to impose a just punishment. On the question of general deterrence, although it is ordinarily a significant sentencing factor, its weight is reduced in [this] case because of [GH’s] youth. In fact, because of [his] youth, the overriding sentencing objective is [his] rehabilitation. I accept that [his] conduct was not predatory in nature.
[18] As to specific deterrence, I do not think this is really an issue. I accept [his] mother’s sworn evidence that [he has] learnt [his] lesson and appreciate[s] the gravity of [his] offending and that [he is] unlikely to offend in a like way, if at all.
[19] On the question of the protection of the community, the community will be protected from [GH] if [his] rehabilitation is achieved. I think, as I have said
already on a number of occasions, [he is] unlikely to re‑offend.
[20] The serious offender provisions do not apply because [GH is] a young offender.
[21] As I said, … counsel has urged that I release [GH] on an undertaking to be of good behaviour and that I do this without conviction. Among the matters I must consider in the exercise of my discretion as to whether or not a conviction should be recorded are the nature of the offence, [GH’s] character and past history and the impact of the recording of a conviction on [his] economic or social wellbeing or on [his] employment prospects. Taking all of these matters into account, I am of the view that the disposition should not involve the recording of a conviction.
[22] I think that there are compelling reasons to justify the disposition sought by [GH’s] counsel. I place great weight on the concession made by the Crown and the circumstances of the case and all of the matters to which I have just referred.

After her Honour imposed sentence, she indicated that, by reason of the findings of guilt, GH had become a registrable offender under the SORA and that the mandatory reporting period was for life. The transcript of the sentence indicates that GH then signed an acknowledgment concerning receipt of his obligations under the SORA.

GH had become a registrable offender because he had been sentenced by a court for a “registrable offence” — in this case, a “Class 1 offence committed as an adult”.[9] He was required to comply with the reporting obligations imposed by Part 3 of the SORA for the remainder of his life because he had been found guilty of two or more Class 1 offences.[10]
[9]See ss 3, 6 and 7 and clause 1 of Schedule 1 of the Sex Offenders Registration Act 2004 (Vic).
[10]See s 34(1)(c)(i) of the Sex Offenders Registration Act 2004 (Vic).

GH’s reporting obligations

I turn next to the main reporting obligations GH has had since 2007, commencing with the requirement that he report certain information to the Chief Commissioner of Police.

In particular, by operation of the SORA, soon after his sentence, GH was required to report his “personal details” to the Chief Commissioner, and was also required to make these reports annually thereafter.[11]
[11]See ss 12, 14 and 16 of the Sex Offenders Registration Act 2004 (Vic).

As defined, these “personal details” include:[12]
[12]See s 14 of the Sex Offenders Registration Act 2004 (Vic) (the terms of which have expanded over the years since GH was sentenced to include details such as telephone number, email address and more details about children with whom contact has been had).

a) GH’s name, date of birth, address, telephone number, email address, Internet service provider, and Internet, messaging or chat room user names;

b) the name, age, address and telephone number of each child with whom he has contact;

c) the nature and address of his employment and his employer’s name;

d) details of his affiliation with any club or organisation that has child membership or participation;

e) the make, model, colour and registration number of any motor vehicle or caravan he owns or is generally driven by him;

f) details of any tattoos; and

g) any passport details.

In addition, he must report any change in his personal details within seven days after that change occurs.[13]
[13]See s 17 of the Sex Offenders Registration Act 2004 (Vic).

Further, if GH intends to leave Victoria for two or more consecutive days to travel elsewhere in Australia, or if he intends to travel out of Australia, then, at least seven days before leaving Victoria, he must provide details of those travel plans, including the addresses at which he intends to reside.[14] If those plans change while he is out of Victoria, he must report those changes as soon as practicable.[15] Within seven days of his return to Victoria, he must report the fact of his return.[16] If he intends to leave Victoria to travel elsewhere in Australia on an average of at least once a month, then, irrespective of the length of any such absence, he must report, in general terms, the reason for travelling and the frequency and destinations of the travel.[17]

Events before and since the offending

[14]See s 18 of the Sex Offenders Registration Act 2004 (Vic). These requirements have also become more restrictive than they were when GH was sentenced. In particular, it used to be that the requirement to report an intention to leave Victoria arose if the planned travel was for 14 or more consecutive days.

[15]See s 19 of the Sex Offenders Registration Act 2004 (Vic). These requirements have also become more restrictive than they were when GH was sentenced.

[16]See s 20 of the Sex Offenders Registration Act 2004 (Vic). These requirements have also become more restrictive than they were when GH was sentenced.

[17]See s 21 of the Sex Offenders Registration Act 2004 (Vic).

Materials before the Court

I turn now to the other relevant events and circumstances of GH’s life before and since the imposition of the reporting obligations.

The evidence for these matters comes from the following materials before the Court:

a) an affidavit of GH;

b) GH’s interview with police (in late‑May 2007) in relation to the offending;

c) the County Court judge’s reasons for sentence;

d) an affidavit of Superintendent John Kearney (who is the Superintendent at the Sex Offenders’ Register);

e) a report and viva voce evidence of clinical and forensic psychologist Dr Angela Sorotos;

f) a reference from GH’s current employers; and

g) a reference from GH’s wife.

Family and early life

GH grew up in country Victoria as the eldest of five children. He remains close to his parents and his siblings and their partners.

He had a happy and secure childhood. He enjoyed being with his family, playing sports and mixing with his friends.

Education and early employment

GH liked school but left early (after Year 11) to complete an apprenticeship. He worked in his chosen trade for some years, and then as a labourer, before taking on a management role in his late‑20s.

Criminal history

Prior to the offending in question, GH had no criminal history.

In his teenage years, he lost his driver’s licence for minor driving infringements and an accumulation of demerit points, but he has not lost his licence since he was 20.

In 2012, GH was fined $250, without conviction, on two charges of failing to comply with his reporting obligations under the SORA. These matters related to his failure to report a change of address and a change in his employment. The penalty imposed is commensurate with the fact that these were very minor breaches of his reporting obligations.

GH’s current employment, and the views of his employers

GH’s current employers, for whom he has worked as a production manager since early in 2021, are aware of this application. One of those employers has known GH for several years; the other, it seems, has known him since his employment with the company. They provided the Court with a joint letter supportive of GH and of his application.

The main reasons GH’s employers asked him to join their company were “his work ethic, integrity and dependability”. They believe he “demonstrates a high level of responsibility, accountability and empathy towards his team members”. They also regard GH as an “honest trustworthy person, [a] hard working employee, [a] devoted husband and [a] dedicated father to his three children”. He has “a secure position within [their] company”. They regard GH as “more than an employee or colleague”; to them, he is also “a trusted friend who always shows good judgment and respect in his interactions”.

His employers added that they are “extremely happy and comfortable for [their] children to be around [GH], both in the workplace and in social situations”. In their opinion, GH is an “exceptional person who poses no risk to [their] family”.

GH’s family life, and the views of his wife

GH has been married to MN for several years. Together, they have three children under seven years of age. MN, who works as a nurse, provided a letter supportive of GH and his application to suspend his reporting obligations.

GH (when 21) and MN (when 19) met in mid‑2008 and have been in a relationship ever since. Two months into their relationship, GH made MN aware that he was on the Sex Offenders’ Register, and the reasons why. He gave her all of the relevant documentation he had so that she was fully aware of the seriousness of the situation. MN satisfied herself that, at the relevant time, GH believed he was in love with KL and they were in a consensual relationship.

Over the 15 years GH has been with her, MN has found him to be “supportive, caring and … an amazing father to [their children]”. He has consistently been in full‑time work and has always prioritised MN and their children.

Being on the Sex Offenders’ Register has had a “dramatic impact” on GH, MN and their children. In MN’s view, the “reporting and surprise visits from [the relevant authority] over the years have been a cruel and painful reminder of the severity of a mistake [GH] made as a young adult”. MN considers that GH has “always taken full responsibility and always understood his actions and how he ended up here”.

MN explained the added significance in their lives of the reporting obligations now that their children are starting school, forming friendships and joining sporting clubs. GH feels he has to avoid attending most of their children’s events because he is concerned about others learning that he is on the Sex Offenders’ Register. MN considers that the “emotional toll” on GH is “immense and extremely hard to watch”. MN has also found this has been very difficult for her and their children.

Evidence of Dr Sorotos

Report of 27 February 2023

I turn now to the evidence of Dr Sorotos, commencing with her comprehensive report of 27 February 2023.[18]
[18]As marked, the report was dated 22 February 2023, but, in her viva voce evidence, Dr Sorotos corrected this to 27 February 2023.

Dr Sorotos assessed GH over four hours in person on 2 February 2023. For this purpose, she was provided with the following documents:

a) a letter of instruction from GH’s solicitors;

b) the police brief of evidence, including transcript of the record of interview, and the presentment;

c) the County Court judge’s sentencing remarks;

d) a chronology; and

e) a personal history questionnaire completed by GH.

Dr Sorotos also took her own detailed history from GH. This included his current circumstances, his family and developmental history, his educational and employment history, his medical and psychiatric history, his substance abuse history, his relationship history, his sexual history, his account of the offending, and his compliance history vis‑à‑vis his reporting obligations. It is unnecessary to set out those details in these reasons.

Dr Sorotos conducted psychological testing by use of the Paulhus Deception Scale, the Brief Psychiatric Rating Scale, and the Personality Assessment Inventory. She also conducted a risk assessment for sexual violence by using various tools, namely the Static 99, the Risk for Sexual Violence Protocol (“RSVP”), and the Hare Psychopathy Checklist — Screening Version (“PCL‑SV”).

Dr Sorotos considered that GH’s total score on the PCL‑SV was “well below the cut off for psychopathy”, as it was in the third percentile of comparable individuals. She opined that, based on the Static 99, GH scored as a low to moderate risk of future sexual offending; and that, according to the RSVP, he presented with a low number of risk markers for further sexual offending.

Dr Sorotos concluded her report in the following terms:[19]

[115] With regards to the nature of [the] sexual offending, I did not find evidence in this case of any sexual deviancy or a paedophilic disorder. Indeed, the offending took place across one relationship when the complainant was of pubescent/post‑pubescent age and [GH] was five years older than [her] at the time.[20] While this certainly does not excuse [GH] from his culpability, it also deviates greatly from the hallmark of a deviant or predatory sexual offender where risk of future offending is considerably higher. Important risk factors such as escalation, use of violence or pursuing stranger victims were not present in this case. Indeed, accounts from a study by Lippert, Clary, Bleoaja, Walsh and Jones (2020) outlined that characteristics of victim‑perpetrator relationships were statistically significantly different depending on offender age, where victims were with offenders 21 years and over compared to offenders under 21 years. These characteristics included fear of the offender (16% versus 2%), and multiple forms of coercion (34% versus 12%). The study emphasised that victims with offenders under 21 years of age were significantly more likely to give descriptions of the relationship that suggested no coercion than were victims with offenders 21 and over (50% versus 28%). Forms of coercion were defined as physical threat, physical violence, emotional threat, giving money or gifts, giving alcohol/drugs for/as part of sex, promising commitment, pressuring the adolescent into sex, including by begging, and telling the adolescent to keep the relationship secret. I note that I did not find evidence of any of these characteristics in the current assessment, and in fact when the complainant spontaneously attended upon [GH’s] home to ask to reside with him, he refused this request. Importantly, [GH] has not [offended again] and there has been an extended period of desistance (over 15 years), which augments for a positive future prognosis of low risk.
[116] To this end, regarding risk of future sexual offending, a thorough consideration of risk factors indicated that while [GH] poses a low to moderate risk according to the Static‑99 and a low risk according to the RSVP, I am of the view that when considering the clinical data in its totality … a more accurate assessment of risk of future sexual offending equates to a low risk.[21] [GH] has never been charged with any offending before or after he was apprehended for the index offences. [GH] has few of the identified risk factors associated with recidivism amongst contact sexual offenders, and there has now been a period of desistence of over 15 years, meaning he is now as likely to reoffend as the average male offender who has never previously sexually offended. Last, while I did not complete a formal cognitive assessment on [GH], I did not find any evidence that would necessitate such an assessment, and therefore did not find any evidence that [he] would be unable to comply with his obligations in the future.
[117]Accordingly, the following recommendations are made:
a. I would suggest that [GH] may benefit from speaking with a mental health professional, particularly in light of his history of suicidal ideation. Ongoing psychotherapy will also support [GH] in managing his emotional distress as it relates to being on the Register and the loss of freedoms associated with this;
b. No offence specific treatment is indicated in [GH’s] case. Indeed, there is evidence to suggest that placing low risk offenders with moderate to high risk offenders can actually increase their risk over time.

[19]Report of Dr Sorotos (27 February 2023) at [115]‑[117] (italicisation included in the original; bold italicisation added).

[20]The age gap was in fact just under four‑and‑a‑half years. See below.

[21]My emphasis in bold italics.

Most importantly, as I have highlighted in the foregoing extract from her report, Dr Sorotos concluded that, while GH poses a low to moderate risk according to the Static‑99 and a low risk according to the RSVP, she is of the view that, when considering the clinical data in its totality, a more accurate assessment of risk of future sexual offending equates to a low risk.

Viva voce evidence of 7 September 2023

Dr Sorotos gave viva voce evidence as well.

In her evidence‑in‑chief, Dr Sorotos indicated that she wished to add three matters of clarification to her report.

First, she explained that, notwithstanding that the Static 99 is a test based on static factors, special consideration is given to offenders when there has been a ten‑year period of desistance (as here — the period of desistance being in excess of 15 years).

Second, she also emphasised that the Static 99 is intended to be just one tool, and not the only tool, used in a broader clinical evaluation.

Third, she explained that the manual for the Static 99 states that it is not an applicable tool if the sexual relations were consensual and the age gap between the complainant and the offender is three years or less.

Dr Sorotos noted that, given the age difference in this case (which, while she observed was five years, was in fact about four‑and‑a‑half years), she thought it appropriate to take a conservative approach and apply the Static 99, which indicated a low to moderate risk. However, when considering “the overall clinical picture of risk”, she considered it appropriate to adjust the final rating of risk as low to reflect the foregoing considerations, which she regarded as matters of commonsense.

Dr Sorotos confirmed that her opinion remained as expressed in her report — namely, that GH was a low risk of sexual offending.

In cross‑examination by counsel for the Chief Commissioner of Police, Dr Sorotos agreed that the author of the Static 99 opines that a revised version of the tool — described as the “99‑R” (for short) — is the preferred version to apply. However, she explained that there is some fairly significant conjecture among those in her profession about the reliability of the recidivism statistics in the 99‑R, which has caused her to prefer the Static 99. That said, she did not think the result under the 99‑R would be significantly different.

When asked whether her assessment of a low risk meant that she placed more weight on dynamic factors, Dr Sorotos answered that her overall assessment encompasses both the Static 99 and the RSVP (which, in the main, assesses dynamic factors), as well as the PCL‑SV and the considerations in the literature identified in her report. She agreed that there is a component of her conclusion as to risk that is based on “[her] opinion of [her] clinical assessment”.

Dr Sorotos explained that the taxonomy of risks under the Static 99 is: low, low to moderate, moderate, moderate to high, and high. She said that a person is never considered to be no risk. Rather, the lowest risk rating under this tool is low.

Dr Sorotos said she is aware that the statutory threshold for an offender to make a successful application of the kind made by GH is that there must be no risk or a low risk to the sexual safety of one or more persons or of the community.

Counsel took Dr Sorotos through the factors that, in deciding whether to make an order suspending a registrable offender’s reporting obligations, a court must take into account under s 40(3) (which are set out below). She considered that those factors mentioned in paragraphs (a) to (e) of s 40(3) would come into consideration under both the Static 99 and the RSVP, but a failure to comply with a technical requirement of the reporting obligations (as occurred in GH’s case in 2012) would be considered only under the RSVP.

As for the considerations in paragraph (f) (“any other matter the court considers appropriate”), counsel asked Dr Sorotos whether the human rights of an applicant for suspension would come into her calculations. Dr Sorotos did not think that that would be a matter informing an assessment under either the Static 99 or the RSVP. She said she might consider the victim’s attitude to the application, but this would not be weighted heavily under either tool, simply because it is not a factor that is specified in them. She agreed that there may well be numerous matters to be taken into account under paragraph (f) that are outside the scope of her assessments under the Static 99 or the RSVP.

Applicable legislative provisions

Next, I turn to the legislative provisions that govern GH’s application, which are found in Division 6 of Part 3 of the SORA.

However, before turning to those particular provisions, I shall set out s 1 of the SORA:

Purpose and outline
(1) The purpose of this Act is—
(a) to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time—
(i) to reduce the likelihood that they will re‑offend; and
(ii) to facilitate the investigation and prosecution of any offences that they may commit;

(b) to prevent registrable offenders working in child‑related employment;
(c) to empower the IBAC to monitor compliance with Parts 3 and 4 of this Act;
(d) to provide for the making of prohibition orders to prevent registrable offenders engaging in certain conduct.

(2) In outline this Act—
(a) provides for the establishment of a Register of Sex Offenders; and
(b) requires certain offenders who are sentenced for registrable offences on or after 1 October 2004 to report specified personal details for inclusion in the Register (and extends this requirement to certain offenders sentenced for registrable offences before that date); and
(c) enables the sentencing court to order juvenile offenders and offenders who commit certain sexual offences against adult victims to comply with the reporting obligations of the Act; and
(d) requires those offenders to keep those details up to date, to report those details annually and to also report certain of their travel plans; and
(e) imposes those reporting obligations for a period of between 4 years and life, depending on the number, severity and timing of the offences committed, and the age of the offender at the time an offence was committed; and
(f) allows for the recognition of the period of reporting obligations imposed under laws of foreign jurisdictions; and
(g) makes it an offence for registrable offenders to work in child‑related employment; and
(h) empowers the IBAC to monitor compliance with Parts 3 and 4 of this Act;
(i) provides for the making of prohibition orders to prevent registrable offenders engaging in certain conduct.

Section 39 is in the following terms:

Supreme Court may suspend certain registrable offenders’ reporting obligations
(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.

Relevantly, s 40 provides as follows:

Order for suspension
(1) On the application under section 39(2), the Supreme Court may make an order suspending the registrable offender’s reporting obligations.
…
(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.

…

Section 41 provides that the Chief Commissioner of Police is a party to an application under s 39(2) and may make any submission to the Supreme Court in respect of the application. (That is why the Chief Commissioner is the respondent to this application.)

Section 43 provides that a registrable offender in respect of whom the Supreme Court refuses to make an order under s 40(1) is not entitled to make a further application to the Court until five years have elapsed from the date of the refusal, unless the Court otherwise orders at the time of the refusal.

Threshold requirements under ss 39(1) and (2) are satisfied

For the reasons that follow, there is no dispute that GH’s application meets the threshold requirements of s 39:

a) First, GH is a registrable offender who is required to continue to comply with the reporting obligations imposed by Part 3 of the SORA for the remainder of his life (s 39(1)).

b) Second, more than 15 years have passed since he was sentenced for a registrable offence (s 39(2)(a)).

c) Third, he 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 (s 39(2)(b)).

d) Fourth, he is not on parole in respect of a registrable offence (s 39(2)(c)).

Thus, GH is eligible to apply to this Court for an order under s 40(1) suspending his reporting obligations.

The required approach to ss 39 and 40 of the SORA

Introduction

The next questions are whether, having regard to the evidence and the matters specified in s 40(3) of the SORA, I am satisfied of the two requirements set out in s 40(2), and, if so, whether I should exercise the discretion to make an order under s 40(1).

In written submissions filed ahead of the hearing, GH’s solicitor Ms Ramsay submitted that, in light of the evidence before the Court (including the opinion of Dr Sorotos in her report) and the considerations in s 40(3), I should be satisfied that the two requirements of s 40(2) are met and that, accordingly, I should make the order sought by GH, and that the period of suspension should be for life.[22] Ms Parsons, who appeared at the hearing and filed written submissions in reply to those filed on behalf of the Chief Commissioner, made the same ultimate submission.
[22]Applicant’s submissions (20 April 2023) at [55]‑[56].

In written submissions filed ahead of the hearing, Mr Payne, who appeared for the Chief Commissioner, explained that his client neither opposes nor consents to the making of an order suspending GH’s reporting obligations.[23] Rather, his client’s position is neutral.[24] More particularly, Mr Payne submitted that, on the evidence, it would be open to the Court to conclude that GH presents as no risk or a low risk to the sexual safety of one or more persons or the community; and that, given a range of matters (which I shall detail later), it would be open to the Court to find that it is in the public interest to suspend GH’s reporting obligations.[25] Having heard Dr Sorotos give her viva voce evidence, Mr Payne maintained the same position in his oral submissions.
[23]Respondent’s submissions (19 July 2023) at [A] & [53].
[24]Respondent’s submissions (19 July 2023) at [53].
[25]Respondent’s submissions (19 July 2023) at [54] & [88]‑[102].

Before turning to my findings on those issues, I should address counsel’s submissions and my conclusions as to the required approach to ss 39 and 40.

Applicant’s submissions

In her written reply, Ms Parsons submitted that, notwithstanding the different wording of the equivalent legislation in South Australia, an adapted version of the “three‑stage process” set out by Nicholson J in C, M v Commissioner of Police[26] (“CM”) should be applied by this Court in determining an application under s 39(2) of the SORA to suspend reporting obligations.[27]
[26]C, M v Commissioner of Police (2014) 121 SASR 106.
[27]Applicant’s reply (23 August 2023) at [8].

In particular, she submitted that the following approach should be applied:[28]
[28]Applicant’s reply (23 August 2023) at [11].

1) The first step is to determine whether the applicant meets the threshold requirements under ss 39(1) and (2) so as to render him or her eligible to make an application.[29]

2) Second, if those threshold requirements are met, “the Court must consider whether the statutory test of the level of risk under s 40(2)(a) is made out by [the] applicant”. If the Court is so satisfied, then “it would almost always follow that it is in the public interest [within the meaning of] s 40(2)(b), and that such a conclusion is ‘ordinarily highly favourable’[30] to the exercise of the discretion”.

3) Third, “[f]indings with respect to matters to be taken into account under s 40(3) are relevant to the making of any finding under s 40(2)(a) and (b) and to the exercise of the discretion generally”.

[29]While counsel mentioned s 40(2) at this point in her written reply, I took this to be a typographical error and that she had meant to refer to ss 39(1) and (2).

[30]Counsel referred to C, M v Commissioner of Police (2014) 121 SASR 106 at 109[12].

Returning to the second stage, Ms Parsons summed up her submission as being, in essence, that the “public interest” consideration in s 40(2)(b) does not require a separate step. This is, she said, “because an application will almost always be in the ‘public interest’ if the level of risk [under s 40(2)(a)] is made out by the applicant and factors included in s 40(3) have been met satisfactorily”.[31]
[31]Applicant’s reply (23 August 2023) at [12].

Ms Parsons submitted that is clear that the dominant consideration in determining applications to suspend reporting obligations is risk. This submission may be regarded as deriving support from s 1(1)(a)(i) of the SORA, which, as we have seen, provides that one of the purposes of the SORA is “to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time … to reduce the likelihood that they will re‑offend”. In Ms Parsons’ submission, if an applicant is assessed as no or a low risk, it would follow that an application is therefore in the “public interest”. She added that it “is difficult to envisage a scenario [in which] an application [would fail] the ‘public interest’ threshold where [the] Court has made a finding of no risk or [a] low risk” of the relevant kind. She added that the Chief Commissioner had not identified any such possible scenario in his submissions.[32]
[32]Applicant’s reply (23 August 2023) at [14].

As I understood her, Ms Parsons’ oral submissions were to the same effect.

Respondent’s submissions

In his written submissions, Mr Payne referred to CM, too. In addition, he referred to the judgment of Crowe AJ in SP v The Chief Police Officer[33] (“SP”), which concerned the equivalent provisions in the Australian Capital Territory (“the ACT”), and in which his Honour also considered CM and several subsequent South Australian decisions concerning that State’s equivalent provisions.[34]
[33]SP v The Chief Police Officer [2020] ACTSC 114.
[34]Respondent’s submissions (19 July 2023) at [28]‑[37].

Having referred to those authorities, while Mr Payne, like Ms Parsons, suggested a three‑stage approach to applications under the Victorian provisions,[35] he differed from her as to the second stage. In particular, he submitted that, if satisfied of the test concerning risk under s 40(2)(a), “there is no obligation on [the] Court to grant a suspension application, and such a conclusion cannot be considered as ‘ordinarily highly favourable’ to the exercise of the discretion as the Court must then consider the public interest test under s 40(2)(b)”.[36]
[35]Respondent’s submissions (19 July 2023) at [38]‑[41].
[36]Respondent’s submissions (19 July 2023) at [40].

In his oral submissions, Mr Payne accepted that, if an applicant were found to have satisfied the risk test in s 40(2)(a), that “ordinarily [would] be highly favourable to the exercise of the discretion”. Further, he accepted that, where the risk test was satisfied, “it would be [only] in potentially extreme circumstances where it [would not be] in the public interest [to suspend the registrable offender’s reporting obligations]”.

Nevertheless, as I understood him, Mr Payne submitted that, in circumstances where the public interest requirement found in s 40(2)(b) is, as a matter of ordinary statutory construction, a separate requirement about which this Court must be satisfied before a suspension order may be made, it would be wrong to fail to consider the public interest test separately; and it would be wrong to treat satisfaction of the risk limb in s 40(2)(a) as amounting, as a matter of law, to satisfaction of the public interest requirement.

Consideration

In my opinion, in construing these provisions of the SORA and in considering the reasoning of courts in other jurisdictions in respect of similar legislation, Mr Payne was right to emphasise the important similarities and differences between the provisions of the SORA and the equivalent provisions in South Australia and the ACT.

Section 37(1) and (2) of the Child Sex Offenders Registration Act 2006 (SA) (“the SA Act”) and ss 95 and 96 of the Crimes (Child Sex Offenders) Act 2005 (ACT) (“the ACT Act”) are in almost identical terms to ss 39(1) and (2) of the SORA. Further, ss 38(1), (2) and (3) of the SA Act and ss 97(2), (3), (4) and (5) of the ACT Act are in terms very similar to those in ss 40(1), (2) and (3) of the SORA, except that s 38(2) of the SA Act provides only that “[t]he Court must not make the order unless it is satisfied that the registrable offender does not pose a risk to the safety and well‑being of any child or children”, and except that s 97(3) of the ACT Act provides only that “[t]he court may make the order only if satisfied that the registrable offender does not pose a risk to the sexual safety of [one] or more people or of the community”.[37] Thus, unlike s 40(2) of the SORA, s 38(2) of the SA Act and s 97(3) of the ACT Act do not include the additional requirement in s 40(2)(b) that the Court must not make a suspension order unless it is satisfied that “it is in the public interest to suspend the registrable offender’s reporting obligations”.[38]
[37]As Mr Payne pointed out in his submissions (at [28] & [31]), other jurisdictions in Australia have similar legislative regimes, too, none of which have an express public interest requirement. See the Child Protection (Offender Reporting and Registration) Act 2004 (NT), ss 41 & 42; the Community Protection (Offender Reporting) Act 2004 (WA), ss 51, 52 & 53; the Community Protection (Offender Reporting) Act 2005 (Tas), ss 27, 28 & 29; and the Child Protection (Offenders Registration) Act 2000 (NSW), s 16.
[38]Another difference is that, consistently with the title of the SA Act, s 38(2) is concerned with the “risk to the safety and well‑being of any child or children”, whereas s 40(2)(b) of the SORA is concerned with a broader class, namely the “risk to the sexual safety of one or more persons or of the community”.

In 2014, in CM, Nicholson J construed ss 37 and 38 of the SA Act in the following ways:[39]

[11] The power to make the order, as conferred by s 38(1), is discretionary. By the use of the word “may”, in the context of the legislation as a whole, the legislature has indicated that a court is to exercise a judicial discretion. However, any exercise of this discretion by the Court is constrained by the requirements set out in s 37(2), s 38(2) and s 38(3). In addition to the threshold requirements in s 37(2), the Court must not make the order unless it is satisfied that the registrable offender does not pose a risk to the safety and well‑being of any child or children (s 38(2)) and the Court, in deciding whether to make the order, must take into account the matters set out in paragraphs (a)‑(g) of s 38(3).
[12] A court will not be obliged to make the order in the event that it is satisfied of the requirement in s 38(2); the making of the order will remain discretionary. Nevertheless, whilst lack of satisfaction under s 38(2) is described as a matter of preclusion, a finding of satisfaction ordinarily will be highly favourable to the exercise of the discretion. Findings with respect to the matters to be taken into account under s 38(3) will be relevant not just to the making of any finding pursuant to s 38(2) but to the exercise of the discretion generally. The making of an order involves a three‑stage process: have the threshold matters (s 37(2)) been satisfied; if so, is the court satisfied of the requirement in s 38(2); if so, should the discretion be exercised to make the order sought.

[39]C, M v Commissioner of Police (2014) 121 SASR 106 at 109[11]‑110[12].

In 2020, in SP, Crowe AJ extracted the same two paragraphs from Nicholson J’s judgment in CM and noted that his Honour’s remarks have been applied in the subsequent South Australian decisions. Crowe JA adopted Nicholson J’s analysis “as appropriate in the context of ss 96 and 97 of the [ACT] Act with the reference by his Honour to s 37(2) [of the SA Act] being to s 96, s 38(2) being to s 97(3) and s 38(3) being to ss 97(4) and 97(5)”.[40]
[40]SP v The Chief Police Officer [2020] ACTSC 114 at [15]. The subsequent South Australian decisions to which Crowe AJ referred were: H, DB v Commissioner of Police [2015] SASC 2; K, MP v Commissioner of Police [2017] SASC 38; L, R v Commissioner of Police [2018] SASC 181; W, IB v Commissioner of Police [2018] SASC 87; Holland v Commissioner of Police [2019] SASC 141; and BM v Commissioner of Police [2020] 16.

In my opinion, the SORA provisions are to be construed in the following ways.

First, it is plain that only where a registrable offender comes within the terms of s 39(1) and s 39(2)(a), (b) and (c) will that person be eligible to apply to this Court for an order suspending his or her reporting obligations.

Second, as Nicholson J concluded in CM in respect of s 38(1) of the SA Act, I conclude that, by use of the permissive “may”, s 40(1) of the SORA confers on this Court a discretion to make an order suspending a registrable offender’s reporting obligations.

Third, 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). They are conjunctive requirements.

Fourth, in the same way that Nicholson J reasoned in CM that a “court will not be obliged to make the order in the event that it is satisfied of the requirement in s 38(2); the making of the order will remain discretionary”,[41] I am of the opinion that this Court will not be obliged to make a suspension order in the event of satisfaction of the requirements in s 40(2)(a) and (b); rather, the making of the order will remain discretionary.
[41]C, M v Commissioner of Police (2014) 121 SASR 106 at 109[12].

Fifth, I accept that it may well be a rare or extreme case in which this Court, where the threshold matters in s 39 are met and if satisfied of the risk requirement in s 40(2)(a), would not also be satisfied of the public interest requirement in s 40(2)(b) or would not exercise the discretion in s 40(1) in favour of an applicant. Consistently with Nicholson J’s view of s 38(2) of the SA Act in CM, as adapted and extended to the SORA provisions, I think that, while “lack of satisfaction under [s 40(2)(a) and (b) of the SORA may be] described as a matter of preclusion, a finding of satisfaction [of the risk test in s 40(2)(a)] ordinarily will be highly favourable [to a conclusion with respect to the public interest under s 40(2)(b) and] to the exercise of the discretion”.[42]
[42]C, M v Commissioner of Police (2014) 121 SASR 106 at 109[12].

Sixth, that said, I also accept Mr Payne’s submission that it would be wrong to fail to consider the public interest test separately or to treat satisfaction of the risk requirement as amounting, as a matter of law, to satisfaction of the public interest requirement. While I, like counsel, was unable at the hearing to think of any plausible situation in which the public interest would not be met (or, for that matter, where the discretion would not be exercised to make a suspension order) where the Court was satisfied of the risk test, that cannot alter the fact that, in the plain words of s 40(2)(b), the legislature has seen fit to require that a suspension order is not to be made unless, in addition to the Court’s being satisfied of the risk test in s 40(2)(a), it is also satisfied that it is in the public interest to suspend the registrable offender’s reporting obligations, and is persuaded to exercise the discretion in his or her favour.

Seventh, having thought about the matter some more since the hearing, it may well be that, in a given case, the evidence concerning one or more of the factors in s 40(3) would cause this Court to fail to be satisfied that it was in the public interest to suspend the registrable offender’s reporting obligations and/or to decline to exercise the discretion in his or her favour, notwithstanding satisfaction of the risk test in s 40(2)(a). For example, it may be that the registrable offender’s registrable offences were so grave (s 40(3)(a)) and that the victims of those offences were so young and damaged (s 40(3)(c)) that this Court would not be satisfied of the public interest test in s 40(2)(b) or that the discretion should be exercised in favour of granting the application.

Eighth, in deciding whether to make an order under s 40(1), the Court must take into account the matters listed in s 40(3). Section 40(3) is silent on whether the matters enumerated in that provision are to inform the decision under s 40(2)(a), the decision under s 40(2)(b), or the exercise of the discretion in s 40(1), or all of those things. However, again, consistently with the approach of Nicholson J in CM, necessarily adapted to the SORA, I consider that “[f]indings with respect to the matters to be taken into account under [s 40(3)] will be relevant not just to the making of any finding pursuant to [s 40(2)] but to the exercise of the discretion generally”.[43]
[43]C, M v Commissioner of Police (2014) 121 SASR 106 at 109‑110[12].

Ninth, more particularly, given the nature of the matters listed in s 40(3), it is plain that the considerations in paragraphs (a) to (e) are capable of informing the decision about risk under s 40(2)(a). Further, as I have just suggested by reference to the considerations in s 40(3)(a) (offence gravity) and s 40(3)(c) (age of the victim/s), it may well be that the public interest requirement in s 40(2)(b) and the discretion in s 40(1) will be informed, to a greater or lesser degree, by at least some of those same matters.

Tenth, because paragraph (e) of s 40(3) (“any other matter the court considers appropriate”) is so broad, it is impossible to make any useful general statements as to which of s 40(1), s 40(2)(a) or s 40(2)(b) matters falling within that paragraph might go, or how.

Eleventh, that said, counsel agreed that an applicant’s rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”) are, to a degree, matters falling within paragraph (e). Mr Payne gave as examples the rights to privacy[44] and freedom of movement,[45] but submitted that those rights must be balanced against rights concerning the protection of families and children.[46] These strike me as matters capable of informing the public interest and the discretion more generally.
[44]See s 13 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
[45]See s 12 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
[46]See s 17 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Twelfth, counsel also agreed that the attitude of the victim of the offending that gave rise to the reporting obligations in the first place was an appropriate matter to take into account under paragraph (e). That issue arises squarely in this case, for KL never wanted GH charged, and she is supportive of his current application. It may be one thing for a child of 15 to have had that view about prosecution, especially as the law takes the paternalistic approach that those under 16 must be protected from behaviour of the type in which GH and KL engaged, even though it was consensual. But it is arguably another for KL, now a woman in her 30s, to maintain her original view and, what is more, to be supportive of GH’s present application. While a victim’s view (whether pro, con or neutral) could not be determinative of an application under s 39(2), it is a matter capable of informing the public interest consideration in s 40(2)(b) and the exercise of the discretion in s 40(1). In rare cases, it may also be a matter that speaks to the assessment of risk for the purposes of s 40(2)(a).

Other matters of law

Issues not determined in absence of full argument and because unnecessary here

I turn now to three other matters of law relevant to an application for a suspension order which counsel addressed in their written submissions. However, because I did not hear full oral argument on these issues, and because their determination was unnecessary to the resolution of this case, I have refrained from reaching final conclusions on these other matters of law. That said, I shall record the gist of counsel’s written arguments and make some tentative observations about each issue.

Does the risk in s 40(2)(a) extend to future risk?

First, in 2018, in L, R v Commissioner of Police[47] (“LR”), before considering “the potentially precluding factor provided for by s 38(2) [of the SA Act] and the overarching discretion”, Nicholson J said that he needed to make three preliminary observations relevant to s 38(2):[48]

[11] First, subsection 38(2) employs the present tense in the phrase “does not pose a risk”. In [CM],[49] I considered the issue of whether, notwithstanding the use of the present tense, subsection 38(2) required a consideration of future risks rather than simply the level of risk as at the time of the application or delivery of judgment upon it. For the reasons set out in [CM], I concluded that the phrase “does not pose a risk” should be read in the sense: does not pose a risk and will not pose a risk in the future. I see no reason to depart from that conclusion.[50]

[47]L, R v Commissioner of Police [2018] SASC 181.

[48]L, R v Commissioner of Police [2018] SASC 181 at [11].

[49]His Honour cited C, M v Commissioner of Police (2014) 121 SASR 106 at 110[14]‑112[18].

[50]His Honour said, “See now K, MP v Commissioner of Police [2017] SASC 38 at [18] (per Hinton J).”

In his written submissions, Mr Payne extracted the foregoing passage from LR and submitted that a similar approach should be adopted with respect to the consideration of risk under s 40(2)(a) of the SORA.[51] In her written reply, Ms Parsons agreed with that submission.[52]
[51]Respondent’s submissions (19 July 2023) at [43].
[52]Applicant’s reply (23 August 2023) at [15].

Section 40(2)(a) of the SORA also uses the present tense in the phrase “poses no risk or a low risk”. My tentative view is that that phrase should be read in the way suggested by Nicholson J, but as adapted to the partly different wording in that phrase as compared with the SA Act provision. Thus, as presently advised, I tend to the view that the phrase “poses no risk or a low risk” in s 40(2)(a) should be read in this sense: “poses no risk and will not pose a risk in the future, or poses a low risk and will not pose more than a low risk in the future”.

As it happens, it is plain that Dr Sorotos’s opinion embraced both present and future risk.

Does the risk in s 40(2)(a) mean any risk or an “appreciable” risk?

Second, in LR, Nicholson J also said the following:[53]
[53]L, R v Commissioner of Police [2018] SASC 181 at [13]‑[16] (emphasis in original).

[13] The third preliminary observation follows on from the first. Subsection 38(2) provides that the court must be satisfied that the registrable offender “does not pose a risk to the safety and well‑being of a child or children”. Construed literally, it would rarely, perhaps never, be the case that a court could make an unqualified finding that any person, let alone a person with a history of underage sexual offending, posed no such risk, particularly as to the indefinite future. This is particularly acute in the present context because the courts are routinely assisted by and required to take account of psychological or psychiatric evidence which relies on both clinical assessment and psychometric testing bearing on this question. As I understand the position, it is, I think universally, the case that a forensic psychologist or psychiatrist will not express the level of such a risk other than by reference to some type of scale or spectrum of risk with low risk, usually, being the entry point for the scale. In other words, it is the experience of the courts in this and related areas that the experts will never (and rightly so) commit themselves to an absolute position of no risk.
[14] Recognising that the expert evidence bearing on the question of risk will be inherently constrained in the manner just described and the practical difficulties that will confront any judge who is called upon to express a view as to a person’s likely or possible future conduct, subsection 38(2), where it requires a finding that a registrable offender “does not pose a risk ...”, is not to be construed literally. To do so would limit the reach of the discretion to suspend reporting obligations conferred by sections 37 and 38 of the Act to such an extent as to effectively empty it of all content.
[15] In my view, the subsection looks to an appreciable risk. As to the meaning of this notion, I adopt and adapt the observations of Stanley J (albeit in a different context) in Attorney‑General v Grosser.[54]
I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible. Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk [of the type in question]. It is a question of degree. [footnote omitted]

[16] The type of risk envisaged by subsection 38(2) will be an appreciable one if it is such that a court comes to the view that the applicant in question remains a person with respect to whom reporting obligations should continue to apply, notwithstanding the satisfaction of the other statutory mandatory requirements for suspension, the identification of favourable discretionary considerations and the lack of any unfavourable discretionary considerations.

[54]Attorney‑General v Grosser [2016] SASC 49 at [29].

In his written submissions, Mr Payne extracted the foregoing passages from LR and submitted that a similar approach should be applied to s 40(2)(a), with modifications to take into account that that provision, unlike the equivalent South Australian provision, also includes eligibility for a suspension order in cases where the registrable offender poses “a low risk”.[55] Again, in her written reply, Ms Parsons agreed with that submission.[56]
[55]Respondent’s submissions (19 July 2023) at [43].
[56]Applicant’s reply (23 August 2023) at [15].

Given that s 40(2)(a) includes situations where the person “poses no risk or a low risk”, it might be thought that the legislature has determined it unnecessary to qualify the meaning of “poses no risk”, because the phrase “poses … a low risk” is capable of filling that gap. Nevertheless, the phrase “poses no risk” must be given meaning. And, for the reasons given by Nicholson J in LR, my tentative view at present is that those words in s 40(2)(a) should be construed as meaning “poses no appreciable risk”.

If that is correct, it would seem to follow that the phrase “poses … a low risk” should be construed as meaning “poses a low appreciable risk”. That said, to my mind, the word “appreciable” does not sit as happily in that phrase as it does in the phrase “poses an appreciable risk”. This is because, if a risk is capable of estimation or measurement as “low”, it must also be a risk capable of appreciation — capable of being estimated, perceptible and sensible. This then suggests the word “appreciable” is redundant in the phrase “poses a low appreciable risk”. In those circumstances, it may be safer to treat the phrase “poses no risk” as meaning “poses no appreciable risk”, but leave “poses … a low risk” as it is. The notion of “a low risk” in the area of sex offending seems to be commonly used and understood by professionals — usually psychologists and psychiatrists — who are called upon to assess a person’s risk of such behaviour. It may only confuse things to speak of posing “a low appreciable risk”.

Onus and standard of proof

Third, in LR, Nicholson J said this in relation to the second of his preliminary observations:[57]

[12] … In [CM],[58] I expressed the view that the applicant bore the onus to establish the requirement in subsection 38(2) and to do so on the balance of probabilities, albeit following the application of a Briginshaw[59] approach. I have given further consideration to this matter, bearing in mind the decision of Barr J in R v ND[60] and the observations of Hinton J in K, MP v Commissioner of Police.[61] On further reflection, I now take the view that to speak in terms of onus and the traditional formulation of the civil standard of proof, albeit with a Briginshaw approach, may not be apposite. Rather, the fundamental question before a court when considering subsection 38(2) is one of whether the court is or is not satisfied of the requirement.

[57]L, R v Commissioner of Police [2018] SASC 181 at [12].

[58]His Honour cited C, M v Commissioner of Police (2014) 121 SASR 106 at 112[19]‑113[20].

[59]His Honour cited Briginshaw v Briginshaw (1938) 60 CLR 336.

[60]His Honour cited R v ND [2014] NTSC 11.

[61]His Honour cited K, MP v Commissioner of Police [2017] SASC 38 at [19].

In their written submissions, both counsel submitted that the civil standard of proof is applicable to an application under s 39(2) of the SORA.[62] While Mr Payne, in his written submissions, extracted the foregoing paragraph from Nicholson J’s reasons in LR, neither he nor Ms Parsons made any submission regarding the onus of proof.
[62]Respondent’s submissions (19 July 2023) at [23]‑[27] & [43]; Applicant’s reply (23 August 2023) at [7] & [15].

In addressing the standard of proof, Mr Payne noted that, in relation to a (discretionary) application to a court following findings of guilt for less serious sexual offences, made pursuant to s 11(1) of the SORA, for an order that a person comply with reporting obligations, s 11(3) requires that the court may only make such an order if, after taking into account any matter that it considers appropriate, it is satisfied, “beyond reasonable doubt”, that the person poses a risk to the sexual safety of one or more persons or of the community. In Mr Payne’s submission, notwithstanding that s 40(2)(a) also concerns an assessment of risk to sexual safety of others, “there are no provisions in the [SORA] which would displace the applicability of s 4 of the Evidence Act 2008 (Vic) to an application under s 39”.[63]
[63]Respondent’s submissions (19 July 2023) at [26].

As I did not hear oral argument on these points, I do not think I should express a concluded opinion on either the onus of proof or the standard of proof to be applied to applications pursuant to s 39. That said, given the express reference to the criminal standard of proof in s 11(3) and the absence of any reference in s 39 or 40 to any standard of proof (perhaps other than the reference in s 40(2) to the Court’s being “satisfied”), there is, I think, a strong argument that the civil standard of proof is to be applied to applications under s 39(2). On the other hand, presently, I am attracted to the (revised) view of Nicholson J expressed in the foregoing extract from LR on both the burden and standard of proof.

But, like the other two questions of law addressed earlier, final resolution of these questions should await a case in which the points have been argued fully and/or their determination may be necessary to the outcome of the application.

Consideration of matters under s 40(3)

Seriousness of registrable offender’s registrable offences (s 40(3)(a))

I turn now to explain why I am satisfied that GH’s application should succeed, commencing with the factors that, pursuant to s 40(3), must be taken into account in deciding whether to make a suspension order, the first of which is found in s 40(3)(a) — the seriousness of GH’s registrable offences.[64]
[64]There are no “corresponding registrable offences” to consider under s 40(3)(a).

As will be recalled, the judge described the offences as “very serious” and “serious”, but went on to say that she considered that “they fall at the lower end of the scale for this type of offending”. In particular, her Honour emphasised that GH did not treat KL “as a plaything”; that he obviously cared for her very much; and that KL “readily consented to [the] sexual acts”. Further, the judge took into account GH’s full and frank admissions, his early pleas of guilty, his remorse, his youth, his excellent prospects of rehabilitation, and her finding that there was little, if any, risk of reoffending.[65]
[65]Judge’s sentence at [2]‑[5] & [10]‑[16] (above).

I should add that the following things are also apparent from GH’s police interview conducted in late‑May 2007. First, while he was aware that KL was 15 at the relevant times, he regarded her as mature for her age. Second, they talked about having sex before doing so. KL said she was ready. Third, they were in a serious relationship and were in love. Fourth, GH said he knew it was wrong to be having sex with a person under 16, but he did not, at that time, realise it was illegal or how serious it was. Fifth, of her own volition (and without any foreknowledge or encouragement on GH’s part), KL had a contraceptive device prescribed by a doctor and implanted in her arm a few months before they had sex. Sixth, KL discussed the contraceptive device with her mother in the presence of GH. Seventh, they frequently stayed overnight together at the homes of their families, although GH was not permitted to sleep with KL in her bed. Eighth, KL was angry with her parents when they reported the matter to police — so much so that she packed her bags and left home.

Initially, in his written submissions, Mr Payne argued that the judge’s conclusion — that the offending was at the lower end of the scale — should be afforded little weight given the law and sentencing practices as they stand today.[66] He also pointed out that the maximum penalty is now 15 years’ imprisonment for the equivalent offence, and that the offence carries a standard sentence of six years’ imprisonment.[67]
[66]Respondent’s submissions (19 July 2023) at [61]‑[62]; see also [61] & [63]‑[76].
[67]Respondent’s submissions (19 July 2023) at [68]‑[73].

Ms Parsons submitted that the offending could properly be characterised as “low level”, notwithstanding any change in current sentencing practices and perceptions of offence seriousness.[68]
[68]Applicant’s reply (23 August 2023) at [26]; see also at [16]‑[25].

In the end, however, Mr Payne accepted at the hearing that GH’s offending “can be categorised at the lower end of what is an inherently serious offence”.

While sexual penetration of a child under 16 was in 2007, and remains now, potentially a very serious offence, for the reasons the judge gave, and in view of the additional matters to which I have just referred from GH’s police interview, his offences fell very much towards the lower end of the scale of gravity. So much is properly reflected not only in the experienced judge’s reasons but also in the sentence she imposed — namely, an adjourned undertaking to be of good behaviour, without conviction.

Notwithstanding Mr Payne’s ultimate concession, with which I agree, I consider it appropriate to say something about the Court of Appeal’s 2011 decision in Clarkson v The Queen[69] (“Clarkson”), which formed one of the bases for his initial submission. In essence, as I understood him, Mr Payne had submitted that Clarkson signalled a change in attitude of the courts to the gravity of the offence of sexual penetration of a child under 16, especially when considering whether the complainant consented to the sexual act.
[69]Clarkson v The Queen (2011) 32 VR 361 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

In Clarkson, a bench of five judges held, inter alia, that, for this offence, “consent can never, of itself, be a mitigating factor”.[70] Their Honours expanded on the point in this way:[71]

[4] … That is, proof that the child consented will not of itself differentiate the case for sentencing purposes from one where the child’s consent cannot be established. (Proven absence of consent, on the other hand, significantly increases the seriousness of the offending and the culpability of the offender.)
[5] Proof that the child consented is the beginning, rather than the end, of the sentencing court’s enquiry. In assessing the gravity of the offence and the offender’s culpability, the court’s attention will be directed not at consent as such but at the circumstances in which the consent came to be given.
[6] Typically, the giving of the consent will be a reflection of the relationship between the child and the offender. In very many cases, the consent will be seen to reflect a significant age difference and/or power imbalance between offender and victim. In such cases — for example, the consent given by a pupil to her teacher, or by a daughter to her mother’s partner — the circumstances will usually reveal the offender’s abuse of a position of trust or authority, rendering the offence more grave and his culpability greater.
[7] At the other end of the scale, there are exceptional cases — for example, in a relationship between a 15‑year‑old girl and an 18‑year‑old boy — where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender’s culpability as reduced. In such a case, too, the offender may be able to establish, by appropriate evidence, that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity.
[8] In short, to ask whether consent is a mitigating factor is to ask the wrong question. It is only when the circumstances in which the consent was given are properly understood that the court can appropriately assess the offender’s conduct and, hence, determine the appropriate sentence.

[70]Clarkson v The Queen (2011) 32 VR 361 at 364[4].

[71]Clarkson v The Queen (2011) 32 VR 361 at 364[4]‑[8] (footnote omitted).

In this case, the sentence was imposed four years before the decision in Clarkson was handed down. However, given the judge’s findings and the material before her Honour, as well as the new material before this Court, I am satisfied that this is one of those “exceptional cases” at or near “the other end of the scale” to which their Honours referred in Clarkson. For, here, it is apparent that the judge accepted (and I too am satisfied) that KL’s “consent was freely given and genuine and a reflection of a genuine affection between [her and GH]”. Further, KL was nearly 16, mature for her age, and relatively close in age to GH, who was only 19 to 20 at the time (about which I shall say more when discussing s 40(3)(c) in a moment). In all the circumstances, it is plain that the judge viewed, and was right to view, the offences as less grave than otherwise and GH’s culpability as reduced. It is also reasonable to infer, and I do, that it is apparent from KL’s attitude today that she did not “suffer the harm which the law presumes to flow from premature sexual activity”.

Ages of registrable offender and victim, and age difference (s 40(3)(c))

As I alluded to a moment ago, other factors pointing to a lower level of offence seriousness are that, between the dates of offending pleaded on the presentment (between 1 December 2006 and 11 May 2007), KL was aged between about 15 years and five months and 15 years and ten months; GH was aged between about 19 years and 11 months and 20 years and four months; and the age difference between them was about four‑and‑a‑half years.

Thus, this case was nothing like the “very many cases” to which the Court referred in Clarkson, where “the consent will be seen to reflect a significant age difference and/or power imbalance between offender and victim”. Here, the age difference was relatively small; KL was nearly 16, mature for her age, and had discussed with GH their having sex before it occurred; they cared for each other and were in love; and there was no suggestion of any power imbalance. Further, there was no “abuse of a position of trust or authority” by GH, which, had it been present, would have rendered “the offending more grave and his culpability greater”.

If ifs and ands were pots and pans

Had GH been only four months younger when the offending ceased (i.e. still 19, not yet 20), he would have been able to apply for a registration exemption order under s 11A of the SORA,[72] which came into force in 2018.[73] The effect of such an order is that the person in respect of whom the order is made ceases to be a registrable offender,[74] and therefore his or her reporting obligations cease as well.
[72]See also ss 11B‑11G of the Sex Offenders Registration Act 2004 (Vic). That said, as Mr Payne pointed out in his written submissions (at [101]), by virtue of s 11C, GH may have been regarded as ineligible for a registration exemption order because an application for such an order must be made within six months of being given notice under s 50 of his reporting obligations. However, given that these provisions did not come into operation until 2018, this Court may well have acceded to an argument that time should be abridged in a case like this. But the point need not be resolved, for it is only a hypothetical point made to illustrate the arbitrariness of these provisions.
[73]See ss 2(4) and 7 of the Sex Offenders Registration Amendment (Miscellaneous) Act 2017 (Vic).
[74]See s 11E of the Sex Offenders Registration Act 2004 (Vic).

Further, while the presentment indicates that the first and second instances of sexual penetration occurred between 1 December 2006 and 11 May 2007, the earlier date is wrong, or at least misleading. This is because a close reading of GH’s interview suggests that those two instances of the offence occurred no more than two or three months prior to the interview, which places the earliest date of their first act of intercourse late in February 2007.[75] Thus, had GH and KL waited just five months before commencing intercourse, by which time KL would have been 16, there would have been no offences committed and there could be no cause for GH to be on the Sex Offenders’ Register or to have reporting obligations.
[75]See ROI at Q51, 54, 65, 93 & 108.

Of course, if ifs and ands were pots and pans, there’d be no work for tinkers’ hands. But these particular ifs and ands serve to illustrate just how arbitrary the law is in this sphere, and how blunt and cruel an instrument it turned out to be in this particular case. For it cannot reasonably be supposed that any harm would have been done to KL had she and GH waited five months before acting as they did. But the evidence is that, notwithstanding she was 15 at the time, there was no harm to KL in acting as they did when they did. Yet, despite her not wanting him charged — a view she maintains 16 years later as a woman in her 30s — the prosecuting authorities and the law have combined to condemn GH to a criminal record for sex offences with a child. And, as if not satisfied with that, the law has gone doubly wrong, by declaring, without any discretion allowed to the judge, that GH is to be on the Sex Offenders’ Register forever, with lifelong reporting conditions.

Period since offences committed; applicant’s present age (s 40(3)(b) & (d))

As indicated earlier, at the time of the hearing, it was over 16 years since the registrable offences were committed by GH, who is now aged 36. And so it is that, for nearly the whole of his adult life thus far, GH has been subject to these reporting obligations, and all of the indignity and fear of unjustified odium that comes with them.

Registrable offender’s total criminal record (s 40(3)(e))

In addition to the findings of guilt giving rise to his being placed on the Sex Offenders’ Register by operation of law, GH’s total criminal record comprises the minor breaches of his reporting obligations in 2012 and some irrelevant driving infringements leading to the loss of his driver’s licence as a teenager.

Any other matter the Court considers appropriate (s 40(3)(f))
Impact on Charter rights

As for “any other matter the court considers appropriate” under s 40(3)(f), and which must be taken into account in deciding whether to make an order under s 40(1), I have already discussed counsel’s submissions on the impact of the reporting obligations on GH’s rights to privacy and freedom of movement.

It is plain from the material before the Court that the negative impact of the reporting obligations on GH’s privacy and freedom of movement is increased now that his children are at or approaching the age where they do or will mix increasingly with other children. This state of affairs, in turn, requires GH either to refrain from being involved in those activities with his children or, if he is to be so involved and thereby come into contact with other children, to disclose information concerning every such child to the Chief Commissioner.

Attitude of KL

I have already referred to the relevance of KL’s attitude to this application, and need not repeat that discussion here. Suffice it to say that it is a matter I consider appropriate to weigh in favour of GH’s application.

Impact of remaining on Register, prohibition on child-related employment, etc

Another factor that Mr Payne — quite fairly and properly, in my view — raised in his written submissions as capable of coming within s 40(3)(f), and which I should consider as appropriate, concern (what he described as) “the ongoing statutory restrictions on [GH]” even if the application is granted.[76]
[76]Respondent’s submissions (19 July 2023) at [5] & [87].

In particular, Mr Payne explained that, if I make an order suspending his reporting obligations, GH will still remain a registrable offender to whom the following restrictions or impositions will continue to apply:

a) His details will be kept permanently on the Register.[77]
[77]See Part 4 (including s 62) of the Sex Offenders Registration Act 2004 (Vic).

b) He must not apply for or engage in “child‑related employment”.[78]
[78]See Part 5 of the Sex Offenders Registration Act 2004 (Vic).

c) The Chief Commissioner at any time may seek a prohibition order, which can prohibit a registrable offender from engaging in certain conduct specified in the SORA.[79]

d) He may not apply to change his name without first obtaining the written approval of the Chief Commissioner.[80]

e) He may not make an “acknowledgment of sex application” without first obtaining the written approval of the Chief Commissioner.[81]

[79]See Part 4A (including s 66Q) of the Sex Offenders Registration Act 2004 (Vic).

[80]See Part 5A (including s 70C) of the Sex Offenders Registration Act 2004 (Vic).

[81]See Part 5C (including s 70Q) of the Sex Offenders Registration Act 2004 (Vic). An acknowledgment of sex application means an application under s 30A or 30E of the Births, Deaths and Marriages Registration Act 1996 (Vic), which respectively concern an application to alter the record of a person’s sex in the person’s birth registration or an application for a document that acknowledges the person’s name and sex.

I accept that these persisting impositions or restrictions are matters that tell in favour of exercising the discretion to suspend GH’s reporting obligations. Indeed, it seems strange to me — and unduly onerous — that these restrictions or impositions should remain at all in respect of a person who satisfies the tests in s 40, especially in a case like GH’s. But there it is: they do.

Especial value of admissions and pleas of guilty

Another matter I consider appropriate to take into account under s 40(3)(f) is this.

GH’s admissions and his pleas of guilty were especially valuable in this case. This is because, but for those admissions and pleas of guilty, it appears very unlikely that the first and second counts of sexual penetration could have been proved, as KL declined to make a statement to police. The third count may have been capable of proof absent the admissions, a plea of guilty and any statement from KL because, it seems, KL’s mother walked in on the couple when they were having sex. Had GH been found guilty of, or pleaded guilty to, only that single offence, he would have been subject to reporting obligations for 15 years, not for the remainder of his life.[82]

A single rolled-up count or a single representative count

[82]See ss 6, 7(1)(a) and 34(1)(b)(i) of the Sex Offenders Registration Act 2004 (Vic).

Putting aside those issues of proof, it is arguable that the same result could have been achieved if either the three acts of sexual penetration had been rolled up into one count or just the one offence had been charged as a sample or representative count.[83]
[83]As to rolled‑up and representative counts, see, e.g., R v Jones [2004] VSCA 68 at [12]‑[13] (per Charles JA, Phillips JA at [22] and Bongiorno AJA at [27] agreeing).

Given the admissions made to police, the attitude of KL, and all the surrounding circumstances, I find it hard to understand why neither approach was taken, particularly given that this seems never to have been a case in which the crushing effect of automatic life‑long reporting could have been thought an appropriate thing to visit upon the hapless GH.

Consideration of risk under s 40(2)(a)

I turn now to the question posed by s 40(2)(a).

The evidence is all one way. GH’s offending was at the lower end of the spectrum of gravity for offences of this nature. He had no prior history of sexual offending, and has none in the 16 years since. Bar the minor blemish of breaching his reporting obligations in 2012, he has led an exemplary life since the offending. He is in a stable marriage, with three children, in secure employment, and has the support of his wife, his employers, and his wider family.

Dr Sorotos found no evidence of any sexual deviancy or paedophilia. She opines that GH is no more likely to reoffend than the average male offender who has never previously sexually offended. Overall, she regards him as a low risk of sexual offending.

On all of the evidence before me, and particularly having regard to the unchallenged evidence of Dr Sorotos, which I accept, I am satisfied[84] that GH poses no risk or a low risk to the sexual safety of one or more persons or of the community.
[84]By which I mean I am satisfied on the balance of probabilities having regard to Briginshaw principles.

Consideration of public interest under s 40(2)(b)

Next, I turn to the question posed by s 40(2)(b).

In his written submissions, Mr Payne submitted that, whether suspension of GH’s reporting obligations is in the public interest necessarily involves consideration of the objects of the SORA, as well as the matters listed in s 40(3). He submitted that, in summary, the relevant considerations include the following:[85]
[85]Respondent’s submissions (19 July 2023) at [94]‑[95].

a) that the offending was at the lower end of the scale of gravity for this type of offending;[86]
[86]I have modified this point to reflect Mr Payne’s shift from his original submission to his ultimate concession concerning offence gravity, which I discussed earlier in these reasons.

b) GH’s relative youth at the time of offending;

c) the age of the offending;

d) that GH has not reoffended by similar offending and has progressed to rehabilitate himself;

e) KL’s attitude to the application;

f) that the breaches of his reporting obligations are not serious in nature;

g) GH’s age now;

h) his family supports and ties;

i) that he is otherwise of good character; and

j) the residual protections afforded to the community by the SORA.

I understood Ms Parsons to adopt the same points. In addition, in Ms Ramsay’s written submissions, she submitted that, while it is in the public interest that registrable offenders are required to report their personal details as a means of reducing the likelihood of reoffending, it is also in the public interest that, where such offenders pose no risk or a low risk of reoffending, their reporting obligations be suspended so as to relieve them of what have become inappropriate and unnecessary impositions and so as to avoid the associated waste of precious police resources in administering those obligations. She also submitted that, while GH fell just outside eligibility for a registration exemption order, the same public interest considerations underpinning the provisions allowing for such orders — including supporting young offenders, facilitating their rehabilitation and avoiding extra‑curial punishment — apply to him.[87]
[87]Applicant’s submissions (20 April 2023) at , e.g., [17]‑[29].

For reasons which largely align with the matters raised by counsel and which reflect the matters discussed earlier when considering s 40(3) and s 40(2)(a), I am satisfied that it is in the public interest to suspend GH’s reporting obligations. Instead of repeating all of those factors, I shall list and highlight just some:

a) The offending was at the lower end of the spectrum of gravity for offences of this nature.

b) GH had no history of such offending previously, and has not reoffended in the same or any similar way in the 16 or more years since then. On the contrary, other than the minor breaches of reporting obligations, he has led an exemplary life since that time, including by working hard, raising a young family and providing for them.

c) GH was relatively young at the time of the offending. To maintain the quite intrusive and onerous reporting obligations required by the SORA for the remainder of GH’s life because of offending committed when he was so young would be to make no concession to the folly of youth. It is in the public interest to rehabilitate the young, yet to maintain his reporting obligations would serve only to interfere unduly with GH’s life, including his family life and his ability to interact fully with his children and their activities, and thereby might risk thwarting his continued rehabilitation.

d) KL, now a woman in her 30s, who did not want GH charged in the first place, supports his application for suspension of his reporting obligations.

e) GH poses no risk or only a low risk to the sexual safety of others. In those circumstances, to continue to impose reporting obligations on GH is no longer necessary to achieve the purpose of the SORA as described in s 1(1)(a)(i).

For at least these reasons, in the circumstances of this particular case, I am satisfied that there is no public interest in requiring GH to continue to comply with his reporting obligations year after year for the remainder of this life. On the contrary, I am satisfied that it is in the public interest that those obligations be suspended.

Consideration of the discretion under s 40(1)

The factors just discussed cause me to conclude that I should exercise the discretion in favour making an order suspending GH’s reporting obligations. I can see no reason against making that order and every reason in favour of it.

For the same reasons, I consider that the period of suspension should commence immediately and be for the remainder of GH’s life.

Order for suspension of reporting obligations

Accordingly, I shall order that the reporting obligations of GH, as a registrable offender under the SORA, are suspended forthwith and for the remainder of his life.

Orders suppressing GH’s name, address and identifying details

At the hearing, I indicated to counsel that I was proposing to publish reasons in a form which ensured GH could not be identified. To publish information capable of identifying him in connection with this matter would tend to defeat the reason for bringing the application in the first place, at least in part. Mr Payne and Ms Parsons agreed that I should take the course proposed, and that to do otherwise might discourage applications of this kind.

Ultimately, I took counsel to agree that the best way to achieve this would be to make a proceeding suppression order, pursuant to s 17 of the Open Courts Act 2013 (Vic), prohibiting publication of GH’s name and identifying details. Mr Payne’s instructions were not to oppose the application. He also submitted that it would be open to conclude that it was necessary to make such an order to protect the safety of GH.[88]
[88]See s 18(1)(c) of the Open Courts Act 2013 (Vic).

I agree.[89] Accordingly, I shall order that publication of the following in relation to this proceeding is prohibited: GH’s name, his home address and his work address, or any information that is likely to lead to the identification of GH, his home address or his work address. Further, I shall order that this order applies throughout Australia and for the remainder of GH’s life.
[89]I should add that, in the course of discussion, I heard briefly from Erin Pearson, a journalist at The Age who happened to be in the Court at the time. Naturally, her concern was to ensure that she could report the gist of the case but without identifying GH.

In conformity with these orders, as well as using the random letters GH and KL instead of their names or initials, in these reasons, I have refrained from identifying GH’s wife, his employers, where GH lives and works, and some other matters.

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3 May 2024