Re GH

Case [2024] VSC 216 3 May 2024

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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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Re GH

Details

AGLC: Re GH [2024] VSC 216
Case: [2024] VSC 216
Decision Date: 3 May 2024

CaseChat Overview and Summary

The case of Re GH involves an application to the County Court of Victoria under section 39(2) of the Sex Offenders Registration Act 2004 to suspend the applicant's lifelong reporting obligations as a registrable offender. GH was convicted in 2007 of three counts of sexual penetration of a child under 16, resulting in an adjourned undertaking without conviction for a period of 12 months. The offences involved consensual sexual intercourse between GH, a male aged 19 to 20 at the time, and the female complainant, aged 15. The offences occurred over 16 years ago, and GH has no prior or subsequent convictions, except for a minor breach of reporting obligations. GH is now married with children, has stable employment, and has the support of his wife and employers. A psychologist assessed GH as a low-risk sexual offender, and the complainant, who is now a woman in her 30s, supports the application to suspend the reporting obligations.

The legal issues in this case revolve around the interpretation and application of sections 39 and 40 of the Sex Offenders Registration Act 2004. Specifically, the court needed to determine whether GH met the pre-conditions set out in section 39, and if so, whether it was in the public interest to suspend his reporting obligations under section 40. The court had to assess whether GH posed no risk or a low risk to the sexual safety of the community and consider whether it was in the public interest to suspend the reporting obligations. The court also needed to exercise its discretion under section 40(1) to decide whether to grant the application.

The court found that GH satisfied the pre-conditions in section 39 of the Sex Offenders Registration Act 2004. It was satisfied that GH posed no risk or a low risk to the sexual safety of the community, and that it was in the public interest to suspend his reporting obligations. The court also exercised its discretion under section 40(1) to make the order in GH's favour. Consequently, GH's lifelong reporting obligations were suspended, and an order was made prohibiting the publication of his name, address, or any identifying information. This was the first application of its kind under the Act.

The final orders of the court include the suspension of GH's lifelong reporting obligations and an order prohibiting the publication of his name, address, or any identifying information. These orders reflect the court's determination that GH met the criteria for suspension of reporting obligations and that it was in the public interest to do so.

Orders