Walton v Chief Commissioner of Police
[2025] VSC 231
•2 May 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0269
IN THE MATTER of an application under s 39(2) the Sex Offenders Registration Act 2004
BETWEEN:
| LARRY WALTON (A PSEUDONYM) | Applicant |
| and | |
| CHIEF COMMISSIONER OF VICTORIA POLICE | Respondent |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 April 2025 |
DATE OF JUDGMENT: | 2 May 2025 |
CASE MAY BE CITED AS: | Walton v Chief Commissioner of Police |
MEDIUM NEUTRAL CITATION: | [2025] VSC 231 |
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CRIMINAL LAW – Application pursuant to s 39(2) of Sex Offenders Registration Act 2004 (Vic) to suspend registrable offender’s lifelong reporting obligations – Where offending in relation to three girls between the ages of 5 and 8 and occurred between 1989 and 1996 – Where no suggestion of further sexual offending in previous 29 years – Where contemporaneous psychological opinion that applicant poses negligible risk to the community - Court satisfied, in accordance with s 40(2) of the Sex Offenders Registration Act 2004 (Vic), that the applicant poses a low risk to the sexual safety of the community and it is in the public interest to suspend the applicant’s reporting obligations – Sex Offenders Registration Act 2004 (Vic) ss 39, 40.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Julian Murphy of counsel | Dribbin & Brown Criminal Lawyers |
| For the Respondent | Ms Eleanor Millar | Victoria Police |
Contents
A. Introduction
B. The offending
C. The applicant’s personal circumstances
D. The legislative test
E. Is the applicant a ‘low risk’?
F. Is it in the public interest to suspend the applicant’s reporting obligations?
G. Disposition and further observations
HIS HONOUR:
A. Introduction
In July 2005, Mr Walton,[1] the applicant, went to the police and admitted to indecently assaulting three young girls between 1989 and 1996. He was charged and pleaded guilty to seven offences. On 15 November 2005, the Magistrates’ Court of Victoria at Dandenong sentenced the applicant to a 12-month community correction order that required him, among other things, to participate in a sex offender program as and if directed. The Magistrates’ Court order also required the applicant to report to the Chief Commissioner in accordance with the Sex Offenders Registration Act 2004 for a period of 15 years. The applicant says that he was informed in 2006 that he was, in fact, as is the case, required to report for life.[2]
[1]This is a pseudonym.
[2]The error seems to have come about as a result of amendments that were made to the Sex Offenders Registration Act 2004 that took effect shortly before the Magistrates’ Court made its orders. In a letter by the applicant’s solicitors to the Chief Commissioner of Police dated 14 June 2022, it was suggested that the change in the applicant’s reporting period was due to a 2006 amendment to the Sex Offenders Registration Act 2004 (Vic). However, it appears the relevant amendment was in fact the amendment made by s 15(2)(iii) of the Sex Offenders Registration (Amendment) Act 2005 (Vic), which came into force approximately one month prior to the applicant’s sentencing. Also a letter tendered by the Chief Commissioner suggests that the applicant was told that he had to report for life in January 2013 (rather than in 2006). It is not necessary for me to consider these issues further because I accept, for the purpose of this application, that it was initially conveyed to the applicant that the reporting period would be 15 years, but he was later told, as was the case, that the reporting period was in fact for his life.
The applicant now applies pursuant to s 39(2) of the Sex Offenders Registration Act 2004 for an order suspending his reporting obligations. Such an order may be made if a period of 15 years has passed and I am satisfied that the applicant poses ‘no risk or a low risk to the sexual safety of one or more persons or of the community’ and it is in the public interest to suspend his reporting obligations.[3] The applicant contends, but the Chief Commissioner disputes, that these criteria have been satisfied. The applicant contends that the obligations have lasted now for 20 years, that they are burdensome and weigh heavily on him, that he poses no risk, and that they have prevented him from visiting his aging mother overseas.[4]
[3]Sex Offenders Registration Act 2004 (Vic) s 40(2).
[4]Under the Criminal Code Act 1995 (Cth) s 271A.1 the applicant is not allowed to travel overseas without the permission of a ‘competent authority’, here being the Chief Commissioner of Police.
I will first set out the uncontested facts surrounding the offending and the applicant’s personal background, then turn to the question as to whether the applicant’s reporting obligations should be suspended.
B. The offending
The offences are in relation to three young girls between the ages of 5 and 8 and relate to conduct that occurred between 1989 and 1996 while the applicant was a missionary for the Church of Jesus Christ of Latter-Day Saints (‘the Church’). In 1989 the applicant, in performing his duties as a missionary, would occasionally visit a family belonging to the Church in Footscray. On two occasions the applicant, when sitting on the stairs with the family’s daughter, who was at the time 8 years old, placed his hands underneath the child’s skirt and caressed her bottom. The child’s father accused the applicant of sexual assault and the applicant denied any wrong doing.
Between 1 August 1990 and 30 June 1991, the applicant was residing with a family connected to the Church in a bungalow. The family had a daughter who was 5 years old at that time. On three occasions the applicant placed his hands underneath the child’s clothing and caressed her bottom over her underpants. On another occasion, the applicant had the child enter his bungalow, lay on his bed and had the child walk on his back, then turned over and pulled the child onto him so that they were both facing the ceiling. The applicant then placed his hands down the front of the child’s pants and began to rub the external part of her vagina with his fingers. The same child in approximately 2003, then an adult, reported these incidents to the Church. The applicant was called in to talk to the President of the Braeside parish and denied the allegations. Some months later, however, he again talked to the President and admitted he had inappropriately touched the child and, on 11 December 2003, he was excommunicated from the Church as a result.
Between 1993 and 1994 the applicant, still residing with the same family, arrived at the family house late at night while everyone was asleep. The applicant went into the child’s bedroom and whispered her name to see if she was awake. The child, now 8 years old, pretended to sleep. The applicant got into her bed and placed his arm around the child and tried to turn her around to face him. The child continued to pretend to sleep and did not allow herself to be turned around. The applicant then left the room.
In August 1994 the applicant, living with his then wife, indecently assaulted his step-daughter who was 7 years old at that time. The step-daughter was asleep in the main bedroom where the applicant and his wife normally slept and woke to find the applicant in bed with her. Her underpants had been removed and the applicant was pulling her on top of him as he lay on the bed.
Between September 1994 and November 1996, the applicant continued to reside with his then wife and was watching television with the same step-daughter, now aged approximately 8 years old. The applicant began hugging his step-daughter and caressing her bottom over her clothing with his hands. On three other occasions during the same period, the applicant went into his step-daughter's bedroom while she was sleeping, reached under the covers of her bed and attempted to caress her vagina over her underpants. Each time as he began to touch her, she would wake up and change positions and the applicant would leave the room.
In April 2005, the same step-daughter divulged to her brother that the applicant had indecently assaulted her. The applicant then voluntarily went to the police and admitted to all the offences described above.[5]
C. The applicant’s personal circumstances
[5]Psychological Report of Ms Crutchfield dated 13 November 2005, 2.
The applicant was born in Chile in 1961 and is now 64 years old. He says that he was sexually touched by his sister when he was eight years old. He says his sister was 17 years of age at the time. He also says that, when he was 14 or 17 years of age (it is not clear which), he sexually touched his younger sister. It is unclear how old his younger sister was during this interaction, which has been described as ‘brief’.[6] There is no evidence as to whether applicant was ever investigated or charged in relation to that conduct in Chile and I assume that he was not. In 1985, he migrated to Australia.
[6]Psychological Report of Ms Matthews dated 30 March 2025, 6.
In 1991, the applicant married his first wife, and together they had a son born in 1993. They later separated in 1996. The applicant met his second wife in 2003 and remarried in 2005, the pair later having a daughter born in 2006 and a son born in 2008. The applicant and his second wife amicably separated in 2014 and divorced in 2018. Because of his history, Child Protection has been involved and for most of his life his contact with both his daughter and his son from his second marriage has been supervised. His daughter is now an adult and, I was told, Child Protection is no longer requiring that any contact with her be supervised. His son is now 16 or 17 years old and, I was told, Child Protection is likely shortly to remove the requirement that his contact with his son be supervised.
As noted previously, on 11 December 2003, the applicant was excommunicated from the Church for ‘conduct contrary to the laws and order of the Church’. He has since been rebaptised with the Church, and has received counselling through the Church, but it seems is no longer an active participant in church activities.[7]
[7]Psychological Report of Ms Matthews dated 2 May 2022, 3-4.
There is no suggestion that the applicant has committed further sexual offences since 1996, that is, in the last 29 years. He has, for the most part, complied with his reporting obligations, save for a period in 2016 and 2017. On 5 June 2018, he pleaded guilty to five offences of failing to comply, without reasonable excuse, with his reporting obligations as a registrable offender contrary to s 46(1) of the Sex Offenders Registration Act 2004. He failed to report the following changes to his personal details to the Chief Commissioner within seven days, as was required by ss 14 and 17 of the Sex Offenders Registration Act 2004:
(a)On 12 October 2016, the applicant created a new email account and did not report the email address;
(b)Around October 2016, the applicant created an account with an online dating platform and did not report the username for the account;
(c)In January or February 2017, the applicant’s wife disposed of the vehicle that the applicant usually drove and the applicant did not report that he no longer regularly drove the vehicle;
(d)In February 2017, the applicant became a member of Springvale Library in Springvale, Victoria and did not report his membership. The Springvale Library allows children to become library members and to participate in activities at the library; and
(e)In August 2017, the applicant became a member of a gym in Dandenong, Victoria and did not report his membership. The facilities offered at the gym included a swimming pool, and the gym allowed children to become members and to participate in activities at the gym, presumably including swimming lessons.
The applicant was released without conviction for each of the five offences upon entering into a good behaviour order for a period of 12 months. He has complied with the reporting obligations on him since that time.
The applicant’s mother is now 99 years old and lives in Chile. On 23 July 2018, 18 March 2019 and 23 September 2019, the applicant applied to the Chief Commissioner for permission to travel to Chile to visit his mother. Those applications were denied, with the last of those denials citing an ‘appreciable risk of [the applicant] offending against children’ in Chile. The desire to travel to visit his mother is cited as one of the main reasons for the instant application.
D. The legislative test
Section 40(1) of the Sex Offenders Registration Act 2004 empowers the Supreme Court to make an order suspending a registrable offender’s reporting obligations. Sections 40(2) and (3) then provide as follows:
(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.
E. Is the applicant a ‘low risk’?
The applicant has been assessed by various people over the last almost 30 years, but the contemporaneous evidence was from the forensic psychologist Ms Pamela Matthews. She examined the applicant on 27 April 2022 and again on 27 March 2025. Ms Matthews accepted that the applicant had paedophilia – was attracted to prepubescent girls as well as women - but said that:
(a)The applicant’s offending was opportunistic, rather than predatory, in the sense that he assaulted children who were opportunistically present in the same household, rather than children whom he pursued or groomed;
(b)The applicant had had ‘Rolls Royce’ one-on-one treatment from an expert in the field, Mr Michael Davis, in 2008;
(c)The applicant now accepts responsibility for his offending, does not minimise or deny his conduct and has insight;[8]
(d)The offending that took place when the applicant was an adolescent was less significant and in a separate category to his later offending, and that it is well understood that people may offend while adolescents without ever offending again;
(e)The applicant now poses a ‘very negligible risk to the community’. She based this opinion, among other things, on an assessment made using a recognised predictive tool called ‘Static 99R’. Static 99R is an ‘actuarial instrument’ that assesses relative degrees of risk of sexual recidivism based on demographic and criminal history information that is ‘widely accepted by the scientific community’. According to the Static 99R test, the applicant had an estimated recidivism rate of 1.1%, which was significantly lower than the rate for an average person. To a considerable extent, this low result arose from the fact that the applicant has now spent more than 20 years post his sentence without reoffending, as, statistically, each passing year reduces the risk by 12%. In forming her views, Ms Matthews also had regard to the various factors set out in s 40(3)(a)-(e) of the Sex Offenders Registration Act 2004 set out above;
(f)It is incorrect to think that people do not or cannot change as they get older, or to view the applicant as the same man he was 29 years ago. The offending has had consequences for him including excommunication from his church and a requirement of Child Protection that his contact with his own children be supervised. The applicant has structured his life so as to avoid offending again. Even if the obligation to report to the Chief Commissioner were suspended, the applicant would remain at the very low risk of reoffending; and
(g)The applicant experienced a ‘persistent heaviness of mood’ and depressive symptoms associated with the obligation to report to the Chief Commissioner and fear of failing properly to do so.[9]
[8]Psychological Report of Ms Matthews dated 2 May 2022, 6.
[9]Psychological Report of Ms Matthews dated 2 May 2022, 3-4.
The Chief Commissioner challenged the reliability of Ms Matthews’ opinion based on histories given and views formed by other persons expressed in reports given in 2005, 2007 and 2008. For the most part, Ms Matthews responded by saying that people can and do change and that her opinion was based on how he presented to her in 2025, and not on how he may have presented to others almost 20 years ago. I also observe, though, that none of these earlier reports placed the applicant at a high risk of reoffending or were clearly inconsistent with Ms Matthews’ views: a 2005 report by the psychologist Ms Colleen Crutchfield said the applicant then posed a ’medium to low risk of re-offending’; a 2007 report by the psychologist Dr Jennifer Neoh said it was ‘difficult to assess the risk to [the applicant’s son]’ on the information then available to her but that it was ‘relatively low’ but not ‘only theoretical’ and the applicant needed to complete a sex offender program as a matter of urgency; and a 2008 report by the psychologist Mr Davis (who was treating the applicant) said the applicant posed a ‘low risk of sexually offending against his 14 year-old son’. A 2018 report by the psychologist Mr Ian Stapleton dealt with issues of remorse and the like but not the risk of reoffending.
In circumstances where the Chief Commissioner did not call any contemporaneous psychological evidence disputing Ms Matthews’ findings and opinions or challenging the reliability and applicability of the Static 99R predictive tool, I accept Ms Matthews’ evidence. Indeed, it is difficult to see how I could do otherwise in circumstances where her evidence was uncontradicted, within her specialty and not inherently implausible.[10] Accordingly, I conclude that the applicant poses a ‘low risk to the sexual safety of one or more persons of the community’ for the purpose of s 40(2)(a) of the Sex Offenders Registration Act 2004.
F. Is it in the public interest to suspend the applicant’s reporting obligations?
[10]Cf, eg, Re AJ (a pseudonym) [2024] VSC 769, 28 [134] (Kaye JA).
In one sense, it will always be in the public interest that a convicted sex offender be subject to reporting obligations if those obligations reduce to any degree the prospect of the offender reoffending, regardless of the impact in the individual offender. But that is not the correct way to look at this question. It must be borne in mind that:
(a)Even if reporting obligations are suspended, a person such as the applicant will still remain on the register of sex offenders and so will not able to obtain a working with children card or be able to work in jobs that require such a card;
(b)The purposes of the Sex Offenders Registration Act 2004 are protective and the scheme is not intended to be punitive.[11] The reporting requirements form no part of the ‘punishment’ that is imposed on an offender;
(c)The reporting obligations are extensive. For example, a person who attends a social event such as a barbeque with friends who have children with them is obliged to notify the Chief Commissioner of each child’s name within one day and each child’s age, residential address and telephone number, if known, within seven days.[12] They constitute a significant restriction on the freedoms that citizens should be able to enjoy in a free society. This would be the situation even in the absence of the Charter of Human Rights and Responsibilities Act2006; and
(d)There is, accordingly, a broader public interest associated with the promotion of freedoms in society that persons not be obliged to report to the Chief Commissioner if there is not a proper reason for them to have to do so.
[11]WBM v Chief Commissioner of Police (2012) 43 VR 446, 457 [44].
[12]Sex Offenders Registration Act 2004 (Vic) ss 14(1)(e)-(ea), 17(1)-(2).
For these reasons, Croucher J has said that it would 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’.[13] To like effect, Kaye JA has said that a ‘finding of satisfaction in respect of the risk test, prescribed by s 40(2)(a), would, ordinarily, be highly favourable to a conclusion in relation to the ‘public interest’ test prescribed by s 40(2)(b)’.[14] At least in the circumstances of this case, I agree.
[13]GH v Chief Commissioner of Police [2024] VSC 216, [82].
[14]Re AJ (a pseudonym) [2024] VSC 769, [108].
That said, the legislation requires that consideration also be given to:
(a)The seriousness of the applicant’s offending. The offending was, it must be accepted, serious, even though it did not involve penetrative assaults. It was opportunistic and occurred repeatedly over a period of approximately seven years. The offending took place at the victims’ family homes, where they were entitled to feel and to be safe. It constituted a real breach of trust and abuse of young children in his charge;
(b)The period of time since the offences were committed. The last offence was in 1996. This is almost 30 years ago, which is a long time on any view;
(c)The ages of the applicant and of the victims. The age gap was substantial and the victims were very young. This is nothing like the case where there is a relatively small age gap and ostensibly consensual relations, such as was the case in GH v Chief Commissioner of Police[15] and RBC v Chief Commissioner of Police;[16]
(d)The applicant’s present age. The applicant is now 64. He has spent almost half his adult life subjected to a reporting regime;
(e)The applicant’s total criminal record. The applicant has no other findings of guilt, other than the period of time when he failed to comply with his reporting obligations in 2016 and 2017; and
(f)Any other matters the Court considers appropriate. It is, I consider, appropriate to consider also that the applicant’s mental health and ability to enjoy his life by doing such things as visiting his aging mother living in his country of birth has been reduced by his being subject to reporting obligations.
[15][2024] VSC 216.
[16][2025] VSC 10.
Having accepted Ms Matthews’ evidence that the applicant poses a ‘negligible risk’ to the community of reoffending, and having regard to the matters set out above, I conclude that it is in the interests of justice that the applicant’s reporting obligations now be suspended.
G. Disposition and further observations
I will make an order suspending the applicant’s reporting obligations, but will hear the parties on the precise form of order. The legislation provides that a court may not award costs.[17]
[17]Sex Offenders Registration Act 2004 (Vic) s 42.
Finally, the Chief Commissioner informed me, in answer to a question I posed at the commencement of the hearing, that he was not challenging the essential honesty of the applicant and the manner in which he presented to Ms Matthews. In those circumstances, it is understandable that the applicant did not himself give evidence and that no submissions were directed at his failure to do so. In my view, however, it should not be assumed that applicants will always be able to rely on opinions expressed by experts that are based in part on histories given to them without the applicants themselves giving evidence and exposing themselves to cross-examination.
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