WJH v Chief Commissioner of Police
[2024] VSC 818
•20 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0139
| WJH | Applicant |
| v | |
| CHIEF COMMISSIONER OF POLICE | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 September 2024 |
DATE OF JUDGMENT: | 20 December 2024 |
CASE MAY BE CITED AS: | WJH v Chief Commissioner of Police |
MEDIUM NEUTRAL CITATION: | [2024] VSC 818 |
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CRIMINAL LAW — Application pursuant to s 39(2) of the Sex Offenders Registration Act 2004 (Vic) to suspend registrable offender’s lifelong reporting obligations — Sexual penetration of a child between 10 and 16 years — Victim supports application — Possess child pornography — No further offending — Applicant now in stable marriage, with children and stable employment — Low risk of sexual offending — Respondent did not oppose application — Application granted — Final suppression order on applicant’s identifying information — Sex Offenders Registration Act 2004 (Vic), ss 39, 40 — Open Courts Act 2013 (Vic), ss 17, 18, 20 — Re GH [2024] VSC 217 (Croucher J).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Chadwick KC | James Dowsley & Associates |
| For the Respondent | Mr D Star KC with Mr G Ayres | Victoria Police |
HIS HONOUR:
Introduction
By application filed 3 July 2023, WJH (‘the applicant’) applies for the suspension of his reporting obligations imposed under the Sexual Offenders Registration Act 2004 (Act). The applicant became a registrable offender under the Act following convictions for two registrable offences, namely:
(a) a charge of sexual penetration of a child between 10 and 16 years in the Melbourne County Court on 11 February 1994 (first offending); and
(b) a charge of knowingly possessing child pornography at the Ringwood Magistrates’ Court on 13 November 2006 (second offending).
The first offending occurred when the applicant was 18 years old and still in high school. He engaged in a sexual relationship with a 14‑year‑old female victim. The County Court imposed a 12‑month community‑based order with a condition of community work on the applicant. He completed all requirements of that order. The victim supports the application to suspend the reporting conditions.
The second offending occurred when the applicant was aged between 28 and 31. He was found to have paid for entry to a pornography website and viewed child pornography. Thirteen child pornography images were located on and seized from his computer. The Magistrates’ Court imposed an 18‑month Community Based Order, with an unpaid community work condition attached, which was also completed. This order also included that the applicant attend a Sex Offender Program, which was completed.
The applicant pleaded guilty to each charge. It is notable that the first offence charged carried a maximum possible penalty of 10 years’ imprisonment.
The applicant is now 50 years old, in a stable marriage with two children and has kept stable employment with the same employer for about 15 years.
Evidence on the application
The application is supported by an Affidavit of WJH dated 26 June 2023, and an Affidavit of Brett James Barratt, solicitor, dated 28 June 2023. The affidavit of WJH included attachments of documents relating to his two previous convictions, as well as a psychological report of Dr Matthew Barth dated 16 December 2022, and a series of personal references.
During the hearing the Court also heard evidence from the applicant’s wife, AMH. In sum, AMH’s evidence indicated that she was aware of the applicant’s registrable offending and facilitative of his compliance with his obligations under the Act. That said, she considered the obligations have a ‘significant impact’ on their lives. For example, AMH felt the obligations made it more difficult to socialise with other families, as well as plan holidays.
The respondent called no evidence at the hearing of the application, but relied on a number of documents filed with the Court, including an Affidavit of Stephanie Pullen, Victoria Police legal practitioner, dated 24 June 2024, to which were attached various exhibits, as well as an Affidavit of Superintendent John Kearney, Victoria Police, dated 28 September 2023.
Both parties relied on filed written outlines of argument, supplemented by oral submissions.
The applicable law
The applicable legislative provisions are found in Division 6 of Part 3 of the Act:
39Supreme 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.
…
40Order for suspension
(1)On the application under section 39(2), the Supreme Court may make an order suspending the registrable offender’s reporting obligations.
(1A)On the application under section 39A, a court may make an order suspending the registrable offender’s reporting obligations for the period of time specified in the order (which may be the remainder of the offender’s life).
(2)A court must not make an order under this section unless it is satisfied that—
(a)the registrable offender poses no risk or a low risk to the sexual safety of one or more persons or of the community; and
(b)it is in the public interest to suspend the registrable offender’s reporting obligations.
(3)In deciding whether to make an order under this section, a court must take into account—
(a)the seriousness of the registrable offender’s registrable offences and corresponding registrable offences; and
(b)the period of time since those offences were committed; and
(c)the age of the registrable offender, the age of the victims of those offences and the difference in age between the registrable offender and the victims of those offences, as at the time those offences were committed; and
(d)the registrable offender’s present age; and
(e)the registrable offender’s total criminal record; and
(f)any other matter the court considers appropriate.
(4)In deciding whether to make an order under subsection (1), the Supreme Court must also take into account any submissions made by the Chief Commissioner under section 41.
(5)In deciding whether to make an order under subsection (1A), a court must also take into account any evidence presented by the Chief Commissioner as to the risk that the registrable offender presents to the sexual safety of one or more persons or the community.
41Chief Commissioner is party to application
The Chief Commissioner of Police is a party to an application under section 39(2) and may make any submission to the Supreme Court in respect of the application.
In the recent decision of Re GH [2024] VSC 217 (GH), which was the first judgment of this Court on an application of this kind, Croucher J provided a comprehensive summary of the legislative provisions governing applications for the suspension of reporting obligations. I will apply the effect of his Honour’s thorough discussion and analysis of the law and interpretive issues likely to arise in these applications, and in doing so it is not necessary to re‑interpret his Honour’s conclusion. I refer to and adopt his Honour’s reasons where appropriate throughout this judgment.
In GH, three issues of interpretation were unnecessary to resolve to determine the matter: first, whether the risk in s 40(2)(a) extends to future risk; second, whether the risk in s 40(2)(a) means any risk or an ‘appreciable risk’; and, third, the proper articulation of the onus and standard of proof for applications of this kind. That said, his Honour expressed tentative views from [90] to [103], which I propose to adopt. As in GH, in my view, these issues were not fully argued in this present application and are not necessary to resolve to determine the matter.
The application
This application has had an extended procedural history, which was punctuated by the publication of reasons in GH.
The applicant contends that an order should be made under s 40(1) of the Act to suspend his reporting obligations. The respondent initially opposed this application, but later submitted that it is open to the Court to make the order. I note that, despite its submission, the respondent raises several matters that can point against that course being adopted.
Threshold requirements under ss 39(1) and (2) of the Act
In my opinion, the applicant meets the threshold requirements set out in s 39 and is therefore eligible to apply to suspend his reporting obligations:
(a) first, the applicant is a registrable offender who is required to continue to comply with the reporting obligations imposed by Part 3 of the Act for the remainder of his life (s 39(1));
(b) second, more than 15 years have passed since he was sentenced as a registrable offender (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)); and
(d) fourth, he is not on parole in respect of a registrable offence (s 39(2)(c)).
Consideration of mandatory matters under s 40(3)
Seriousness of registrable offender’s registrable offences (s 40(3)(a))
In my opinion, the two registrable offences that WJH was convicted of are at the lower end of the range of seriousness for registrable offences.
The first offence, although clearly unacceptable behaviour, involved a relationship between two young people who, subsequent to graduating high school, continued to be involved with each other for a period of time. I accept and emphasise Dr Barth’s opinion that the offending involved a degree of psychological coercion, however, I find that the level of coercion was low. The overall course of the relationship between the applicant and victim (including the victim’s support for this application) favours a finding of low level seriousness.
The second offence involved engagement with child pornography. This is also completely unacceptable, however, I also find that it falls towards the less serious end of registrable offending.
Ages of registrable offender and victim, and age differences (s 40(3)(c))
At the time of the first offending, the applicant was 18 and the victim 14. There was clearly an age difference between the applicant and the victim, however, it is to be remembered that both were teenagers. In my opinion, this fact, in the present case, works in the applicant’s favour.
As to the second offending, the applicant was 31 when he pleaded guilty to possession of child pornography and the depicted children were said to be between 10 and 14 years of age. In contrast against the teenage relationship in the first offending, the second offending involves a significant age gap and an adult man exploiting the child victims depicted in the pornography. This works against the application in my view. That said, albeit not specifically relevant to the question of age, the evidence relating to the second offending did show that: at the time of the offence the applicant had been drinking; he did not deliberately access the child pornography website; and he left the site and never returned once he had accessed it.
Period since offences committed; applicant’s present age; total criminal record (s 40(3)(b), (d) and (e))
The applicant is now 50 years old. A period of approximately 13 years separates the first offending from the second offending. A period of about 18 years has passed since the second offending. These two periods of non‑offending are substantial and favour this application in that they total about 31 years and represent more than half of the applicant’s adult life. Notably, it is also in the applicant’s favour that there appears to be no further history of court outcomes against him.
Any other matter the Court considers appropriate (s 40(3)(f))
Impact on Charter rights
As in GH, it is clear that the negative impacts of the reporting obligations on the applicant’s rights to privacy and freedom of movement are increased now that his children are of an age that involves them socialising frequently with other children. I have taken this into account.
Attitude of victims
The victim of the first offending, now an adult in her 40s, supports the application. I consider this support to weigh in favour of the applicant.
It is perhaps trite to say that we cannot know the attitudes of the victim children depicted in the pornography the subject of the second offending. That said, it must be noted that it is well accepted that the possession of child pornography is not a victimless crime.
Impact of remaining on Register, prohibition on child‑related employment, etc
It is relevant that, in the event that this application is successful, the applicant will continue to be the subject of a suite of statutory restrictions or requirements under the Act. These persisting obligations weigh in favour of the application insofar as they ensure that suspending the applicant’s reporting obligations will not result in him being without supervision aimed at preventing new registrable offending.
Existence of ongoing supports
I also consider it relevant that the applicant provided the Court with four character references in support of this application, including from his wife, cousin, aunty and close friend. Considered together, the references confirm the applicant as a committed, trustworthy and reliable individual who has sought to take his obligations under the Act seriously. The references further evidence a good level of personal, familial and social support for the applicant, particularly amongst people who are aware of his offending, the impacts of his reporting obligations to‑date, and his persisting obligations once this application is determined.
I have considered and weighed the criteria set out in s 40(3) of the Act.
Consideration of ‘no risk or low risk’ under s 40(2)(a)
Unlike GH, and as I have mentioned earlier in this judgment, the evidence in this application about there being no risk or a low risk to the sexual safety of the community is not all one way.
On the one hand, the following factors, in my opinion, enliven the issue of risk:
(a) the applicant’s second offending indicates, although does not prove, the applicant possessed an interest in child pornography;
(b) in December 2012, the applicant failed to mention that his two children were attending dance classes and he would on occasion pick them up from classes; and
(c) in February 2018, police raised concerns with the applicant about him showering with his daughter who at the time was 13 years old.
On the other hand, in moderation of risk and drawing significantly from the expert psychological evidence of Dr Barth, the applicant:
(a) continues to express remorse for his offending;
(b) engaged in the second offending when his use of pornography was problematic and this is no longer the case;
(c) displays an excellent appreciation of the noxious impact of all forms of child abuse;
(d) demonstrates a solid understanding of appropriate relapse prevention strategies to prevent any further offending;
(e) has matured significantly since the first offending;
(f) experiences a successful and a stable marriage, which has produced two children; and
(g) significantly, falls within the ‘Low‑Risk’ range for sexual recidivism based on the Static‑99R risk assessment methodology.
On balance, weighing all the relevant evidence, and taking into account the relevant factors referred to above, I am satisfied the applicant has demonstrated that the risk he poses to the sexual safety of the community passes the statutory threshold. Whilst I am not able to accept on the evidence before the Court that there is no risk to the sexual safety of one or more persons or of the community, in my opinion, based on the evidence put before the Court, the applicant’s level of risk posed should be accepted as low. I note that the respondent accepts the opinion offered in that it relates to ‘risk in the foreseeable future based on what is known about the Applicant and his circumstances at the present time’.[1]
[1]See: Respondent’s Closing Submissions, [48].
Consideration of public interest under s 40(2)(b)
To adopt the language of Croucher J in GH at [82], it would need to be a ‘rare or extreme case’ where an application passes the risk test in s 40(2)(a) but not the public interest test in s 40(2)(b).
On balance, I am satisfied the applicant meets the public interest test for the following reasons:
(a) as above, the first and second instances of offending fall towards the lower end of the range of seriousness for these kinds of offending;
(b) the victim of the first offending supports this application;
(c) the applicant has demonstrated that he has established himself successfully in the community since the second offending; and
(d) the applicant poses only a low risk to the community as discussed above and, as such, the reporting obligations are no longer necessary to achieve the purposes of the Act, especially considering the persisting obligations referred to above.
I note, and accept, the respondent’s submission that the regrettable mistake by the Magistrates’ Court that led the applicant to believe he would be subject to the reporting obligations for a period of eight years, rather than for life, does not weigh in the balance of this public interest test. I am unable to accept the submission made on behalf of the applicant that the circumstances concerning the change of the reporting period were unlawful, and made in the absence of power to do so.
I have carefully considered all the detailed submissions placed before the Court in this matter, and considered the purposes of the Act. Noting that the respondent has helpfully indicated that it is accepted that it is open to the Court to make an order under s 40(1) of the Act, the Court has come to its own conclusion after reviewing all of the matters put before it. Accordingly, I am satisfied of the matters required in s 40(2) of the Act, and that the discretion should be exercised to make the order sought.
Order for suspension of reporting obligations
For the reasons stated above, I am satisfied that I should exercise this Court’s discretion to suspend the applicant’s reporting obligations under the Act, for the period of his life. An order to that effect will follow.
Orders suppressing the applicant’s name, address and identifying details
An interim suppression order dated 1 July 2024 has been in place for the duration of this application pursuant to s 20 of the Open Courts Act 2013.
At the oral hearing, the Court agreed to make a final suppression order ‘in the same terms and for the same considerations’ as expressed by Croucher J in GH at [143]–[146]. An order to that effect will also be made.
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