Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

7
7.124 In addition to the mandatory registration of those offenders, the courts have discretionary
powers to register other offenders by making a sex offender registration order. The court
may make a sex offender registration order, to include a person in the Sex Offenders
Register and make them subject to reporting obligations, when:
• it finds a person guilty of any offence, other than a sexual offence against or involving
a child 90 , or
• it sentences a person for a sexual offence against or involving a child, committed as a
child 91 , or
• it finds a person guilty of any offence, sexual offence against or involving a child,
committed as a child, and
• 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’. 92
7.125 The Sex Offenders Registration Act contemplates the inclusion of people who are subject
to the CMIA on the Sex Offenders Register. Depending on the type of offender and
type of offence, registration consequences may flow from either a ‘finding of guilt’ or a
‘sentence’ within the meaning of the Sex Offenders Registration Act. 93
7.126 Section 4(1)(d) of the Sex Offenders Registration Act defines a finding of guilt in relation
to an offence to include a:
• a finding in a special hearing that a person is not guilty because of mental
impairment 94
• a finding in a special hearing that a person committed the offence 95
• a finding in a special hearing that a person committed an offence available as an
alternative 96 , or
• a finding of not guilty because of mental impairment. 97
7.127 For the purposes of the Sex Offenders Registration Act, a sentence is defined to include:
• a declaration under sections 18(4)(a) or 23(a) of the CMIA that the accused is liable to
supervision under Part 5 of the CMIA, and
• an order that the accused be released unconditionally, made under sections 18(4)(b)
or 23(b) of the CMIA. 98
7.128 The Sex Offenders Registration Act also provides for alternative reporting arrangements
for a person with a ‘disability’ defined as a person who is a forensic patient or a forensic
resident under the CMIA. 99 When a forensic patient or forensic resident is subject to
reporting requirements under the sex offenders register, their parent, guardian, carer or
another person nominated by them can make reports. 100
7.129 Disability is also a factor that can be taken into account by a court when considering an
offence of failing to comply with reporting obligations. 101
90 Sex Offenders Registration Act 2004 (Vic) s 11(1). Broadly speaking, Class 1 and 2 offences are sexual offences against or involving a child:
Sex Offenders Registration Act 2004 (Vic) schs 1–2.
91 Broadly speaking, Class 1 and 2 offences are sexual offences against or involving a child: Sex Offenders Registration Act 2004 (Vic) schs
1–2. When a person is sentenced for a Class 1 or 2 offence committed as a child, they are not automatically registered as they would be if
they had been an adult when they committed the offence: Sex Offenders Registration Act 2004 (Vic) s 6(3)(a), schs 1–2.
92 Sex Offenders Registration Act 2004 (Vic) s 11(3).
93 Automatic registration follows a sentence for a Class 1 or 2 offence: Sex Offenders Registration Act 2004 (Vic) s 6(1). The making of a sex
offender registration order can follow a sentence or a finding of guilt: Sex Offenders Registration 2004 (Vic) ss 11(1)–(2A).
94 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 17(1)(b).
95 Ibid s 17(1)(c).
96 Ibid.
97 Ibid s 20(2).
98 Sex Offenders Registration Act 2004 (Vic) s 3. Another relevant order that is included is a restricted involuntary treatment order under section
93 of the Sentencing Act 1991 (Vic).
99 Sex Offenders Registration Act 2004 (Vic) s 3.
100 Ibid s 23(4).
101 Ibid s 46(2).
155