Community Protection (Offender Reporting) Act 2004 - Law Reform ...

interest’ test. When assessing the ‘public interest’ testin such cases, close attention should be given to thefollowing factors:• the relative ages, maturity and intellectual capacityof the complainant and the offender;• whether the complainant and offender were in arelationship at the time of the offending and if so,the length of the relationship;• whether the offending was ‘consensual’, in thesense that (despite consent being irrelevant to theprimary issue) the complainant was capable ofconsenting and did in fact consent;• whether the offending to any extent involvedgrooming, duress, coercion or deception;• whether, at the time of considering whether thematter should proceed, the complainant and theoffender are in a relationship;• the attitude of the complainant and her family orguardians toward the prosecution of the offender;• whether the offending resulted in pregnancy andif so, the sequelae of the pregnancy; and• any other circumstance which might berelevant to assessing the ‘public interest’ in thesecircumstances. 21Although people consulted by the Commission raisedconcerns about juveniles being charged for consensualsexual activity and as a result of behaviours such assexting, the Commission did not have any directevidence to demonstrate that the police and the DPPwere unfairly or inappropriately charging young peoplefor such behaviour. The Commission was informed bythe DPP that prosecutions are usually only continuedagainst juveniles if there is evidence of abuse, coercion,age disparity or lack of consent. However, given the caseexamples examined and the anecdotal accounts heard bythe Commission, submissions were sought about whetherthe DPP Statement of Prosecution Policy and Guidelines2005 should be amended to include specific criteria tobe considered when determining if a juvenile should beprosecuted for a child sexual offence and whether thedecision to charge a juvenile with a child sexual offenceshould be overseen by a senior police officer. 22Five respondents made submissions in favour of specificguidelines for the prosecution of child sexual offencescommitted by juveniles. 23 The Aboriginal Legal Service21. Victoria Office of Public Prosecutions, Prosecution Polices andGuidelines (2008–2010).22. LRCWA, Community Protection (Offender Reporting) Act 2004,Discussion Paper (February 2011) Question A.23. Aboriginal Legal Service of Western Australia, Submission No10 (May 2011); Legal Aid WA, Submission No 11 (30 May2011); Department for Child Protection, Submission No 19(17 June 2011); Law Society of Western Australia, Submissionfavoured the Victorian model and Legal Aid providedsome detail of the factors which could be included inthe guidelines. 24 On the other hand, the Departmentof Corrective Services submitted that there should beseparate guidelines for the prosecution of child sexualoffences but that these guidelines should not be specificto juvenile offenders. Only the DPP opposed specificguidelines and argued that the current general guidelinesfor the prosecution of juveniles are appropriate. 25The Commission has concluded that specific guidelinesmodelled on the Victorian provision would be anappropriate inclusion in the DPP Statement of ProsecutionPolicy and Guidelines 2005. While current prosecutorialpractice may reflect the tenor of such guidelines, theformal inclusion of guidelines will ensure that suchpractices continue in the future and will also provide abenchmark for defence counsel to make representationsto the DPP in appropriate cases.Recommendation 19Prosecutorial policyThat the Office of the Director of Public Prosecutionsamend its Statement of Prosecution Policy andGuidelines 2005 to include a specific policy relatingto the prosecution of juveniles for child sexualoffences and that this policy be modelled on theVictoria Office of Public Prosecutions, ProsecutionPolicies and Guidelines 2008—2010 Policy 2.9.2.The Commission also posed the question whether thedecision to charge a juvenile with a child sexual offenceshould be overseen by a senior police officer. 26 TheWestern Australia Police responded by advising thatthe decision to charge a juvenile with a child sexualoffence is currently overseen by a senior police officerand this refers to the rank of sergeant or above. Itwas also noted that ‘in most regional areas, the LocalDistrict Manager for reportable offenders is a Sergeantwho works autonomously within the District’. 27 TheNo 21 (21 June 2011); Department of Indigenous Affairs,Submission No 22 (5 July 2011).24. For example, whether the children involved were siblingsand the impact of prosecution on the family; whether thejuvenile offender has any intellectual disability, mental illnessor developmental delays; and whether the juvenile offender isunder the age of 14 years and has been exposed to pornographicmaterial: Legal Aid WA, Submission No 11 (30 May 2011).25. Office of the Director of Public Prosecutions, SubmissionNo 17 (2 June 2011).26. LRCWA, Community Protection (Offender Reporting) Act 2004,Discussion Paper (February 2011) Question A.27. Western Australia Police, Submission No 18 (30 May 2011);Western Australia Police, Submission No 18A (9 September2011).94 Law Reform Commission of Western Australia – Community Protection (Offender Reporting) Act 2004 : Final Report