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

find themselves subject to sex offender registration as aresult of charges arising from sexting.Young juvenile offendersCases examined by the Commission revealed thatoffenders as young as 13 were subject to registration andreporting obligations. In addition, one case involved a21-year-old male who was subject to registration as aconsequence of offending that occurred when he wasonly 11 years old. 15 Information provided by the WesternAustralia Police showed that, as at 31 December 2009,of the 74 reportable offenders who were under the age of18 years, there were five 13-year-olds and one 14-yearold.16 The Commission has serious concerns about theautomatic registration of such young offenders withoutany consideration of the individual circumstances ofthe offence and the offender, and the risk (if any) thatthese children pose to the community. Informationprovided to the Commission revealed that youngjuvenile reportable offenders may experience anxiety anddepression and even suicidal thoughts as a consequenceof registration. 17 Moreover, as noted above, the labellingof young children as ‘sex offenders’ and subjecting themto ongoing obligations to report to police is likely to bedetrimental to their future rehabilitation.Juvenile offenders with mentalhealth issuesDuring its consultations the Commission was told ofcases involving sexual activity between two childrenwhere the offender was intellectually disabled and thecomplainant, although chronologically younger, had asimilar intellectual age as the offender. 18 For example, inone such case, a 17-year-old was dealt with for indecentdealing offences committed against a 10-year-old;however, the offender had a mental age akin to a 10- to12-year-old. 1915. Ibid, Case Example 15.16. It is noted that the figure of 74 juvenile reportable offenders asat 31 December 2009 does not include all reportable offenderswho have been subject to registration as a result of offendingbehaviour that occurred when they were under the age of18 years (there were 212 offenders who had been subject toregistration as a result of offending behaviour that occurredwhen they were under the age of 18 years): see Malcolm Penn,Executive Manager, Legislative Services, Legal and LegislativeServices Unit, Western Australia Police, email attaching reportfrom the Sex Offenders Management Squad, Western AustraliaPolice (17 May 2010).17. Chamarette C, ‘Opinion Provided to the Law ReformCommission of Western Australia’ (10 October 2010).18. See LRCWA, Community Protection (Offender Reporting) Act2004, Discussion Paper (2011) 110.19. Ibid, Case Example 16.In its submission the Mental Health Law Centreemphasised that offenders with intellectual disabilitiesand/or mental illness are ‘likely to experience greatdifficulty in complying with sex offender registrationobligations’ and that these difficulties will be compoundedby other factors such as homelessness or transient livingarrangements, remoteness and language or culturalbarriers. 20 The Commission agrees and notes thatdiscretion is important in order to ensure that mentallyimpaired or intellectually disabled juvenile offendersare only subject to sex offender registration where it isestablished that they pose a risk to other members of thecommunity.Ad u l t sThe Commission’s terms of reference are limited inregard to adult offenders; only those adult offenderswho have committed a reportable offence in exceptionalcircumstances are within the scope of this review. Theterms of reference provide only one example of whatmay constitute exceptional circumstances: persons whocommit a reportable offence involving consensual sexualactivity with a person believed to be of or over the ageof 16 years at the time the offence was committed. TheCommission’s research and consultations revealed otherexamples which it believes are appropriately captured bythe term ‘exceptional circumstances’ and which call for amore flexible approach to sex offender registration.Mistake about ageAs directed by its terms of reference, the Commissionhas given detailed consideration to the defence of honestand reasonable but mistaken belief as to the age of thecomplainant for child-specific sexual offences. 21 In 2002the law in Western Australia was amended so that theavailability of the defence was significantly curtailed. Itis now only available where the accused is no more thanthree years older than the complainant. This means, ineffect, that the defence cannot be argued by any accusedwho is 19 years or older irrespective of how reasonablehis or her belief that the complainant was of or overthe age of consent. A number of cases were drawn tothe Commission’s attention where an adult offenderhad received a relatively lenient penalty as a result ofengaging in consensual sexual activity with an underageperson in circumstances where the offender honestly andreasonably believed that the complainant was of or overthe age of 16 years. 22 In two of these cases the offenders20. Mental Health Law Centre (WA), Submission No 4 (29 April2011) 6.21. LRCWA, Community Protection (Offender Reporting) Act 2004,Discussion Paper (2011) 89–94.22. Ibid, Case Examples 5, 6 & 9.30 Law Reform Commission of Western Australia – Community Protection (Offender Reporting) Act 2004 : Final Report