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

emote communities where a full appreciation of the ageof consent laws may be limited. 31Adult offenders with mentalhealth issuesAdult offenders with mental health issues pose particularproblems in relation to the appropriateness of sex offenderregistration laws. As acknowledged in the DiscussionPaper, such offenders may pose a risk to the communityand therefore registration may well be necessary. On theother hand, the culpability of intellectually disabled ormentally impaired offenders may be significantly reduced,especially in cases where the mental age of the offenderis similar to the age of the complainant. Moreover, asnoted earlier such offenders may find it very difficult tocomply with the reporting obligations in practice. 32OtherThe above categories represent the types of cases involvingadults that will most commonly demand a discretionaryapproach; however, there may be other exceptional caseswhich fall outside the parameters of these categories. 33A recent case in Tasmania provides a useful example. Inthis case 34 the offender pleaded guilty to one charge ofpossessing child exploitation material. A conviction wasrecorded and the offender was placed on a good behaviourbond. He was also ordered to comply with the reportingobligations under the Community Protection (OffenderReporting) Act 2005 (Tas) for a period of two years.He appealed this decision. The 54-year-old offenderwho was married with four adult children had no priorconvictions. The offence was an unusual example ofchild pornography. In the process of downloading lawfulpornography the offender came across and downloaded apublication called the ‘The Pearl’ which was an electronicversion of a Victorian-era magazine and it containedjournal-style entries describing children as young as 12years engaging in sexual activity with other childrenand adults. It was fictional and contained no images orpictures. The magistrate accepted that the offender hadobtained this material recklessly rather than deliberatelyalthough he did admit to being familiar with its contents.During the appeal it was observed that it had since been31. Although the Commission is aware of a Tasmanian case (Stateof Tasmania v H, 29 September 2011, Wood J) where a 33-yearold offender was dealt with for engaging in a sexual relationshipwith a 16-year-old who was friends with offender’s son. Thesexual relationship was initiated by complainant and theoffender mistakenly believed that the age of consent was 16 (inTasmania the age of consent is 17).32. LRCWA, Community Protection (Offender Reporting) Act 2004,Discussion Paper (2011) 146–148.33. See, eg, ibid, 152–53 and Case Example 27.34. [Case name withheld] [2011] TASSC 41.discovered that the publication could be purchasedonline and from bookshops from mainstream suppliers.It was also emphasised that because the publication wasfictional no child had been exploited and there was nosuggestion that the offender was a paedophile. Giventhe circumstances of the offence and the offender it wasdecided on appeal that a conviction should not have beenrecorded and that the offender should not be subject tothe provisions of the Community Protection (OffenderReporting) Act 2005. If this case had occurred in WesternAustralia the offender would have automatically beensubject to registration as a sex offender for eight years.In March 2011, a young adult offender in WesternAustralia received a fine of $1,500 for one count ofindecently recording a child of or over the age of 13years and under the age of 16 years. 35 At the time of theoffence he was 21 years old. The offence took place whentwo 17-year-old males were staying at the offender’shouse; they all were communicating via MSN withthe complainant (and one of the males was also talkingto her on the phone). The complainant’s age is notapparent from the transcript of proceedings; however,defence counsel stated that the offender thought thecomplainant was 16 years or older. The complainantwas persuaded to lift her top and expose her breasts ona webcam and, without her knowledge or consent, theoffender pressed the print screen capturing a still imageon his computer. The offender then assisted the othertwo males to edit the image and words were inserted tocreate a poster with the photo, the complainant’s name,her phone number and some very unsavoury words. Theother two males distributed the poster at and outsidethe complainant’s school. They also placed the photoon Facebook and MySpace. The incident caused thecomplainant severe embarrassment and distress and asa consequence she had to move schools. The sentencingjudge concluded that although the two juvenile maleco-offenders were more actively involved in producingand distributing the poster (they had been fined $300),this did not reduce the offender’s culpability because heenabled it to happen by capturing the still image. Theoffender had no prior convictions other than one minorunrelated matter for which he had received a spentconviction. The sentencing judge made the followingobservation:Young people like you must understand the dangersof modern technology. What may be considered aprank or a joke between mates can cause irreparabledamage.The judge also commented that:35. [Case name withheld] Transcript of Proceedings, Sleight J,30 March 2011.32 Law Reform Commission of Western Australia – Community Protection (Offender Reporting) Act 2004 : Final Report