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

In contrast, some respondents suggested that theretrospective right of review should extend beyond thesingle application proposed by the Commission. Asnoted earlier, Chief Judge Peter Martino expressed theopinion that the provision for only one application forreview is ‘unduly restrictive’. 22 Likewise, the AboriginalLegal Service stated that there should be no limitationon the number of reviews available. 23 The Departmentof the Attorney General submitted that ‘there shouldbe provision for the ability to seek leave of the court toapply for a subsequent review’. 24 While the Commissionunderstands (but does not necessarily agree with) thesesentiments in regard to the general right to seek a reviewafter half of the reporting period has expired (as set outin Recommendations 7 and 8 above), it does not followthe reasoning in regard to the proposed retrospectiveright of review. These submissions appear to haveoverlooked that the purpose of the retrospective rightof review is to place existing reportable offenders in thesame position as any future offenders found guilty of areportable offence, and that this retrospective right ofreview operates over and above the general right to applyfor a review after half the reporting period has expired.If an existing reportable offender seeks a review of hisor her reportable offender status in accordance with theCommission’s recommendation and the applicationfails, the offender remains entitled to seek a review afterthe qualifying period has expired.3.4.5.That an application for a review under thissection can only be made once.That upon an application the court may orderthat the offender is no longer subject to thereporting obligations under the CommunityProtection (Offender Reporting) Act 2004 (WA)and is no longer a reportable offender if it issatisfied that the offender does not pose a risk tothe lives or sexual safety of one or more persons,or persons generally.That in determining the application the courtmay take into account the following –(a) any evidence given during proceedings forthe offence;(b) any document or record (including anyelectronic document or record) served onthe offender by the prosecution;(c) any statement tendered, or deposition made,or exhibit tendered, at any proceedings inrelation to the offence;(d) any evidence given by a victim or theoffender in relation to the making of theorder;(e) any pre-sentence report given to the court;RECOMMENDATION 9Retrospective right of review for juvenilereportable offenders1. That the Community Protection (OffenderReporting) Act 2004 (WA) be amended toprovide that an existing juvenile reportableoffender may apply to the President of theChildren’s Court or to the District Court for areview of his or her reportable offender status atany time.2. That an existing juvenile reportable offendermeans a person who is subject to the CommunityProtection (Offender Reporting) Act 2004 (WA)only as a result of a reportable offence committedwhile he or she was under the age of 18 yearsat, or immediately before, the commencementof the provisions that establish a discretionaryjuvenile offender reporting order (as set out inRecommendation 1).22. Chief Judge Peter Martino, Submission No 6 (24 May 2011).23. Aboriginal Legal Service of Western Australia, SubmissionNo 10 (May 2011).24. Department of the Attorney General, Submission No 20(20 June 2011).(f) any victim impact statement given to thecourt;(g) any mediation report given to the court;and(h) any other matter the court considersrelevant.6. The offender may appeal against the decision inaccordance with s 23 of the Criminal Appeals Act2004 (WA).7. The prosecution may appeal against the decisionin accordance with s 24 of the Criminal AppealsAct 2004 (WA).8. That if the court hearing the applicationdetermines that the applicant should remainsubject to the juvenile offender reportingorder and the reporting obligations under theCommunity Protection (Offender Reporting)Act 2004 (WA) the applicant remains entitledto apply for a review in accordance withRecommendation 8.66 Law Reform Commission of Western Australia – Community Protection (Offender Reporting) Act 2004 : Final Report