Discussion Paper - Law Reform Commission of Western Australia

For juvenile offenders, a reporting order should notbe made unless the court is satisfied that the offenderposes a risk to the lives or sexual safety of a person orpersons generally and hence the responsibility will beon the state to provide sufficient evidence to justify itscase for registration.The Commission acknowledges that providing for courtdiscretion will utilise additional resources (because policeand other agencies will be required to provide evidenceand/or information to demonstrate why registrationis required). On the other hand, if low-risk offendersare excluded from the scheme, fewer resources will berequired for ongoing monitoring and management ofreportable offenders. In any event, whether an offenderis to be subject to ongoing and onerous obligations overand above the sentence imposed for the original offenceshould not depend solely upon resourcing constraints.Fairness demands that sex offender registration is notimposed unnecessarily.Also included in the proposals in this Paper is the provisionfor a review of reporting frequency, either before a courtor a senior police officer, in order to overcome concernsabout the difficulties for some juvenile offenders whoare arguably subject to excessively frequent periodicreporting. Some offenders appear to be disadvantagedin this regard (eg, offenders living in remote locations,offenders who are subject to ‘overlapping’ obligations withother agencies, and offenders who may find it difficultto comply because of socio-economic disadvantages orlanguage and cultural barriers).The Commission has further proposed that juvenilereportable offenders should be entitled to apply fora review of their registration status after a qualifyingperiod of time in order that there is some incentive forreportable offenders to comply with the scheme, addresstheir offending behaviour and refrain from furtheroffending. If an offender is able to satisfy a court thathe or she no longer poses a risk to the community thejustification for continuing registration and reportingdisappears.The Commission also queries the appropriateness ofpolice-based registration for juvenile offenders and seekssubmissions about whether an alternative therapeuticfocusedapproach would be a better option for thosejuveniles who are considered to be a risk of future sexualoffending.Th e Im p a c t o n Ad u l tRe p o r t a b l e OffendersThe potential for mandatory sex offender registrationto apply unfairly or unnecessarily for adult child sexoffenders is, at first glance, less evident. By and large,sexual abuse of children by adults is abhorrent; however,the Commission’s research and consultations haverevealed a number of exceptional cases involving adult (inparticular, young adult) offenders where there is a strongargument that sex offender registration is inappropriate.Examples of ‘exceptionalcircumstances’ for adultoffendersThe Commission has found from its examinationof case examples that a variety of circumstancesmay be considered ‘exceptional’. In such casesmandatory registration is inappropriate. Instead,the offender should have the right to argue againstregistration. Such examples may include casesinvolving:• honest and reasonable mistake about the age of thecomplainant;• ignorance of the law;• young adult offenders (eg, 18–21 years) who haveengaged in ‘consensual’ sexual activity with an olderunderage child (eg, 14–15 years); and• intellectually disabled adult offenders who haveengaged in ‘consensual’ sexual activity with anolder underage child in circumstances where theintellectual and emotional maturity of both partiesis similar, and who may lack the capacity to complywith reporting obligations.Nonetheless, the Commission does not consider that theterm ‘exceptional circumstances’ should be restricted todefined categories – there is the real potential for casesto arise that fall outside such categories but where sexoffender registration is unnecessary.Problems for adult offendersThe Commission has found that adult reportableoffenders are not immune from many of the problemsexperienced by juvenile reportable offenders. For thoseadult offenders who have committed a reportableoffence in exceptional circumstances, the impact ofthese problems must be taken into account in assessingwhether automatic registration is justified. In particular,x