Discussion Paper - Law Reform Commission of Western Australia

Reportable offendersWhether a particular offender is subject to registrationand reporting obligations under the CommunityProtection (Offender Reporting) Act 2004 (WA) (‘theCPOR Act’) is determined by the statutory definition of‘reportable offender’. 1 For present purposes, reportableoffenders can be grouped into three main categories:• Mandatory registration – offenders who are orhave been sentenced for a Class 1 or Class 2 offenceon or after 1 February 2005. 2• Retrospective registration – offenders who havebeen previously sentenced for a reportable offenceand who are currently in custody or subject tosupervision; or offenders who have previously beensentenced in relation to two reportable offences andat least one of those offences was committed in theeight years prior to 1 February 2005.• Discretionary registration – offenders who are orhave been sentenced for an offence that is not a Class1 or Class 2 offence and the court makes an offenderreporting order or past offender reporting order.Ma n d a t o r y RegistrationAn offender who is sentenced for a Class 1 or Class 2offence (refer to table below) is automatically subjectto registration and reporting requirements. The term‘sentence’ is defined very broadly under s 3 of the CPORAct to include:3• an order releasing an offender without sentence;• a conditional release order (ie, good behaviourbond); 4• an order to impose no punishment or no punishmentwith conditions; or a recognisance on a youngoffender; 5• a custody order made in relation to an accused whois acquitted on account of unsoundness of mind; 61. Community Protection (Offender Reporting) Act 2004 (WA) s 6.2. This includes offenders who are sentenced for a Class 3 offenceat any time after commencement of the legislation providedthat they have previously been convicted of another Class 3offence. Class 3 offences are listed in Schedule 3 and coverserious and sexual offences committed against adults; however,as discussed in the Introduction to this Paper, Schedule 3 hasnot yet been proclaimed.3. Under Sentencing Act 1995 (WA) pt 6.4. Under Sentencing Act 1995 (WA) pt 7.5. Under Young Offenders Act 1994 (WA) ss 66, 67, 69 or 70.6. Under Criminal Law (Mentally Impaired Accused) Act 1996(WA) pt 4.• a special order requiring a serious and repeat youngoffender to remain in custody for an additional18 months; 78• a pre-sentence order; and• any equivalent order under the laws of anotherjurisdiction.Thus, anyone found guilty of a Class 1 or Class 2 offenceis subject to the registration scheme irrespective of theleniency of the sentence imposed or the circumstancesof the offence. 9 However, arguably, a referral to a juvenilejustice team is excluded from the reach of the mandatoryregistration provisions. 10 A juvenile offender can bereferred by the Children’s Court to a juvenile justiceteam but only if the offence is not listed in Schedule1 or 2 of the Young Offenders Act 1994 (WA). Class 1or Class 2 offences which are potentially referable to ajuvenile justice team include indecent dealing of a childand sexual penetration of a child aged between 13 and16 years.Class 1 offences are listed in Schedule 1 of the CPORAct and include any equivalent offence in anotherjurisdiction. 11 Class 2 offences are listed in Schedule 2. 12Schedules 1 and 2 of the CPOR Act are reproducedbelow for ease of reference. In the overwhelmingmajority of instances, Schedules 1 and 2 offences aresexual offences against or involving children.7. Under Young Offenders Act 1994 (WA) s 126.8. A pre-sentence order under Part 3A of the Sentencing Act 1995(WA) is currently the only prescribed order under reg 6A of theCommunity Protection (Offender Reporting) Regulations 2004(WA).9. Section 111 also provides that the fact a conviction becomesspent does not affect the person’s reportable offender status.10. The definition of ‘sentence’ under s 3 of the CPOR Actis not exhaustive; however, because it refers to a number ofless serious sentencing options it can be inferred that by notincluding a referral to a juvenile justice team it was intended toexclude this option from the ambit of mandatory registration.The Commission understands that, in practice, it is generallyaccepted that juvenile offenders who admit responsibility forthe offence and are referred to a juvenile justice team are notrequired to register: consultation with Claire Rossi and SarahDewsbury, Legal Aid WA (8 June 2010).11. Community Protection (Offender Reporting) Act 2004 (WA) s 10.Class 1 offences are defined to include any offence involving anintention to commit a Class 1 offence or an attempt, conspiracyor incitement to commit a Class 1 offence.12. Community Protection (Offender Reporting) Act 2004 (WA)s 11. Class 2 offences are also defined to include attempts,conspiracies, etc; certain prescribed Commonwealth offences;and equivalent offences in other jurisdictions.36 Law Reform Commission of Western Australia – Community Protection (Offender Reporting) Act 2004: Discussion Paper