Written by Bill Doogue. Partner, Doogue & O’Brien Criminal Defence Lawyers
Last week I attended a plea for a client who was charged with failing to notify the Sex Offender Registry that he had changed work places.
Now, let’s rewind the clock a bit and give you the background to this case, putting into context why he was placed on the Sex Offender Registry. He was charged 5 years ago with sexual penetration of a child under 16. The victim was his neighbour who was a sexually active 15 year-old. According to our laws, a person under 16 cannot legally consent however, in common understanding of the term it was consensual and there were no threats or compulsion.
At the time, my client was in his early 30’s. A County Court Judge sentenced him to serve 10 months in prison. The Judge was provided with psychiatric reports and other assessments. He determined that it was clear that he was not a paedophile, nor a sexual predator. Due to the charges that he faced, he was placed on the Sex Offender Register for life. And to be clear, due to the charges, regardless of the situation, the Judge did not have any discretion on that issue.
The client did not appeal the sentence as it was a well-reasoned and articulated decision. The Counsel whom we had briefed, who is now a Supreme Court Judge, considered that we had no grounds. I agreed with his assessment as did, more importantly, the client.
Let’s now, fast forward in time to the present.
Here is a man who had never previously been in trouble before the sex offences and has not been since. The chances of him re-offending are quite remote.
In terms of his breach of the conditions of the Registry, it goes like this:
He is employed by a company and tells the Police their details. They, presumably, check it out in some way. We will call that company X.
He then leaves X and commences working for company Y. He notifies Police about company Y.
After a period, he returns to the employ of company X. He does not tell the Police that he has returned to company X because he believes they already have checked that firm out and he will advise them of this reinstatement to his previous employer in his annual interview.
He is charged with failure to report change of circumstances under the Sex Offender Registry Act. Technically, the charge is definitely made out.
Now, let’s step a little to the side for a moment. From all evidence and reference before me, I am of the opinion that the Sex Offender Registry achieves very little. I have never heard that it has solved or prevented a crime. It simply appears to be a systemic harassment of people who have been punished by Courts.
But, leaving that to the side, what our client has done endangers no one. He has already told them of this work place. He does not work near kids (not that he poses a risk anyway) and he was not attempting any covert behaviour.
Therefore, I don’t think it would be out of order to expect a fine for this sort of Breach of the Sex Offender Registry conditions, would you? If that?
The Police Prosecutor proceeds to make the following submissions:
This breach deserves an immediate gaol term.
Our client is clearly dangerous because he is on these orders for life.
His obligations were clearly explained to him.
All of which is complete twaddle. Not an ounce of truth in it.
There is an enormous amount of ambiguity about what does and does not have to be reported. Do you need to report when you get an email address from your employer? I have had a number of differing responses to that one.
If you give a phone back to your parole office (who has lent it to you) do you have to report that?
Apparently the answer to that is yes, because one of our clients was charged with that offence.
I am privy to a litany of such stories where people are imprisoned for such offences; a week in gaol for not reporting that you have a new car, as an example… and I shake my head in disappointment.
What underpins this? What good does it do?
If our intention is to rehabilitate marginalized people this does nothing to achieve that. If we believe it is protecting people, then I fail to understand that at all.
Many sex offenders have psychological and psychiatric problems. They face a life time of going to Court on charges of this nature.
The fact that a place on the Registry paints everyone on the list with the same brush is, in my view, a systemic failure. Our client has described to me what happens in the annual interview. He attends a Police Station and is placed in an interview room. The Police will then lock the door and wander off. They return after an hour or more later to ask him the set questions that they have. In a manner not unlike their interviewing style, I see this purely as tactical bullying.
The Magistrate said last week, in sentencing our client, that if he had priors for Breaching the Sex Offender Registry that he might not have given him the $1000 fine that he did. That accords with sentencing principles and is a sensible address to give a person being sentenced.
But I still ask myself the question: why was he ever charged?
I often think about the saying “Treat people like animals and they will act like animals”.
If we treat sex offenders who have served their time in the manner that we do, then we are making their re-offending more likely.
And doesn’t that fly directly in the face of what the Sex Offender Registry is trying to achieve?
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