Have you been charged for failing to comply with reporting obligations?
If you have been charged for failing to comply with reporting obligations required under the Sex Offenders Registration Act 2004 (Vic), you need to consult an experienced criminal lawyer, before appearing in Court.
A registrable offender who, without a reasonable excuse, fails to comply with reporting obligations commits an offence punishable by up to five years imprisonment (ss 46(1)-(1A)) or two years if the information relates to the offender’s name, date of birth, vehicle, tattoos or travel plans (s 46(1B)).
See ‘Furnish false and misleading information’ for information about charges related to providing false or misleading details while purporting to comply with these reporting obligations (s 47).
See ‘Sex Offenders Register‘ for more information about the registration scheme and reporting requirements.
There are several offences under section 46 of the Sex Offenders Registration Act 2004, which distinguish between the particular reporting obligations an offender failed to comply with in either the initial or ongoing reporting requirements.
A person commits an offence for failing to comply with reporting obligations under section 46 if:
- the accused was a registrable offender subject to reporting obligations,
- the accused failed to report specified details when required, and
- the accused had no reasonable excuse for his or her failure to report
|Indictable offences for breaching reporting requirements|
|46(1A)||Without reasonable excuse, a registrable offender fails to comply with any of their reporting obligations in respect of details to which specified subsections in section 14 apply||5 years|
|46(1)||Without reasonable excuse, a registrable offender fails to comply with any ongoing reporting requirement (other than reporting obligations in respect of details to which section 14 applies)||5 years|
|Summary offence for breaching reporting requirements|
|46(1B)||Without reasonable excuse, a registrable offender fails to comply with any of their reporting obligations in respect of details to which specified subsections in section 14 apply.||2 years|
A person convicted of a ‘registrable offence’ is a ‘registrable offender’, becoming subject to sex offender registration under the Sex Offenders Registration Act 2004 (Vic). Upon registration, sex offenders must comply with various reporting obligations.
The purpose of sex offender registration is to require registrable offenders to keep police informed of their whereabouts and personal details to reduce the likelihood of reoffending, facilitate investigations and prevent offenders from working in child-related employment.
Sections 46(1B) and 46(1A) specify the personal details that a registrable offender must report in section 14. Personal details listed in section 46(1A) appear to be those that may change more frequently, such as address, email, telephone number, internet user names and memberships of organisations with child members.
However, the details listed in s 46(1B), such as name, date of birth, vehicle details and distinguishing marks or tattoos, may not change as frequently and may be considered less significant for monitoring purposes.
Section 46(1) captures breaches for all other reporting obligations under Part 3 of the Sex Offenders Registration Act 2004.
Specified details under s 46(1A)
For the indictable offence under s 46(1A), the specified details in s 14 that an offender must report are:
(d) the address of each residence (if any);
(da) telephone (if any);
(db) email address (if any);
(dc) name of any Internet service provider;
(i) Internet user names; or
(ii) instant messaging user names; or
(iii) chat room user names; or
(iv) other user name or identity—
used or intended to be used through the Internet or other electronic communication service;
(e) names of each child with whom he or she has contact;
(ea) in respect of each child with whom he or she has contact—
(i) the child’s age, address and telephone number; or
(ii) if the child’s age, residential address or telephone number is not known to him or her—the location where the contact takes place;
(f) if he or she is employed—
(i) the nature of employment; and
(ii) the name of employer (if any); and
(iii) the address of each of the employment premises or, if he or she is not generally employed at any particular premises, the name of each of the localities in which he or she is generally employed;
(g) details any affiliation with a club or organisation that has child membership or participation in its activities;
(j) whether he or she has ever been found guilty in any foreign jurisdiction of a corresponding registrable offence and, if so, where that finding occurred or that order was made;
(k) if he or she has been in government custody since he or she was sentenced in respect of a registrable offence or corresponding registrable offence, details of when and where that government custody occurred.
Specified details under s 46(1B)
For the purposes of summary offence s 46(1B), specified details in s14 a registered offender must report when required are:
(a) name and any other name by which he or she is, or has previously been, known;
(b) in respect of each name other than his or her current name, the period during which he or she was known by that other name;
(c) his or her date of birth;
(h) the make, model, colour and registration number (if any) of any motor vehicle or caravan owned by, or generally driven by, him or her;
(i) details of any tattoos or permanent distinguishing marks that he or she has (including details of any tattoo or mark that has been removed);
(l) if, at the time of making a report under this Division, he or she leaves, or intends to leave, Victoria to travel elsewhere in Australia on an average of at least once a month (irrespective of the length of any such absence)—
(i) in general terms, the reason for travelling; and
(ii) in general terms, the frequency and destinations of the travel;
Defences to failing to report
In determining whether a person had a reasonable excuse for failing to comply with his or her reporting obligations under s 46(2), the court has regard to the following matters—
(a) the person’s age; and
(b) whether the person has a disability that affects the person’s ability to understand, or to comply with, those obligations; and
(c) whether the form of notification given to the registrable offender as to his or her obligations was adequate to inform him or her of those obligations, having regard to the offender’s circumstances; and
(d) any other matter the court considers appropriate.
It is a defence to charges under section 46 of the Act if the accused establishes that at the time the offence is alleged to have occurred, the accused had not received a notice and was otherwise unaware of their reporting obligations (s 46(3)).
Honest and Reasonable Mistake of Fact
Notwithstanding that the charge itself prescribes the availability of the defence of reasonable excuse, other defences apply such as honest and reasonable mistake. Using a recent case example, police would not withdraw against one of our clients who was a registered sex offender and who had updated his passport but had not realised that the passport number changed and therefore had failed to report the change. The accused had made it plain on his record of interview that he was not aware that the number changed, nevertheless the police proceeded against him. Following hearing the evidence and a contested hearing and submissions from one of our lawyers, a Magistrate found for the accused and struck the charge out, as is customary in the Magistrates Court a cost order to the tune of $7700 followed. Whether you have an honest and reasonable mistake of fact defence, should always be considered in close consultation with an experienced criminal lawyer.
In the Magistrates’ Court, in the three years to 30 June 2021, the most common sentence for a charge of failure to comply with reporting obligations under section 46(1) was imprisonment (37.4% of charges). Lengths of imprisonment ranged from less than three months to 24 months duration.
In the higher courts, in the five years to 30 June 2021, the most common sentence was imprisonment (90% of charges) for an offence under s 46(1). Sentences ranged from less than one month to 3 years duration during this period.
Range of sentences imposed in higher courts
The offender, Xerri (a 34-year-old male), was a registered sex offender with reporting obligations who was on parole at the time of offending. Xerri breached reporting obligations by failing to report that he obtained a new mobile phone number on two occasions and by failing to report that he had created new social media accounts on two separate occasions. Xerri pleaded guilty to these charges. The accused was also found guilty of sexual assault and supplying a drug of dependence to a child, to which Xerri pleaded not guilty.
Xerri’s offending involved frequent and continuous contact with underage females using social media, and he deliberately evaded his reporting conditions by obtaining mobile phones and accounts surreptitiously over an extended period of time. His offending showed a complete disregard for the terms of his release and reporting obligations.
The sentencing judge considered the objective gravity and moral culpability of the whole of Xerri’s offending to be very high. The judge noted that Xerri’s offending must be met by principles of general and specific deterrence and denunciation.
The judge also noted that Xerri’s prospects of rehabilitation were very poor, and that he is likely to spend much of the rest of his life in prison if he does not receive psychological intervention and counselling. The judge imposed a sentence of 51 months imprisonment with a non-parole period of 38 months.
The offender (AB) was a registered sex offender aged 43. AB pleaded guilty on an indictment to failing to comply with reporting conditions and the summary matters of contravening a condition of the sex offenders register. In breach of these conditions, AB obtained a phone that he used to gamble. AB breached reporting conditions on two occasions and condition requirements once more in an unspecified manner.
In determining an appropriate sentence, the judge considered that the accused entered an early plea, had prior convictions for breaching reporting obligations, was on bail at the time of the offending, and had mental health issues and remote prospects of rehabilitation.
The offender was sentenced to a total period of 9.04 months imprisonment.
The offender, Bruzzese, failed to report his employment as a manager at a restaurant in accordance with reporting obligations. Bruzzese also sexually assaulted a 20-year-old victim working on a temporary visa who went to Bruzzese’s restaurant looking for work.
In reaching a sentence, the sentencing judge considered an early plea of guilty, prior convictions for driving and similar offences, Verdins principles on account of mental impairment, family support and fair prospects of rehabilitation.
The offender was sentenced to 15 months imprisonment and a 24-month community corrections order.
What to do if you have been charged
If you have been charged or if the Victoria Police want to interview you in relation to an alleged failure to comply with reporting obligations, call an experienced sex offence lawyer before participating in a record of interview. For more information, see police recorded interviews.
The law is constantly changing, and there have been many amendments to sex offence laws and criminal procedure. A criminal lawyer with specialist experience defending sex offences and related charges is critical to managing your matter effectively to achieve the best outcome for you.
Recent cases handled at Dribbin & Brown
See the following examples of some both recent and dated matters handled by our firm concerning breaches of section 46 of the Sex Offenders Registration Act: