R v Chan

[2006] VSCA 125

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Sexual offences
4. › Whether sentences manifestly excessive
5. › Relevance of remorse, cooperation, plea of guilty, prospects of rehabilitation
6. › Whether low-level sentence adequately reflected mitigating factors
1. Criminal Law
2. › Sentencing
3. › Sex offender registration orders
4. › Sex Offenders Registration Act 2004 (Vic), s 11
5. › Standard of proof
6. › Whether court satisfied beyond reasonable doubt that offender poses risk to sexual safety
7. › Whether registration order should be set aside where sentencing judge not directed to correct standard of proof
1. Criminal Law
2. › Sentencing
3. › Sex offender registration orders
4. › Whether s 11(1) of Sex Offenders Registration Act 2004 (Vic) confers discretion or imposes obligation
5. › Construction of 'may'
6. › Whether 'may' means 'shall'
1. Criminal Law
2. › Sentencing
3. › Whether sentencing court must disregard consequences under Sex Offenders Registration Act 2004
4. › Sentencing Act 1991 (Vic), s 5(2BC)
5. › Whether provision applies to Class 3 and Class 4 offences as well as Class 1 and Class 2 offences

Quick Take

A sex offenders registration order under s 11 of the Sex Offenders Registration Act 2004 requires the court to be satisfied beyond reasonable doubt that the offender poses a risk to sexual safety, and unchallenged expert evidence of negligible re-offending risk may be sufficient to defeat such an application. Section 5(2BC) of the Sentencing Act 1991 precludes a sentencing court from having regard to registration consequences whether they flow directly from sentence or indirectly from a registration order made after sentence. The reopening of a registration order discretion on appeal does not reopen the sentencing discretion, as the two are separate and discrete.