THE STATE OF WESTERN AUSTRALIA -v- CMR [2026] WACC 4

[2026] WACC 4 Page 1 JURISDICTION : CHILDREN'S COURT OF WESTERN AUSTRALIA ACT : COMMUNITY PROTECTION (OFFENDER REPORTING) ACT 2004 CITATION : THE STATE OF WESTERN AUSTRALIA -v- CMR [2026] WACC 4 CORAM : QUAIL P HEARD : 12 JUNE 2026 DELIVERED : 12 JUNE 2026 PUBLISHED : 10 AUGUST 2026 FILE NO/S : CCPE 4668 of 2025 CCPE 4675 of 2025 BETWEEN : THE STATE OF WESTERN AUSTRALIA Applicant AND CMR Respondent Catchwords: Young offenders - Juvenile offender reporting orders - Distinction between adult and child offenders - Meaning of 'reportable offender' and 'reportable offence' - Whether child offender becomes subject to reporting obligations only upon making of juvenile offender reporting order - Construction of s 6, s 9and s 14B - Risk assessment - Whether statutory precondition in s 14B(3) satisfied - Exercise of discretion -- 1 of 12 -- [2026] WACC 4 Page 2 Legislation: Community Protection (Offender Reporting) Act 2004 (WA), s 6, s 9, s 13(1)(a)(ii), s 14B, Community Protection (Offender Reporting) Regulations 2004. reg 8 Result: Juvenile Offender Reporting Order not made Representation: Counsel: Applicant : Mr E McClintock Respondent : Ms I Clark Solicitors: Applicant : Office of the Director of Public Prosecutions for WA Respondent : TASIC Legal Case(s) referred to in decision(s): Commissioner of Police v ABC [2010] WADC 161 -- 2 of 12 -- [2026] WACC 4 QUAIL P Page 3 QUAIL P: Introduction 1 On 5 May 2026, I sentenced CMR for two offences of sexual penetration of a child under 13 years to a total of 10 months detention subject to juvenile conditional release order for a period of 10 months with supervision and program requirements. 2 At sentencing, the State applied for a juvenile offender reporting order (JORO) under the Community Protection (Offender Reporting) Act 2004 (WA) (the Act). CMR's counsel objected to a JORO being made. I adjourned the decision of whether to make the order to receive written submissions from both parties about the construction of the Act. 3 At a hearing on 12 June 2026, I determined that a JORO should not be made. In delivering that decision, I indicated that I would publish my reasons. These are those reasons. They are organised into three parts. Firstly, I consider the application of the Act to young offenders following the recent amendments. Secondly, I consider the power to make a JORO. Thirdly, I consider whether a JORO should be made in the circumstances of this case. Application of the Community Protection (Offender Reporting) Act to Young Offenders Recent legislative amendments 4 The Act was recently amended by the Community Protection (Offender Reporting) Amendment Act 2024 (WA). The 'Stage 2' amendments,1 which came into operation from 31 December 2025, significantly reformed the offender reporting regime as it applies to young offenders. Prior to these amendments, reporting obligations arose automatically by operation of the law. Under the new framework, a young offender only becomes subject to reporting obligations if the court determines to make a JORO in relation to the relevant offence. 5 I generally agree with the parties' submissions concerning the effect of the amendments, although I differ in some respects as to the interpretation of the specific statutory mechanisms by which the amended regime operates. 1 Community Protection (Offender Reporting) Amendment Act 2024 (WA), pt 3. -- 3 of 12 -- [2026] WACC 4 QUAIL P Page 4 Meaning of 'reportable offender' and 'reportable offences' 6 The offender reporting regime provided by the Act applies to persons who fall within the definition of a 'reportable offender'. Section 6(1) provides: Subject to subsections (4), (5) and (5A), a reportable offender is a person whom a court, on or after the commencement day, sentences for a reportable offence. Accordingly, subject to those listed subsections, a person who satisfies the requirements of s 6(1) automatically becomes subject to the reporting regime. No separate order of the court is required in addition to the sentence imposed for the 'reportable offence'. 7 The term 'reportable offence' is defined in s 9. Prior to the commencement of the recent amendments, that definition depended solely on whether the offence fell within one of the prescribed classes of offences. Subject to the limited exception in s 6(4), a Class 1 or Class 2 offence was treated as a 'reportable offence' regardless of whether it had been committed by a child or an adult. Consequently, a person convicted of such an offence automatically became a 'reportable offender' under s 6(1). 8 In its 2012 Final Report on the operation of the Act, the Law Reform Commission of Western Australia expressed concern that the reporting regime did not distinguish between child and adult offenders, observing that:2 The failure of the [the Act] to differentiate between juveniles and adults in this regard is particularly concerning bearing in mind that the justice system treats juveniles differently and focuses on their rehabilitation and reintegration. […] there are a considerable number of cases where the automatic registration of juveniles has been unfair or inappropriate. 9 Consequent on the Commission's recommendations,3 the amendments replaced the definition of 'reportable offence' in s 9. The amended provision now provides: 2 Law Reform Commission of Western Australia, Community Protection (Offender Reporting) Act 2004, Final Report (2012) 42. 3 Western Australia, Parliamentary Debates, Legislative Council, 18 September 2024, 4689–4692 (Mr S Dawson). See also, Explanatory Memorandum, Community Protection (Offender Reporting) Amendment Bill 2024 (WA) 37-38. -- 4 of 12 -- [2026] WACC 4 QUAIL P Page 5 9. Meaning of reportable offence For the purposes of this Act, a reportable offence is — (a) any of the following offences (other than an offence committed by a person when they were a child) — (i) a Class 1 offence; (ii) a Class 2 offence; or […] (c) an offence that results in the making of an offender reporting order or past offender reporting order; or (d) a Class 1 offence or Class 2 offence committed by a person when they were a child that results in the making of a juvenile offender reporting order 10 The effect of the amended definition is that for the purposes of s 6(1), a person who committed a Class 1 or Class 2 offence as a child is not a 'reportable offender' unless and until a JORO is made, as they have not otherwise committed a 'reportable offence'. 11 In conjunction with those changes, this position is effected by the newly inserted s 6(5A), which provides: If a reporting order is made in relation to an offence committed by a person after the person is sentenced for the offence, the person is taken to be a reportable offender when the order is made rather than when the person is sentenced for the offence. 12 The term 'reporting order' is defined in s 3 to include an offender reporting order, a past offender reporting order and a JORO. These are distinct orders made under different provisions of the Act, and the circumstances enlivening the power to make them differ. However, they share a common statutory mechanism. Each applies in respect of an offender who would not automatically fall within the definition of a reportable offender under s 6(1). Upon the making of such an order, the relevant offence becomes a 'reportable offence' by operation of either 9(c) or s 9(d), as is applicable, with the consequence that the offender becomes a 'reportable offender'. -- 5 of 12 -- [2026] WACC 4 QUAIL P Page 6 13 It follows that CMR is not automatically subject to the reporting regime. Whether CMR becomes a reportable offender depends upon whether a JORO is made. Power to make juvenile offender reporting orders Application of s 14B 14 Section 14B of the Act makes provision for JOROs as follows: 14B. Juvenile offender reporting orders (1) This section applies if a court finds an offender guilty of any of the following offences committed when the offender was a child — (a) a Class 1 offence; (b) a Class 2 offence; (c) if the offender concerned has previously been found guilty of a Class 3 offence — another Class 3 offence. (2) The court must consider making an order under subsection (3) at the time the offender is sentenced for the offence. (3) The court may make an order that the offender comply with the reporting obligations of this Act if the court is satisfied that the offender poses a risk to the lives or the sexual safety of 1 or more persons, or persons generally. (4) For the purposes of subsection (3), it is not necessary that the court is able to identify a risk to a particular person or particular persons or a particular class of persons. (5) In deciding whether to make the order in relation to an offence, the court may take into account the following — (a) any evidence given during proceedings for the offence; (b) any document or record (including an electronic document or record) served on the offender by the prosecution; (c) any statement tendered, or deposition made, or exhibit tendered, at any proceedings in relation to the offence; (d) any evidence given by a victim or the offender in relation to the making of the order; (e) any pre-sentence report given to the court; -- 6 of 12 -- [2026] WACC 4 QUAIL P Page 7 (f) any victim impact statement given to the court; (g) any mediation report given to the court; (h) any other matter the court considers relevant. (6) The court may make the order in relation to an offence — (a) at the time the person is sentenced for the offence; or (b) at a later time if more time is necessary to enable the information referred to in subsection (5) to be presented to the court. (7) The court may make an order under subsection (3) on application from the prosecution or on the court’s own initiative. (8) Despite subsection (7), if the court does not consider making an order under subsection (3), an application for the order may be made to the court by the prosecution or the Commissioner within the period of 6 months after the day on which the person is sentenced for the offence. (9) For the purposes of an application made under subsection (8), the reference in subsection (5)(b) to the prosecution is taken to include a reference to the Commissioner. (10) The court cannot make an order under subsection (3) in relation to a person merely because the person as a child committed a single offence (including an offence under a law of a foreign jurisdiction) that falls within a class of offences that are prescribed under section 6(4). 15 Pursuant to s 14B(1), the section applies where a young offender is found guilty of a Class 1 or Class 2 offence. In those circumstances, s 14B(2) requires the court to consider whether to make a JORO at the time of sentencing. Although the court is already required to consider the matter, s 14B(7) additionally provides that a JORO may be made either on the court's own initiative or on application by the prosecution. 16 The specific power to make a JORO is conferred by s 14B(3). The exercise of that power is discretionary, enlivened upon the court being satisfied that the offender poses the requisite risk. I return to that issue later in these reasons. Section 14B(10) constraint 17 In addition to being confined to the offences identified in s 14B(1), the power to make a JORO is also subject to the limitation imposed by -- 7 of 12 -- [2026] WACC 4 QUAIL P Page 8 s 14B(10). At first, s 14B(10) appears duplicative of s 6(4), which provides that: […] a person is not a reportable offender merely because the person as a child committed a single offence (including an offence under the laws of a foreign jurisdiction) that falls within a class of offences that are prescribed to be offences for the purposes of this subsection. 18 It is relevant to note that s 6(4) was not amended by, and pre- dated, the recent amendments. In my view, s 6(4) appears to be a remnant of the prior 'automatic' reporting framework and now predominantly functions to identify the relevant class of prescribed offences to which s 14B(10) refers. The operative constraint is instead contained within s 14B(10) itself. 19 Those prescribed offences are set out in reg 8 of the Community Protection (Offender Reporting) Regulations 2004 (WA) and include offences relating to the possession, distribution and production of child exploitation material, as well as offences relating to child pornography. 20 I note that s 6(8) expands the meaning of 'single offence' for the purposes of s 6(4). As such, a reference to a single offence in s 6(4) includes a reference to more than one offence of the same kind arising from the same incident. By contrast, s 14B(10) refers only to a 'single offence' with no corresponding 'extension'. It may therefore be necessary in a future case to consider the continuing significance of s 6(4) and its interaction with s 14B(10). However, it is unnecessary to resolve that question in the present case because CMR's offences do not fall within the classes of offences prescribed for the purposes of s 6(4). Does s 14B apply to CMR? 21 As CMR was found guilty of offences to which s 14B applies, and as the limitation in s 14B(10) does not arise, the remaining question is whether the statutory condition in s 14B(3) is satisfied. I therefore turn to consider whether CMR poses the requisite risk for the purposes of that subsection. Whether a juvenile offender reporting order should be made Section 14B(3) test 22 As outlined above, the discretionary power to make a JORO is conferred by s 14B(3). In effect, s 14B(3) establishes a two-stage inquiry. Firstly, the court must determine whether the power is -- 8 of 12 -- [2026] WACC 4 QUAIL P Page 9 enlivened by considering whether the offender poses a risk to the lives or sexual safety of one or more persons, or persons generally. Secondly, if that precondition is satisfied, the court must determine whether a JORO should be made in the exercise of its discretion. 23 Section 14B(5), which is set out above, identifies the matters the court may take into account when conducting the risk assessment and exercising its discretion. Risk assessment 24 In relation to the level of risk that must exist before the court’s discretion is enlivened, s 14B(3) is in the same terms as s 19 of the previous version of the Act. It is notable, that in drafting the provision, Parliament did not include terms such as 'unacceptable', 'significant' or 'substantial' as qualifiers as to the degree of risk. Section 14B(3) can be contrasted in that way with s 7 of the High Risk Serious Offender Act 2020 (WA), which requires that the level of risk be 'unacceptable' before an order can be made. 25 In Commissioner of Police v ABC [2010] WADC 161, Martino DCJ considered the level of risk required under the previous Act and found:4 The word 'risk' in s 19 of the Community Protection (Offender Reporting) Act 2004 is not modified by an adjective, as the word is in s 7 of the Dangerous Sexual Offenders Act 2006 which refers to an 'unacceptable risk'. If a court requires a person to comply with the reporting obligations of the Community Protection (Offender Reporting) Act 2004 that person's liberty could be restricted and their privacy impaired. It is unlikely that the Parliament would have intended that would occur if the risk were insignificant. I conclude that the reference in s 19 to a risk to the lives or sexual safety of a person or persons is a reference to a risk that is more than a fanciful, minimal or merely theoretical risk. 26 With respect, I agree with his Honour, and that is the approach the court should take to assessment of risk under s 14B(3) of the current Act. 27 It follows that if the court determines, in a given case, that there is even a low risk, being more than fanciful, minimal or theoretical, the threshold for the exercise of discretion would be met. 4 Commissioner of Police v ABC [2010] WADC 161 [16]. -- 9 of 12 -- [2026] WACC 4 QUAIL P Page 10 Is there is a requisite risk in CMR's case? Counsel submissions 28 The State submitted that the requisite risk is established, and that the court's discretion to make a JORO is therefore enlivened. In support of that submission, the State relied on what it says is a moderate to significant age disparity, a degree of mild planning in the sexual offending, the pressure placed on the complainant to 'meet up' in relation to the second incident, and that there were two separate incidents in time rather than a single aberrant act. 29 The State submitted further that the psychological pre-sentence report does not conclude that CMR was of no risk of reoffending and that having regard to all of the relevant considerations, the court should conclude that he is a mild risk for the purposes of s 14B. The State submitted the same factors inform the exercise of the discretion and that the court should make a JORO. 30 The offender’s counsel submitted that an order should not be made because CMR does not pose any ongoing risk to the complainant and no risk more generally. This contention was supported by submissions that CMR is in an age-appropriate relationship, had been wholly compliant with his bail, and had not reoffended in the 10 months leading up to sentencing. Further, counsel submitted that if an order is made it will affect CMR's ability to travel and play football. Circumstances of offending 31 The relevant facts of CMR’s offending were that when he was 16 years old, CMR sexually penetrated the complainant, who was 12 years old at the time, on two separate occasions, once in March 2025 and the second time in May 2025. The circumstances were that the two met through social media and the complainant lied to CMR about her age. He believed she was either 13 or 14 years old. The first offence was one of penile vaginal penetration and CMR used a condom. The second offence was one of fellatio. There was other sexual conduct on each of the two occasions, which was an aggravating factor. The complainant was a willing participant in both offences but was under some pressure from CMR in relation to the second offence and he had shamed her into seeing him on that occasion. The report to police came by way of a mandatory report after the complainant told someone at school what had happened. I found there was a power imbalance between CMR and the complainant. -- 10 of 12 -- [2026] WACC 4 QUAIL P Page 11 CRM’s relevant personal circumstances 32 There was considerable mitigation for CMR. He pleaded guilty to the offending and had no prior record or interaction with juvenile justice. CMR grew up with very good values, and his conduct did not represent what he had been taught to do. I found the offending was out of character. CMR lived at home and his parents remained supportive of him. They have taken appropriate steps to ensure he returned to pro- social activities, including football and studies, and intervened in his use of social media. CMR had no substance abuse or mental health issues but an identified need for psychological counselling. He was remorseful but did not have complete insight into his conduct. Psychological pre-sentence report 33 In the psychological report before the court, Ms Sampson said relevantly in relation to risk at [15] - [17]: In determining the treatment needs and priority for treatment, some considerations are noteworthy, specifically whether the behaviour is an aberration in the context of development, or if the behaviour is a marker of emerging pathology that will require significant intervention. Separating out these two domains during adolescent years can be very challenging. As the current offences are of a sexual nature, questions were asked of him to establish if there is emerging pathology, and there are no concerns apparent, and many protective variables present. Adolescence is a time of cognitive, physical, social and emotional variation and risk status can change dramatically, so unlike adults, a score cannot be attributed to risk. Rather, identification of risk factors allows improved risk management and treatment planning. CMR's risk was assessed using the structured professional judgment approach for assessing risk of sexual offending in minors, the Juvenile Sex Offender Assessment Protocol-II (JSOAP-II) and this tool is inclusive of his age group. In the Static Risk Assessment Scale, there are no risk areas of concern. The only moderate concern is possible minor planning of the offence. On the Impulsive/Anti-social Behaviour sub-scale, there are no concerns apparent. In the Dynamic Risk Impulsive behaviour section, the Intervention scale demonstrated there are moderate concerns in relation to his understanding of risk and likely cognitive distortion. On the Community Stability/Adjustment scale there are no concerns identified. 34 The two moderate concerns identified by Ms Sampson should not be understood as having resulted in an overall assessment of moderate risk of similar re-offending. Those two matters do not cause me to conclude that CMR poses a risk to the lives or sexual safety of a person. -- 11 of 12 -- [2026] WACC 4 QUAIL P Page 12 35 Ms Sampson concluded at [19]: The relevant variables in terms of explaining CMR's offending appear to be opportunity, sexual gratification, a belief that the victim was older (albeit still underage), impulsivity, cognitive distortions, poor judgment, immaturity and naivety and a lack of consequential thinking. 36 In my sentencing findings, having regard to all matters, I concluded in relation to CMR that: You're impulsive, you exercised I would say very poor judgment, and you were immature. You believed she was older than she was […] Ms Sampson doesn't identify ultimately any particular risk factors which give me concern, what I mean by that is I don't think we're ever likely to see you before the court again (ts 38). Conclusion 37 The above matters lead me to conclude that CMR poses only a minimal risk to the lives or sexual safety of one or more persons, or persons generally. 38 That level of risk falls short of the threshold contemplated by s 14B(3). It follows that the statutory precondition to the exercise of the discretion to make a JORO has not been enlivened. 39 The State’s application for a JORO is refused. I certify that the preceding paragraph(s) comprise the reasons for decision of the Children's Court of Western Australia. SS Associate to the Judge 10 AUGUST 2026 -- 12 of 12 --