A Canberra man who masturbated in his backyard in view of neighbours has won an appeal to have his name removed from the sex offenders register.
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The man, who has mental health issues, has 17 previous convictions for offences involving indecent exposure or similar misconduct, mostly in public places.
In April, in the ACT Magistrates Court, he was sentenced to five months' jail for four offences of committing an act of indecency.
The magistrate also ordered his name be placed on the child sex offender register.
The offender appealed the sentence and registration to the ACT Supreme Court, arguing the jail term had been excessive as the magistrate did not take into account his mental health issues.
The court heard he suffered from a complex bipolar affective disorder and possible cognitive impairment.
He had limited insight into his mental health issues, lived an isolated life in squalid conditions, required assistance with personal hygiene and domestic chores, and would be unlikely to voluntarily address his lifestyle problems, but usually responded to legally enforceable directions.
Fresh medical evidence provided for the appeal argued the magistrate should not have dismissed submissions that the man's mental condition could have played some part in the offending conduct and lessened his moral culpability.
A medical expert speculated that the man's offending had been caused by a tendency to engage in exhibitionistic behaviour.
But Chief Justice Helen Murrell dismissed the ground, saying the medical evidence did not demonstrate a direct link between the offender's mental illness and the offending behaviour which would have lessened his moral culpability.
The judge also said there had been no suggestion that imprisonment would be a burden on the offender.
"Any factual error by the magistrate was insubstantial and could not have had a significant impact on the sentences," Chief Justice Murrell said.
"Far from imposing a sentence that was outside the available range because it was too heavy, the magistrate imposed a lenient sentence."
An offender is automatically registered when committing certain crimes against children, but for acts of indecency and other offences the decision is left to the discretion of the court.
The court can make the order only if it is first satisfied that the offender poses a risk to the safety of one or more people, or of the community.
Secondly, the court must then decide whether the risk outweighs the serious obligations a registration order imposes on the offender.
Those on the register are subject to reporting conditions and are banned from certain jobs and other activities.
Chief Justice Murrell found the magistrate had conducted the first step correctly, but erred by failing to consider the second.
The judge was satisfied that the offender – based on his criminal history – did pose risk to the future safety of one or more people in the community.
But Chief Justice Murrell said the risk did not usually involve physical contact, and related to indecent exposure directed towards adult women
"In a psychological sense, the appellant does pose a risk to the sexual safety of both adults and children.
"To the extent that there may also be physical risk, that risk is relatively remote.
"The psychological risk to children arises not because it is likely that the appellant will consciously target them with his behaviour, but because he may misconduct himself in or within view of a public place where children are present."
Chief Justice Murrell found the registration would not serve a useful purpose as he was unlikely to get a job working with children, and, upon release, would be subject to supervision for a number of years.
"On the other hand, a registration order would detract from [his] privacy and freedom of movement.
"Such an order would be particularly onerous for the appellant. His lifestyle is haphazard, increasing the risk of non-compliance and consequent sanction."
