A, C v Commissioner of Police - [2021] SASC 139

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

A, C v COMMISSIONER OF POLICE
[2021] SASC 139
Judgment of the Honourable Justice Stein
3 December 2021
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - REGISTRATION, REPORTING AND LIKE MATTERS
On 18 April 1994, the applicant, then aged 20 years old, pleaded guilty to two counts of unlawful sexual intercourse with two victims, one who was 15 years old and the other who was 16 years old. The applicant was sentenced to three years imprisonment with a non-parole period of 12 months for the offending.
In 2007, the applicant became subject to reporting obligations due to the commencement of the Child Sex Offenders Registration Act 2006 (SA) (“the Act”).
The applicant is eligible to seek an order pursuant to s 37(2) of the Act suspending the applicant’s reporting obligations. The Court may make such order pursuant to s 38(1) if it is satisfied under s 38(2) the offender does not pose a risk to the safety and wellbeing of any child or children, taking into account the matters prescribed in s 38(3) of the Act.
Held: Application granted.
Child Sex Offenders Registration Act 2006 (SA) s 37 and s 38; Summary Procedure Act 1921 (SA) s 99AA, s 15A and Part 2A, referred to.
Briginshaw v Briginshaw (1938) 60 CLR 336; C, M v Commissioner of Police (2014) 121 SASR 106, applied.

A, C v COMMISSIONER OF POLICE
[2021] SASC 139

The applicant seeks an order pursuant to s 37(2) and s 38 of the Child Sex Offenders Registration Act 2006 (SA) (“the Act”) suspending the applicant’s reporting obligations pursuant to the Act.
Background
On 18 April 1994, the applicant pleaded guilty to two counts of unlawful sexual intercourse with two victims, one who was 15 years old and the other who was 16 years old (“offending”). The applicant was sentenced to three years imprisonment with a non-parole period of 12 months for the offending.
The Act came into operation in 2007. The applicant was characterised as a registerable offender for the purposes of the Act and was therefore required to comply with the reporting obligations contained in the Act.
The Supreme Court has power pursuant to s 38(1) of the Act to make an order suspending a registerable offender’s reporting obligations.
On 29 October 2021, the applicant filed an application pursuant to s 37(2) and s 38 of the Act seeking an order suspending the applicant’s reporting obligations pursuant to the Act. The application is supported by an affidavit of the applicant. The affidavit exhibits a number of documents including a detailed report of Mr Luke Broomhall, registered psychologist.
The respondent, the Commissioner of Police, has indicated that the application is not opposed. Counsel confirmed the jurisdictional pre-conditions in s 37(2) to the making of an order are met.
The Act
Sections 37 and 38 of the Act provide as follows:
37—Supreme Court may exempt certain registrable offenders
(1) This Division applies to a registrable offender who is required to continue to comply with the reporting obligations imposed by this Part for the remainder of his or her life.
(2) If—
(a) a period of 15 years has passed since he or she was last sentenced or released from government custody in respect of a registrable offence or a foreign registrable offence, whichever is later; and
(b) he or she did not become the subject of a life-long reporting period under a corresponding law whilst in a foreign jurisdiction before becoming the subject of such a period in South Australia; and
(c) he or she is not on parole in respect of a registrable offence,
the registrable offender may apply to the Supreme Court for an order suspending his or her reporting obligations.
38—Order for suspension
(1) On an application under section 37(2), the Supreme Court may make an order suspending the registrable offender's reporting obligations.
(2) The Court must not make the order unless it is satisfied that the registrable offender does not pose a risk to the safety and well-being of any child or children.
(3) In deciding whether to make the order, the Court must take into account—
(a) the seriousness of the registrable offender's registrable offences and foreign registrable offences; and
(b) the period of time since those offences were committed; and
(c) whether the registrable offender has ever been subject to a restraining order under section 99AA of the Summary Procedure Act 1921; and
(ca) whether the registrable offender has ever been subject to a declaration under Part 2A or an order under section 15A; and
(d) the age of the registrable offender, the age of the victims of those offences and the difference in age between the registrable offender and the victims of those offences, as at the time those offences were committed; and
(e) the registrable offender's present age; and
(f) the registrable offender's total criminal record; and
(g) any other matter the Court considers appropriate.
The power of the Court conferred by s 38(1) is discretionary.[1] The Court must be satisfied the threshold requirements in s 37(2) of the Act are met. The Court must not make the order unless satisfied the registerable offender does not pose a risk to the safety and wellbeing of any child or children and must take into account the matters set out in s 38(3) in determining whether to make the order.[2]
[1] C, M v Commissioner of Police (2014) 121 SASR 106 at [11] per Nicholson J.
[2] Ibid at [11].
In C, M v Commissioner of Police, Nicholson J said:[3]
A court will not be obliged to make the order in the event that it is satisfied of the requirement in s 38(2); the making of the order will remain discretionary. Nevertheless, whilst lack of satisfaction under s 38(2) is described as a matter of preclusion, a finding of satisfaction ordinarily will be highly favourable to the exercise of the discretion. Findings with respect to the matters to be taken into account under s 38(3) will be relevant not just to the making of any finding pursuant to s 38(2) but to the exercise of the discretion generally. The making of an order involves a three-stage process: have the threshold matters (s 37(2)) been satisfied; if so, is the court satisfied of the requirement in s 38(2); if so, should the discretion be exercised to make the order sought.
[3] Ibid at [12].
The enquiry under s 38(2) is directed to future risks which will be assessed by reference to existing knowledge.[4] The burden of proof on the applicant is on the balance of probabilities.[5] Nevertheless a Briginshaw v Briginshaw[6] approach should be adopted.[7]
[4] Ibid at [17].
[5] Ibid at [17]-[19].
[6] (1938) 60 CLR 336.
[7] C, M v Commissioner of Police (2014) 121 SASR 106 at [20] per Nicholson J.
Basis of Application
The basis on which the application is sought is as follows:
The offending was two counts of unlawful sexual intercourse which occurred on a single night in July 1993 when the applicant was 20 years old.
The applicant had no similar convictions at the time.
29 years has passed since the offending and the applicant has no similar convictions since that date.
Mr Luke Broomhall, psychologist, has provided a report which contains opinions including that there were no indications of paedophilic sexual interests, the applicant’s risk of future sexualised offending falls into the very low range, which is the lowest range possible, and there are no recommendations to be made relating to further decreasing the forensic risk profile.
The applicant does not pose a risk to the safety and wellbeing of any child or children.
The applicant has a partner and numerous adult children and grandchildren.
Background Facts
The applicant committed the offending in 1993. At the time of the offending he was 20 years old. The circumstances of the offending were that the applicant and victims were known to each other. On the occasion in question, the victims visited the applicant’s home and arrived intoxicated. The applicant had intercourse with both victims. He did not know the age of one victim and knew the other was close to 17 years old.
The sentencing Judge noted that the applicant took advantage of the victims, but that the applicant was contrite, regretted his actions and pleaded guilty so the victims did not have to give evidence.
A co-offender was discharged without conviction.
Approximately 29 years has passed since the date of the offence in July 1993. The applicant has not re-offended and does not have any record, either prior to or since the offending, of being charged with any other sexual offence.
Prior to the offending, the applicant had been in a relationship and he has two children from that relationship. The applicant also has two children with his ex-wife, with whom he had a relationship for about 17 years. The applicant has six grandchildren. He is close to his children and grandchildren. He deposed to his children and grandchildren visiting and staying with him and his current partner frequently.
The applicant completed an apprenticeship and worked as a locksmith for a period of time. Following incarceration and upon his release, the applicant could not work as a locksmith as he needed a security clearance. After working as a courier and then in real estate, he bought a café and then a restaurant and worked successfully in those businesses before buying and running a farm. The applicant’s affidavit deposes to the applicant having set up a business including assisting with sales of products overseas. The applicant’s business interests are said to necessitate him travelling. He deposed to travelling to Hong Kong in 2019 for which travel he obtained all the necessary approvals in advance. The applicant deposed to being subject to lengthy questioning at both Hong Kong airport and upon return to Australia in Sydney as a consequence of his registration. He seeks removal from his reporting obligations to enable him to travel and pursue his business interests overseas.
Consideration
The first of the three stage process referred to by Nicholson J in C, M v Commissioner of Police[8] is consideration of the threshold requirements in s 37(2) of the Act. I am satisfied that the period of time since the offending is nearly 29 years, that the applicant is not on parole in respect of a registrable offence and that he is not the subject of lifelong reporting under a corresponding law while in a foreign jurisdiction before becoming the subject of such a period in South Australia. I am therefore satisfied that the applicant is entitled to make the application pursuant to s 37(2) of the Act.
[8] (2014) 121 SASR 106 at [12].
The second stage requires consideration of the matters set out in s 38(3) of the Act. I set out below my consideration of those matters.
The offences were serious. However, the applicant pleaded guilty and did not require the victims to give evidence. He was found to be contrite by the sentencing judge. The applicant submitted that the offences were committed by him when he was young, far less mature and constituted an error of judgment by an immature person. Importantly, the applicant has not committed any further offences of a sexual nature. Mr Broomhall concluded from his assessment of the applicant that, in his opinion, it was most likely that the offending was an example of a young man in a state of intoxication taking opportunistic advantage in a sexual way with the victims. Mr Broomhall said there were no indications of paedophilic sexual interests, low empathy or victim blaming characteristics. Mr Broomhall stated the applicant presented as being cognisant of the wrongfulness of his behaviours and sympathetic to the impact on the victims. There were no indications the applicant attempted to externalise responsibility for the actions nor blame the victims.
The period of time since the offending is substantial. During that time, the applicant has not committed any further offences which would give rise to concerns about potential risk to the safety and wellbeing of children.
The applicant deposes to the fact he has never been subject to a restraining order under s 99AA of the Summary Procedure Act 1921 (SA) nor a declaration under Part 2A nor an order under s 15A (relevant to ss 38(3)(c) and (ca) of the Act).
The applicant was relatively young at the time of the offending. The offending related to two victims, one almost 16 years old and the other almost 17 years. The age difference at the time of offending was thus 3 years and 4 years respectively. The relative ages were taken into account by the sentencing judge in imposing sentence.
The applicant is now 49 years old.
The applicant has exhibited to his affidavit a national police certificate disclosing his offending history. His offending history does not contain any other offences of a similar kind in respect of the offending. His offender history indicates two offences of failing to comply with reporting obligations. His affidavit explains the failures. The first case was said to be a failure to understand the requirements of the Act. The second case was said to be an oversight. Once the applicant realised the oversight, he deposed to having phoned the police and confessed to his error. On each occasion the applicant received a fine.
The applicant’s affidavit contains explanations for the remaining offences, being driving with excess blood alcohol, producing cannabis (for which he received a fine), driving unregistered (for which he received a fine) and assuming a position of authority without approval, which related to working late at a restaurant when the relevant licence was in the name of another family member (for which offending he received a fine).
The material before me does not give rise to a need for me to consider any other matters which may militate against making an order (s 38(3)(g)).
I must not make an order unless I am satisfied the applicant does not pose a risk to the safety or wellbeing to any child or children (s 38(2)). I have consequently given close consideration to the detailed and comprehensive report of Mr Broomhall in considering this issue. I summarise some of Mr Broomhall’s conclusions below.
Mr Broomhall concludes there is no evidence from his assessment of the applicant of any deviant sexual interests, promiscuity, domestic violence or low empathy towards the applicant’s partners in general.
Mr Broomhall concludes he could not find any indications that the applicant met the diagnostic criteria for any diagnosable psychological or psychiatric conditions. He said there were no indications of sexual abuse, unwanted sexual contact or problematic psychosexual development in the applicant. He could not find any indications that the applicant presented with any symptoms, past or present, relating to sexual paraphilias including there were no indications of paedophilic sexual interests.
Mr Broomhall used a number of different testing methodologies to assess the applicant’s level of risk for sexual re-offending. According to one model, the applicant’s risk rating was in the low to moderate range. Based on the scoring criteria in another model, the applicant’s risk of sexual recidivism was found to be in the low range. Mr Broomhall’s report notes that international best practice literature has demonstrated that the longer an individual remains free of arrest or conviction in the community, the lower the chances of subsequent offending. He notes that, in the majority of cases, research indicates recidivism occurs within 3 years of previous arrest and almost always within 5 years of previous arrest.
Mr Broomhall notes that it is not scientifically possible to accurately predict whether or not an individual will actually reoffend. Consequently, he indicates that the best that can be offered is an estimate based on professional opinion and research.
On the basis of current assessment methodology, Mr Broomhall concludes that the applicant’s risk of future sexualised offending is in the very low range, the lowest risk range possible. In his opinion there are no recommendations to be made relating to further decreasing the applicant’s forensic risk profile nor recommendations related to improving his mental health or psychological presentation.
Conclusion
The third stage of the three stage process is for me to determine whether to exercise the discretion. I have determined to do so. I accept the opinion of Mr Broomhall. Given the matters taken into account by Mr Broomhall and considering the applicant’s age, the length of time since the offending, the lack of any further sexual offending and the matters referred to by the sentencing judge in relation to the offending, I am satisfied that the applicant does not pose a risk to the safety and wellbeing of any child or children. I have reached that conclusion on the balance of probabilities, acting with caution.[9]
[9] Briginshaw v Briginshaw (1938) 60 CLR 336.
I therefore order the suspension of the applicant’s reporting obligations pursuant to the Act.