Attorney-General (SA) v Banbery - [2020] SASC 232

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v BANBERY
[2020] SASC 232
Judgment of The Honourable Justice Bleby
4 December 2020
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
Application by the Attorney-General for South Australia for an extended supervision order pursuant to s7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA).
On 22 March 2018, the respondent pleaded guilty to two counts of possessing child exploitation material and six counts of communicating with the intention of making a child under the age of 17 years amenable to sexual activity, contrary to ss 63A and 63B respectively of the Criminal Law Consolidation Act 1935 (SA).
The respondent accepts that it is appropriate to impose an Extended Supervision Order (ESO), but disputes the duration of the order, the condition relating to the respondent’s residential address, the condition regulating the respondent’s access to the internet and to devices with the ability to connect to the internet, and the condition regulating the respondent’s access to his underage son.
Held, per Bleby J:
1. The respondent is a high risk offender who poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.
2. The application for an extended supervision order is granted for a term of two years, in the terms of the applicant’s proposed order.
3. Proposed condition 2.22 is amended to allow for three hours of unsupervised telephone contact with the respondent’s son per week, totalling no more than one hour’s duration on any given day. The respondent’s Community Corrections Officer may otherwise approve, in writing beforehand, unsupervised contact of any form with the respondent’s son.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 4, 5, 7, 9, 10; Controlled Substances Act 1984 (SA) s 33I(1)(b); Criminal Law Consolidation Act 1935 (SA) ss 63A, 63B; Criminal Law (Sentencing) Act 1988 (SA) ss 23, 24, referred to.
Attorney-General v Grosser [2016] SASC 49; Attorney-General v Kimmins [2016] SASC 176; R v Schuster (2016) 125 SASR 388, considered.

ATTORNEY-GENERAL (SA) v BANBERY
[2020] SASC 232
Criminal Application

BLEBY J: This is an application by the Attorney-General for South Australia for the imposition of an extended supervision order against the respondent, Neal Daniel Banbery, pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (HRO Act).
The applicant seeks an extended supervision order (ESO) for a period of two years, on the basis that the respondent is a high risk offender under the HRO Act who poses an appreciable risk to the safety of the community if not supervised under such an order. The respondent accepts that it is appropriate to make an ESO, but disputes four aspects of the applicant’s proposed order. The areas of dispute are the duration of the ESO, the condition relating to the respondent’s residential address, the condition regulating the respondent’s access to the internet and to devices with the ability to connect to the internet, and the condition regulating the respondent’s access to his underage son.
Factual background
On 16 February 2018, the respondent pleaded guilty to the offence of possessing a controlled drug for supply, contrary to s 33I(1)(b) of the Controlled Substances Act 1984. On 22 March 2018, he pleaded guilty to two counts of possessing child exploitation material depicting children between the ages of 14 and 16 years, and six counts of communicating with the intention of making a child under the age of 17 years amenable to sexual activity, contrary to ss 63A and 63B respectively of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
On 16 July 2018, the District Court of South Australia sentenced the respondent to three years, seven months and eight days’ imprisonment with a non‑parole period of two years, 10 months and 19 days. The respondent’s head sentence expired on 30 August 2020.
The respondent was born in Adelaide in December 1978. During his childhood and adolescence, he displayed behavioural difficulties and attended a number of schools. He left school at the age of 15. He left home at 17 and at 20 he established his own business. After 13 years, that business collapsed.
In 2015, the respondent commenced using methamphetamines. In 2016, for the purposes of sentencing for the index offending, he told a forensic psychologist that he had been experiencing mood swings. He displayed aggression, agitation and suffered depression. He reported a family history of bipolar disorder and violence. He also reported two unsuccessful suicide attempts.
The respondent has been in a relationship with his wife for approximately 22 years. They have a young teenage son. They separated in 2016, although they are still married and his wife remains supportive of him.
The respondent has a limited history of criminal offending. In October 2016, he was sentenced to two weeks’ imprisonment for four counts of failing to comply with a bail agreement relating to bail granted in respect of a charge of possessing a controlled drug. In February 2017, he was sentenced to one day’s imprisonment for disorderly behaviour and resisting police. In May 2017, he was sentenced to four months’ imprisonment, suspended, for two counts of unlawful possession, four counts of breaching bail, possession of a prohibited weapon and resisting police.
The circumstances of the index offending are as follows. On 30 May 2016, police attended at the respondent’s address and located 4.86g of mixed weight material containing methylamphetamine, as well as a set of scales that contained traces of methylamphetamine. The respondent pleaded guilty to possessing a controlled drug for supply on the basis that he intended to use some of the drug himself but also intended to supply some to other people. Police also seized two mobile phones which, upon analysis, revealed a series of conversations on a messaging app called ‘KIK’. These conversations involved sending and receiving sexually explicit material with underage children. The two offences of possessing child exploitation material relate to images received in the course of those conversations, which depicted children performing various sexual acts.
The applicant filed an application for an ESO on 15 May 2020. On 26 August 2020, this Court made an interim supervision order (ISO) pursuant to s 9 of the HRO Act, pending determination of the application for an ESO. The ISO came into force upon the respondent’s release from prison at the expiry of his head sentence on 30 August 2020.
HRO Act
The object of the HRO Act is to provide for the protection of the community from exposure to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders. Section 7 provides that the Attorney-General may make application to this Court for an ESO in respect of a person who is a high risk offender. Such an application must be made within 12 months of the relevant expiry date, defined in s 4(1) to mean ‘the date on which the term, or terms, of imprisonment to which the offender was sentenced expire’.[1] The respondent’s relevant expiry date was 30 August 2020.
[1] Criminal Law (High Risk Offenders) Act 2015 (SA) s 4(1).
The relevant provisions of s 7 provide as follows:
7—Proceedings
…
(4)     The Supreme Court may, on application under this section, order that the respondent is to be subject to an extended supervision order if satisfied that—
(a)     the respondent is a high risk offender; and
(b) the respondent poses an appreciable risk to the safety of the community if not supervised under the order.
(5)     The paramount consideration of the Supreme Court in determining whether to make an extended supervision order must be the safety of the community.
(6)     The Supreme Court must also take the following matters into consideration in determining whether to make an extended supervision order in respect of the respondent:
(a)      the likelihood of the respondent—
(i)      committing a further serious sexual offence; or
(ii)     committing a further serious offence of violence; or
(iii) committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a serious offence of violence,
(as the case may be) if not supervised under the order;
(b) the reports of any prescribed health professional (as directed under subsection (3)) furnished to the Court;
(c) any report prepared by the Parole Board under section 64(5) of the Correctional Services Act 1982;
(d) any report required by the Court under section 20 (including the results of any statistical or other assessment furnished to the Court as to the likelihood of persons with histories and characteristics similar to those of the respondent committing a further relevant offence);
(e) any relevant evidence or representations that the respondent may desire to put to the Court;
(f) any treatment or rehabilitation program in which the respondent has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation;
(g) in the case of a respondent released on parole—the extent to which he or she has complied with the conditions of his or her release on parole;
(h) in the case of a respondent subject to an existing extended supervision order—the extent to which he or she has complied with the terms of the order;
(i) in the case of a respondent who is a registrable offender (within the meaning of the Child Sex Offenders Registration Act 2006)—the extent to which he or she has complied with any obligations under that Act;
(j) the circumstances and seriousness of any offence in respect of which the respondent has been found guilty according to his or her criminal history, and any pattern of offending behaviour disclosed by that history;
(k)     any remarks made by the sentencing court in passing sentence;
(l)      any other matter that the Court thinks relevant.
‘High risk offender’ is defined in s 5 to mean, inter alia, ‘a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence’.[2] An offence under s 63B of the CLCA falls within the definition of ‘serious sexual offence’ as defined in s 4(1) of the HRO Act. The respondent is a high risk offender within the meaning of the Act.
[2] Criminal Law (High Risk Offenders) Act 2015 (SA) s 5(a).
An ESO must include a number of mandatory conditions pursuant to s 10(1):
10—Supervision orders—terms and conditions
(1)     The following conditions apply in relation to an extended supervision order:
(a) a condition that the person subject to the order not commit any offence;
(b) a condition that the person subject to the order is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm;
(c) a condition prohibiting the person subject to the order from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;
(d)     a condition that the person subject to the order—
(i) be under the supervision of a community corrections officer; and
(ii) obey the reasonable directions of the community corrections officer; and
(iii) submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require;
(e)      any other condition that the Court thinks fit and specifies in the order;
(f)      any condition imposed by the Parole Board under section 11.
The respondent’s position
The respondent resists the following conditions of the applicant’s proposed ESO:
1.the respondent is to be subject to an extended supervision order for a period of two (2) years from the date of this order;
2.6.the respondent will reside at an address that has been approved by the Community Corrections Officer, and will not change his residence without the prior written permission of the Community Corrections Officer;
2.8.the respondent will not use or possess any tablet, computer, mobile telephone or photographic equipment or gaming console or any other electronic device capable of taking or storing photographic images, or with ability connect to the internet unless permission is given to use or possess that item by his Community Corrections Officer; and
2.22:the respondent will not contact, attempt to contact or associate in any way, whether directly or indirectly, any person under the age of eighteen (18) years, unless his Community Corrections Officer is present, or a person nominated by his Community Corrections Officer is present.
The respondent contends that the order should be of a period of 18 months. Second, he contends that he should be permitted by the ESO to reside at 8 Pilot Court, Encounter Bay, SA 5211 with his wife and son. Third, he seeks to have proposed condition 2.8 deleted entirely. Fourth, he seeks the amendment of proposed condition 2.22 so as to allow for unsupervised and unrestricted access to his son.
The witnesses
On 9 July 2020, Dr Raeside, a qualified forensic psychiatrist, provided a detailed psychiatric report pursuant to s 7(3) of the HRO Act. On 10 September 2020, Dr Raeside provided an addendum psychiatric report. He gave oral evidence at the hearing of the application on 5 November 2020.
The Attorney-General further called Ms Casey Austin, who is the high risk offender coordinator within the Department of Correctional Services (DCS).
The respondent, Mr Banbery, gave evidence. Mrs Jane Banbery also gave evidence in support of the respondent’s case for the alterations to the proposed ESO.
I found the evidence of Dr Raeside to be particularly helpful. Dr Raeside accepted, in his report of 9 July 2020, that Mr Banbery has a Bipolar Disorder. He further opined that ‘he also has an underlying Antisocial Personality Disorder that is likely to lead to unstable mood and maladaptive ways of dealing with stress’. Dr Raeside considered that Mr Banbery’s Antisocial Personality Disorder has been compounded by longstanding drug and alcohol abuse, especially amphetamines, which would have affected adversely the stability of his mood, behaviour and judgment. Dr Raeside’s reports and oral evidence were of particular assistance in considering the issues remaining on this application. I accept his evidence.
Ms Austin has been in the role of high risk offender coordinator, which is a planning role, for four months. She described her role as being to keep track of anyone who has been put forward by the department for an extended supervision order or interim supervision order. That role extends to considering conditions that might be suitable and delving into the detail of the needs of the person in question. In the present matter, she had reviewed Mr Banbery’s case notes and brought her own professional assessment to the merits of the conditions sought by Mr Banbery. She gave a clear explanation for her conclusions, as well as for the more general positions adopted by DCS as a matter of policy. I accept her explanations for the positions adopted by DCS. Those explanations are not, of course, determinative of my consideration of the matters in issue.
I found Mr Banbery to be a straightforward witness. He accepted that certain restrictions were appropriate. I was left with the impression of someone who genuinely wished to rebuild his life and take responsibility for what was required of him to achieve this. To this end he expressed a degree of optimism about his ability to do this which, while commendable, needs to be viewed through a more objective and cautious lens. Mr Banbery was embarrassed about his offending and found it difficult to speak frankly about it. He accepted that in the past he had found it difficult to acknowledge the extent of the wrongfulness of what he had done. I find that he is still hampered by that difficulty, but that he recognises this as a failing.
I found Jane Banbery to be an impressive witness. She gave a frank account of the breakdown of the relationship and her actions to protect her son when she realised that Mr Banbery had become addicted to methylamphetamine. She gave a clear account of her current assessment of Mr Banbery and, in support of the conditions that Mr Banbery seeks, the role that would be required of her. She understood the nature of Mr Banbery’s offending. She has clearly considered carefully the course she thinks to be in the best interests of her family and, in particular, her son. To that end, she expressed a willingness for Mr Banbery to reside with them at Encounter Bay. I find her position with respect to the proposed conditions to be considered and expressed in good faith.
The contested conditions
Duration
Dr Raeside assessed Mr Banbery as having a moderately high likelihood of committing a further serious sexual offence. That opinion was based on his assessment of Mr Banbery prior to his release. A key contributor to that conclusion was Mr Banbery’s failure to complete the sexual behaviour clinic program while in custody, although he did complete most of it. Dr Raeside attributed this failure as most likely being due to his personality disorder. The difficulties during this program included difficulty in identifying factors that contributed to his offending, including victim blaming, and other cognitive distortions. His behaviour within the group was problematic.
Mr Banbery has now commenced the program at Owenia House, administered by the Forensic Mental Health Service. It appears that he commenced this on 28 October 2020. Dr Raeside recommended strongly that he complete this program. It is a community-based program for sexual offenders who have committed less serious sexual offences. It is primarily conducted as a group program, although individual therapy is also available. Dr Raeside said that while Mr Banbery will never be free of risk, the likelihood is that at the completion of the program, his risk would be low.
Mr Banbery’s evidence was that he had organised his participation in the Owenia House program, together with his case management coordinator. He agreed that it was appropriate for him to participate in the program. He also expressed no opposition to Dr Raeside’s recommendation that following the conclusion of the program, a participant should be given around six months to be assessed, to see if they can implement their gains from the program and to assess any risk they might still pose.
I did not receive clear evidence of the duration of the program. Dr Raeside’s understanding was that the program normally takes 14 to 18 months from commencement to completion. That understanding was based on his consultation with the group leader who is currently responsible for the program. Counsel for Mr Banbery put to Dr Raeside that if the program took only 15 months, a supervision order of 21 months would be sufficient. Dr Raeside accepted this.
The evidence does not go so far as to identify how long the program will take. The best evidence I have is of a range, which is unsurprising given what are likely to be differing needs of different participants. Neither can I prognosticate about the future success of Mr Banbery’s participation. I accept that he has commenced the program in good faith. He must be given every chance to succeed. That requires building in a sufficient duration of the ESO to maximise that prospect, allowing for potential difficulties along the way. While I do not underestimate the importance to Mr Banbery of the difference of three months’ duration of the order, I have no difficulty in concluding that a duration of two years is in the best interests of both the community and Mr Banbery.
Residential address

Mr Banbery is currently resident in Hectorville, at the home of his uncle. This address is relatively convenient for his participation in the Owenia House program and for his weekly contact with his current Community Corrections Officer. Proposed condition 2.6 provides that he will reside at an address approved by his Community Corrections Officer.
Mr Banbery seeks a condition that he reside at his family’s address at Encounter Bay. Mrs Banbery supports this. The difference, therefore, is between whether this Court directs that this be his residence immediately, or whether the question of his being able to live at Encounter Bay is left as a matter for the Community Corrections Officer.
Ms Austin gave evidence that her view, and that of DCS, was that the Encounter Bay address was not presently suitable. She had regard to the presence of Mr Banbery’s son, the prospect of other children visiting the home and the fact that Encounter Bay was a beach and holiday community.
Ms Austin also had regard to the fact that Mr Banbery and his wife were not in a relationship during the period leading up to his time in custody. To this end, one consideration was the potential for relationship stresses that can arise when a person exits custody and resumes living in the family home. She noted concerns that had been raised on his termination from the sexual behaviour clinic program with respect to unaddressed risk factors. These were, in particular, his capacity for relationship stability, hostility to women, his use of sex as a coping mechanism and negative emotionality. She said:[3]
So all those things raised concerns in terms of with Mr Banbery already leaving custody, subject to an order, subject to multiple conditions which may be difficult to initially come to terms with, are we putting him in an additionally stressful environment by approving him to return to reside with his wife and his child who he wasn’t residing with at the time in the lead-up to him going into custody, initially.
[3] T 42.
Finally, Ms Austin expressed concerns about the logistics of Mr Banbery living in Encounter Bay, in particular with respect to his need to travel to Owenia House and to report to the Noarlunga Community Correctional Centre to see his Community Corrections Officer in person. There was potential for other logistical issues with respect to psychological treatment and alcohol and drug counselling. Mr Banbery does not yet have his driver’s licence back.
Ms Austin did explain that as Mr Banbery progressed through the Owenia House program and other counselling, his assessed risks may lessen such that they would review the suitability of the Encounter Bay address.
I do not place a great deal of weight on the identified logistical issues alone, nor on the fact that Encounter Bay is a beach and holiday destination. Neither do I give much weight to the prospect of the Banberys’ son having friends at the house. In the absence of other potential underlying stressors on the relationships, these things could be managed. Mrs Banbery gave clear and considered evidence about her willingness to drive Mr Banbery to his appointments and the arrangements they had contemplated so that his appointments could be managed with an overnight stay in Hectorville each week. Similarly, I have no doubt that Mrs Banbery would be able to manage the household visitors, again subject to the stability of the relationship.
I am more concerned about the potential for difficulties arising out of Mr Banbery’s currently unaddressed risk factors. As I have identified above, I am confident of the good faith of both Mr and Mrs Banbery’s intentions and determination. However, these must be placed in the context of the unaddressed risk factors, which have the potential to be exacerbated by the need for Mr Banbery to rely extensively on Mrs Banbery for logistical support, at least in the next few months. I accept the evidence of Ms Austin to the effect that permitting Mr Banbery to live with his wife and son, in the circumstances of these unaddressed risk factors remaining, has the potential to create an unacceptably stressful environment.
This issue cannot be considered in complete isolation from the question of Mr Banbery having access to his son. Obviously enough, for him to live at the Encounter Bay address would necessarily contemplate him having unrestricted access to his son. As things stand, Mrs Banbery has not at present been approved as a nominated person to supervise contact with the son. Ms Austin gave a number of reasons for this. She explained that DCS was cautious in approving a direct family member or spouse, as it can be difficult for such a person to be impartial or objective when supervising contact with the child. Nevertheless, DCS did consider Mrs Banbery. The case note of a telephone consultation on 2 September 2020 reported some hostility on Mrs Banbery’s part and that she had minimised Mr Banbery’s offending.
Ms Austin said that close family members were sometimes approved after an extensive interview process, when there was no other suitable person, and where the family member made no suggestion of minimising the offending behaviour and demonstrated a good understanding of the risk factors. The case notes in the present matter do not demonstrate such a process having been undertaken. The matters recorded appear to have caused DCS to not approve Mrs Banbery without undertaking such a process.
I discuss the topic of Mr Banbery’s access to his son further, below. For present purposes, it is relevant to note Ms Austin’s evidence with respect to any assessment of whether Mr Banbery posed a risk to his son (noting that the index offending was against girls via social media):[4]
I guess from a DCS perspective the protection of children is paramount for us, so in terms of determining whether someone should or should not be allowed unsupervised access with their child in the circumstances, DCS’s position would remain that that wouldn’t be suitable until he has completed a program.
[4] T 57.
This position, expressed in blanket form, is surprising. It would seem quite justified with respect to children as a general proposition. I am concerned, however, that it reflects a failure to interrogate the nature of Mr Banbery’s relationship with his son at all. While Mr Banbery’s unaddressed risk factors can be reasonably seen as posing potential stressors to an immediately renewed domestic living arrangement between the three members of the family, there is no suggestion that Mr Banbery poses a direct predatory risk to his son. Indeed, Ms Austin was unable to comment on whether he did.[5] Dr Raeside expressed the opinion that Mr Banbery did not pose a risk to his son.
[5] T 45.
Counsel for Mr Banbery made the salient point that this attitude by DCS meant that in reality, Mr Banbery would not be allowed home to Encounter Bay until after he had completed the Owenia House program, as to live there would necessarily entail unsupervised access to his son. I appreciate the force of that submission. It highlights that notwithstanding Ms Austin’s evidence that DCS would be open to reviewing the address at some point during the program, the reality of its undiscriminating approach to a risk of reoffending against children would prevent that from occurring. That is notwithstanding the existing professional assessment that Mr Banbery poses no risk to his son.
This attitude is unfortunate. It does not engage with the circumstances of this case. Moreover, Dr Raeside gave evidence that if Mr Banbery were able to have a stable domestic situation at home, the maintenance of a positive relationship in that situation would help him with his mental health and general stability. Such a relationship would provide a strong motivating factor for him ‘to do the right thing’.[6]
[6] T 26.
Dr Raeside’s opinion on this topic was premised on the existence of a stable relationship. I accept the Attorney-General’s submission that the possibility of Mr Banbery being permitted to live at Encounter Bay must be preceded by a period of time to allow Mr and Mrs Banbery to re-establish their relationship, during which time Mr Banbery is able to focus on his treatment. Mr Banbery’s unaddressed risk factors require this course. Consequently, I am not prepared to make it a condition of the order that he reside at the Encounter Bay address.
I reach this conclusion with some concern about the approach of DCS, in that it would likely not approve any unsupervised contact with Mr Banbery’s son until after he had completed the Owenia House program. That approach does not engage with the actual, identified risks. As I have indicated, I accept Mr Banbery’s submission that such an approach would call into question the genuineness of any prospect that the Encounter Bay address could be revisited as a possible residence after a period of time but before the completion of the program.
That concern does not, however, provide a satisfactory reason to allow Mr Banbery to reside at Encounter Bay immediately. I do accept that a move to Encounter Bay, in the event of satisfactory progression of the family relationships, could have a pro-social influence on Mr Banbery. It would be most unfortunate if this possibility were effectively destroyed by an unconsidered refusal to allow Mr Banbery unsupervised access to his son until after completing the Owenia House program.
Access to Mr Banbery’s son
This issue arises in the context of the wording of proposed condition 2.22, set out above. Mr Banbery seeks to carve out contact with his son from the reach of the order. He relies on Dr Raeside’s evidence that he poses no risk to his son and the pro-social benefits of having contact. He complains that it was some two months before any contact was allowed at all following his release from prison, although supervised contact, both by phone and in person, has now been established and appears to be occurring on a regular basis. Ms Squibb, Mr Banbery’s mother-in-law, is approved to supervise that contact.
This issue was presented as an ‘all or nothing’ question of contact, in that Mr Banbery seeks unrestricted access to his son, while the position of DCS through the evidence of Ms Austin, at least, was that all access should be supervised, and that Mrs Banbery was not an appropriate person. The Attorney‑General did, with respect, engage constructively with a suggestion that I raised at one stage in the course of submissions, about the possibility of unsupervised telephone contact.
It is, of course, appropriate to be prudent with respect to conditions relating to any contact with children given the nature of Mr Banbery’s offending. With respect to the possibility of contact with the son, the precise prohibitory condition must still be informed by the question of appreciable risk within the meaning of the Act. As Stanley J said in Attorney-General v Grosser:[7]
I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible.[8] Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree. The extent of the appreciable risk is informed by the consideration that in determining whether to make an extended supervision order the safety of the community is paramount. I construe that requirement to mean that where a court considers that the question of whether to make an order is finely balanced, the protection of the community would favour making the order rather than declining to do so.
[Footnote in original]
[7] [2016] SASC 49 at [29]; see also Attorney-General v Kimmins [2016] SASC 176 at [36].
[8] Concise Oxford Dictionary.
In Attorney-General v Kimmins,[9] Stanley J considered further the test, in light of the observations by the Full Court in R v Schuster[10] (Schuster) as to the concept of the paramountcy of the safety of the community, arising in Schuster in the context of the then sections 23 and 24 of the Criminal Law (Sentencing) Act 1988 (SA). His Honour said of the HRO Act:[11]
The Act requires the Court to interfere with the liberty of the subject by making an extended supervision order only if it is satisfied that the respondent is a high risk offender and an order is necessary to ensure the respondent does not pose an appreciable risk to the safety of the community. The discretion to be exercised pursuant to s 7 of the Act, like the discretion conferred pursuant to s 24 of the Sentencing Act, demands a normative judgment which is quite different from traditional judicial discretions. The Court has been entrusted with a mandate to ensure public security by interfering with the right to liberty of a person who is a high risk offender and poses an appreciable risk to the safety of the community if not supervised. The discretion is to be exercised having regard to both the interests of the community and the interests of the respondent, but by according the consideration of public safety paramountcy.[12]
[9] [2016] SASC 176.
[10] (2016) 125 SASR 388 at 405-406.
[11] Attorney-General v Kimmins [2016] SASC 176 at [38].
[12] R v Schuster (2016) 125 SASR 388 at 406.
In the present case, I accept that there is an appreciable risk to the safety of the community should Mr Banbery have unrestricted access to his son. To be clear, I do not consider that there is an appreciable risk to his son in terms of risk of Mr Banbery offending against his son. Rather, as I have already observed, the evidence supports the need for Mr Banbery to develop and stabilise his family relationships. His unaddressed risk factors have the capacity to put unacceptable stressors on the family in the short term, at least. Completely unrestricted access to his son would carry, in my view, risk factors similar to those that would be present in allowing Mr Banbery to reside at the Encounter Bay address forthwith.
Having said that, I also accept the evidence that having contact with his son is generally a pro-social factor. The relationship must be allowed to develop with a degree of dignity and autonomy for both Mr Banbery and his son.
Mr Banbery will, for the time being, remain resident at Hectorville. His son is resident at Encounter Bay. Face to face contact requires organisation in any event. In all of the circumstances, I think that the overarching risk factors associated with the Banberys resuming their relationship warrant face to face contact remaining supervised for the time being. I express the hope that in the event that Mr Banbery progresses in the Owenia House program and the family relationship stabilises, DCS would revisit the possibility of Mrs Banbery supervising contact with their son and, potentially, unsupervised face to face contact.
I take a different view of telephone contact. In circumstances where the conditions on residence and supervision of face to face contact will remain, I consider that unsupervised telephone contact has the potential to be a pro-social factor, in that a moderate amount of such contact may assist in the development of the otherwise supervised relationship. I would not, on reflection, allow that to be unlimited. The potential pressures on Mrs Banbery’s responsibility for her domestic situation with her son must be taken into account in supporting the stabilising of the family relationships. I would allow three hours of unsupervised telephone contact between Mr Banbery and his son per week, to occur in calls amounting to contact of no more than one hour in total on any given day. Any further telephone contact can be supervised, presently by Ms Squibb.
Internet access
The applicant’s proposed condition 2.8 prohibits all internet access unless approved by the Community Corrections Officer. The respondent seeks that condition to be not included. There was some confusion in the course of Mr Banbery’s evidence as to the extent of his opposition to the prohibition, as he appeared to accept that some limits were appropriate.
Further, the proposed conditions provide for DCS to inspect and review any device in Mr Banbery’s possession, including any internet-enabled device that the Community Corrections Officer permits. These conditions are uncontested.
Mr Banbery has, to date, been given no permission to have internet access other than by attending in person at, for example, Centrelink and using the restricted internet-enabled computers for Centrelink purposes there.
Ms Austin’s evidence was that Community Corrections Officers give access under ‘controlled circumstances’:[13]
An example of that would be needing to access Centrelink. The majority of that is online these days. So the way we would manage that would be to rather than have the person access it on their mobile phone which wold be an issue depending on the condition we would have them go to the Centrelink office and use the computers that are freely available there. Another example would be with the job network provider where they may require them to apply for jobs that might be online the job network provider would have computers generally available at their premises that can be for that purpose. So the computers there in terms of say Centrelink or a job network provider would be restricted in their ability to access other parts of the internet which removes out level of concern in relation to that internet access.
[13] T 63.
While Mr Banbery’s evidence was a little vague, the essence of it was that Centrelink has discouraged him from attending in person to access the computers on account of COVID-19 risks and restrictions.
Dr Raeside gave a helpful explanation of the competing priorities. When asked the rather blunt question of whether a blanket ban on internet use would be helpful or detrimental to Mr Banbery’s rehabilitation, he was reluctant to identify precisely what access he thought Mr Banbery should and should not have. He explained that Mr Banbery would need:[14]
to start slow first in terms of what he is able to access, whether that means nothing, I think that’s probably, could be extreme, but my understanding is that the ESO allows for flexibility in that to some degree. But certainly I would start with the things that are necessary for his day to day functioning and then moving to other areas.
[14] T 28.
He identified that even once the Owenia House program had commenced, internet access would need to be monitored by community corrections. Internet banking, for example, would be an appropriate facility for Mr Banbery to use. Dr Raeside’s view was that as the program progressed, there should be some revisiting of the level of restrictions.[15] He observed that some level of internet interaction was required as a life skill, and indeed that social media could have positive benefits in terms of pro-social activities. He emphasised, however, that social media access for someone with Mr Banbery’s offending history would, at present, be ‘fraught with danger’.[16]
[15] T 29.
[16] T 30.
The essence of Dr Raeside’s opinion was that Mr Banbery needs to be given gradated access to the internet as he progresses through the Owenia House program and other counselling. Dr Raeside further accepted the efficacy of proposed conditions 2.10 and 2.11, which effectively allow DCS to examine any device at any time for prohibited internet use or image storage, etc. He accepted, however, that DCS might not always be in a position to search devices easily or readily to check past conduct. I infer from this evidence that Dr Raeside continued to see value in a prohibitory condition, albeit one that was capable of being relaxed over time as Mr Banbery progressed through the program.
I accept Dr Raeside’s evidence as to the desirability of a structured reintroduction of internet use. I also accept that that reintroduction should be supervised by DCS. I have given some thought to whether it would be appropriate to craft a condition for some limited, unsupervised use, which can then be monitored by application of the accompanying conditions. Not without hesitation, I have decided against such a course. I accept that a considered reintroduction of internet access may have benefits for Mr Banbery and the community more generally, but in the circumstances of his unaddressed risk factors, I take the view that DCS is the appropriate body to supervise that.

I accept that there may be some retardation of this process by the position as explained by Ms Austin, that for the time being, they would require him to use the computers at the relevant service premises. I express the hope that DCS would contemplate a more imaginative, stepped regime as Mr Banbery progresses. Ultimately, I do not think that this Court is in a superior position to craft a regime of access at this early stage.
I will therefore make condition 2.8 as sought by the Attorney-General.
Conclusion
On the Attorney-General’s application, I am satisfied that the respondent is a high risk offender and that he poses an appreciable risk to the safety of the community if not supervised under the order. I grant the application for an extended supervision order. With respect to the contested provisions of the proposed order:
·as to proposed condition 1, the order will be for a duration of two years;
·as to proposed condition 2.6, the condition will be that the respondent will reside at an address that has been approved by the Community Corrections Officer, and will not change his residence without the prior written permission of the Community Corrections Officer;
·as to proposed condition 2.8, the condition will be that the respondent will not use or possess any tablet, computer, mobile telephone or photographic equipment or gaming console or any other electronic device capable of taking or storing photographic images, or with ability connect to the internet unless permission is given to use or possess that item by his Community Corrections Officer; and
·as to proposed condition 2.22, the condition will be that the respondent will not contact, attempt to contact or associate in any way, whether directly or indirectly, any person under the age of eighteen (18) years, unless his Community Corrections Officer is present, or a person nominated by his Community Corrections Officer is present. His Community Corrections Officer may otherwise approve, in writing beforehand, unsupervised contact of any form with the respondent’s son, for example, a single instance or a defined, ongoing form of contact. However, the respondent is in any event permitted to have three hours of unsupervised telephone contact per week with his son. That contact is to be by way of a telephone call or calls totalling no more than one hour’s duration on any given day.
I will hear the parties as to the precise terms of the conditions.