Attorney-General (SA) v Kimmins
[2023] SASC 10
•27 January 2023
Supreme Court of South Australia
(Criminal: Application)
ATTORNEY-GENERAL (SA) v KIMMINS
[2023] SASC 10
Judgment of the Honourable Justice Kimber
27 January 2023
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
On 11 August 2021 this Court made an extended supervision order in respect of Mr Kimmins pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).
On 12 June 2022 Mr Kimmins breached a condition of that order and was taken back into custody on 13 June 2022. On 30 August 2022 the Parole Board satisfied itself that Mr Kimmins had breached the extended supervision order.
Pursuant to s 17(1)(b)(ii) of the Act the Parole Board directed that Mr Kimmins be detained in custody pending a determination by this Court as to whether a continuing detention order should be made under s 18(2) of the Act.
Held:
1. Mr Kimmins breached his extended supervision order.
2. Mr Kimmins poses an appreciable risk to the safety of the community if not detained in custody.
3. Mr Kimmins is to be detained in custody until the expiration of the extended supervision order imposed on 11 August 2021.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 17, 18; Criminal Law Consolidation Act 1935 (SA) s 62, referred to.
Police v Sullivan; Attorney-General (SA) v Sullivan(No 1) [2018] SASC 11; Attorney-General (SA) v Coaby [2019] SASC 137, applied.
ATTORNEY-GENERAL (SA) v KIMMINS
[2023] SASC 10Criminal: Application
KIMBER J:
This is an application for a continuing detention order pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). There is no dispute, and I am satisfied, that the respondent has breached an extended supervision order imposed on 11 August 2021.
These are my reasons for ordering that the respondent be detained in custody until the expiration of the extended supervision order.
Introduction
On 11 August 2021 this Court made an extended supervision order with respect to the respondent for a duration of three years. The order was made pursuant to s 7(4) of the Act. It is the second such order for the respondent.
Condition [2.18] of the extended supervision order is in the following terms:
Unless otherwise determined by the Parole Board, the respondent is not to access the internet, except for the purpose of banking, navigation, accessing electronic mail, employment, medical purposes, accessing Commonwealth or State Government services, accessing streaming services like ‘Netflix’ and ‘Stan’, for activities of daily living such as online shopping and payment of bills or any other purpose approved of in writing by his Community Corrections Officer.
The breach of condition [2.18]
There is no dispute that on 12 June 2022 police attended the home of the respondent and examined his mobile phone.[1] Located on the mobile phone were images of female children under the age of 14 years. On 13 June 2022, the Parole Board issued a warrant which was executed the same day. The respondent has been in custody since 13 June 2022. The respondent was interviewed by the Parole Board on 30 August 2022. There is no dispute that the respondent admitted both having images on his phone and having accessed the images from the internet. In these proceedings, the respondent does not dispute that when asked before the Parole Board why he was ‘doing this’, he said that ‘it was just a way for myself to get that sexual release’.
[1] There is material before me suggesting that a tablet may also have been examined and relevant material may have been found upon it, but the respondent has made no admission with respect to that device. Further, the Attorney‑General has not sought to establish in these proceedings that there was any relevant material on that device. For those reasons, I have ignored any allegation with respect to the tablet.
Given the above, for the purpose of these proceedings, I am satisfied the breach should be characterised in the following way. The respondent accessed the internet for the purpose of downloading and viewing images of females under the age of 14 years. The purpose of the respondent downloading and viewing the images was a sexual one.
The respondent has been charged with respect to the material in his possession on 12 June 2022. A trial is listed in the District Court in April 2023. In these proceedings, the Attorney‑General has not sought to establish the images were ‘child exploitation material’ as defined in s 62 of the Criminal Law Consolidation Act 1935 (SA) and the respondent makes no admission in that regard.
The position of both the respondent and the Attorney-General is that it is not for me to decide whether the images were ‘child exploitation material’.
The direction of the Parole Board and the position of the Attorney-General
Pursuant to s 17(1)(b)(ii) of the Act, on 30 August 2022 the Parole Board directed the respondent be detained in custody for determination of whether a continuing detention order should be made. Subject to s 18(2) of the Act, the direction of the Parole Board enlivens the jurisdiction of this Court to determine whether to make a continuing detention order.
Pursuant to s 18(5) of the Act, the Attorney-General is a party to these proceedings. The Attorney‑General seeks a continuing detention order on the basis that the respondent poses an appreciable risk to the safety of the community if not detained in custody until the expiration of his extended supervision order.
Materials received
On 21 December 2022, I heard submissions from counsel for the Attorney‑General and counsel for the respondent with respect to whether I should make a continuing detention order. With consent of the parties, I have received the following material:
1.Affidavit of Elizabeth Ferris sworn 6 April 2021 and exhibits;
2.Affidavit of Alyona Haines affirmed 16 September 2022 and exhibits;
3.Report of Dr Brereton dated 18 June 2021;
4.Letter of Lynda Dixon – Senior Social Worker dated 8 December 2022;
5.Letter of Sky Lambert – Acting Director, Offender Rehabilitation Services dated 15 December 2022.
Continuing detention orders
Section 18(2) of the Act provides:
(2) The Supreme Court may, if satisfied that the person—
(a)has breached a condition of the supervision order; and
(b)poses an appreciable risk to the safety of the community if not detained in custody,
order that the person be detained in custody (a continuing detention order) until the expiration of the supervision order, or for such lesser period as may be specified by the Court.
The power of the Court to make a continuing detention order is enlivened on satisfaction of the two jurisdictional facts contained in s 18(2)(a) and s 18(2)(b). Section 18(3) provides that the paramount consideration in determining whether to make a continuing detention order must be the safety of the community.
There is no dispute, and I am satisfied, that the respondent breached condition [2.18] of his extended supervision order in the way set out earlier in these reasons. The real issues are: whether the respondent poses an appreciable risk to the safety of the community if not detained in custody; if so, whether I should exercise my discretion to make a continuing detention order; and, if I exercise that discretion, the duration of that order.
In Police v Sullivan; Attorney-General (SA) v Sullivan (Sullivan No 1) Hinton J stated:[2]
The power to make a continuing detention order is not a power to punish a person for breaching a supervision order. It is a power to be exercised for protective not punitive purposes. The question is whether the drastic step of incarcerating the high risk offender for the duration of the extended supervision order or some lesser period is necessary to protect the community from an appreciable risk to its safety as posed by the high risk offender. That question is to be answered in the knowledge that the alternative is the continuation of the supervision order, possibly varied. Obviously the risk posed by the offender subject of the breached supervision order must be reassessed in the light of the nature and circumstances of the breach.
[2] Police v Sullivan; Attorney-General (SA) v Sullivan(Sullivan No 1) [2018] SASC 11, [85].
As Hughes J held in Attorney-General (SA) v Coaby (Coaby), [3] a continuing detention order is not the only response that can be made to a breach of a supervision order. Hughes J explained:[4]
A continuing detention order is not the only response that can be made to a breach of a supervision order. If the circumstances or nature of the breach does not indicate a failure of the supervision order to safeguard the community, or if the risk has been addressed since the breach, or if the risk can be addressed in another way such as further or different conditions on the supervision order, then a detention order should not be made. The remarks of Hinton J in Attorney-General (SA) v Sullivan (No 2) are apposite:
Although consideration of a continuing detention order is triggered by the breach of an extended supervision order, the measure of the period of detention is not the units of punishment. The respondent is detained to prevent what he or she might never do. This being so, the respondent should not be detained for any longer than is necessary to ensure adequate protection of the community. Accepting this it is self-evidently important to identify with some particularity the risk that a respondent poses before turning to consider whether detention is necessary to adequately protect the community from that risk. In some cases the risk may be immediate and the appropriate response may simply be incapacitation. In other cases it may be less immediate but no less profound and may require detention in order to facilitate different measures of intervention and prevention. Where a continuing detention order of a shorter duration than the period of the extended supervision order is contemplated, that period will be determined by the anticipated effect of detaining the respondent, including all interventions and treatments that may be undertaken whilst in detention, upon the risk posed by the respondent.
(Footnotes omitted)
[3] Attorney-General (SA) v Coaby [2019] SASC 137.
[4] Ibid [19].
The history of the respondent
The respondent is 41 years of age. He has an intellectual disability. Dr Brereton has reported that neurocognitive testing has indicated the respondent has a premorbid intellectual functioning in the borderline range, worsened by drug use, and that the respondent performs in the mild intellectually disabled range. The respondent does not have a mental illness such as a mood disorder or schizophrenia. He does have a history of substantial cannabis use. However, Dr Brereton has reported that collateral information does not indicate that substance abuse has been a problem when the respondent has been in the community under supervision.
The respondent has a history of offending against children. It is necessary to set out that history in some detail.
In February 2005, the respondent was convicted of common assault in relation to conduct which involved the touching of children. In 2009, he touched a young girl on the buttocks at a supermarket and was convicted of aggravated indecent assault. In 2010, and while on bail for the offence just mentioned, the respondent touched three children on the buttocks at the Adelaide Central Market. With respect to the conduct in 2010 at the Adelaide Central Market, the respondent was convicted of three counts of indecent behaviour. The aggravated indecent assault and the three counts of indecent behaviour breached two good behaviour bonds imposed for theft, deception and driving offences. The respondent was sentenced to imprisonment for 28 months with a non‑parole period of 10 months. The sentence commenced on 8 January 2010. The respondent was not released on parole and served the head sentence in prison.
In December 2014, the respondent was convicted of one count of producing child pornography and one count of possessing child pornography. Those offences occurred as the result of the respondent taking a photograph of a compact disc cover using his phone. The compact disc cover featured a drawing of a child in underwear. The offending was discovered after the respondent was arrested and charged with an offence of theft of children’s underwear. The respondent admitted to the police that he took the photographs to excite himself sexually and that he had masturbated using the photograph. The respondent was convicted and placed on a good behaviour bond for three years.
In February 2014, the respondent was made subject to a paedophile restraining order. The respondent breached that order on three occasions in 2014 and 2015 by accessing the internet and having in his possession a phone which could access the internet. He was sentenced in the District Court for those breaches to 16 months and two weeks imprisonment with a non-parole period of eight months. That sentence commenced on 6 February 2015.
The first application for an extended supervision order was made on 2 March 2016. An interim order was granted in May 2016. On 18 November 2016, an extended supervision order was imposed for a period of three years.
On 23 November 2016, the respondent was convicted of two counts of failing to comply with reporting obligations. Those offences breached the three-year good behaviour bond imposed in December 2014. The breaching offences concerned the failure of the respondent to notify ANCOR of the details of the internet service provider, password and username associated with the use of a computer. The computer was only used for the purpose of looking for employment and the breach was excused. The respondent was sentenced to imprisonment for three months and 15 days for the breaching offences. That sentence was suspended upon entry into a bond for a period of 18 months.
On 22 August 2019, the respondent committed the offence of aggravated possession of child exploitation material. The sentencing Judge described the offence in the following way. On 22 August 2019, a police officer examined the phone of the respondent and found approximately 20 images of girls ranging in age from approximately three to 10 years. Some of the girls were naked and others were partially clothed. All the girls were in sexually explicit poses. The respondent told the Department for Correctional Services (DCS) he knew his conduct was wrong but that he had been accessing those types of images for a couple of weeks. During his interview with the police, the respondent said he downloaded the images from nudism sites and had looked at them regularly. In a later interview, the respondent was asked if he was thinking about doing anything with the children at the time he went into the nudity sites and the respondent said ‘not fully, no’. In total police found 166 images of child exploitation material which all fell into category 1 of the Oliver Scale.[5] Of those images, 160 were of children under the age of 14. The 160 images were the material the subject of the charge of aggravated possession of child exploitation material. The respondent pleaded guilty and was sentenced on 14 May 2020. Following a reduction of 40 per cent for the plea of guilty, a sentence of one year, one month and 19 days with a non‑parole period of 15 months was imposed.
[5] Category 1 images are the least explicit type of images within the Oliver scale.
The report of Dr Brereton dated 18 June 2021
The risk of the respondent committing a sexual offence has been assessed more than once over the years. The most recent psychiatric report is the report of Dr Brereton dated 18 June 2021. In that report, Dr Brereton opined the respondent had the following risk factors relevant to sexual recidivism:
·Sexual interests and arousal patterns. Mr Kimmins has persistent deviant sexual interests. He has a disorder of sexual preference, i.e. paedophilia. He remains predominantly interested in prepubertal girls. He continues to masturbate to fantasies regarding children. These include fantasies involving harm to the children. He uses sex to cope with negative emotions and describes viewing CEM as calming.
·Thought processes associated with sexual behaviour. Mr Kimmins has a limited understanding of the harm to his victims. He has cognitive distortions that tend to minimise the effects of his offending and impede his judgement about appropriate behaviour towards children.
·Emotional regulation. Mr Kimmins lacks emotional intimacy with adults, his social contacts are limited, and he has an external locus of control.
·Problem solving and life management skills. Mr Kimmins has a history of non-sexual offending. His problem-solving abilities appear poor. His ability to understand his risk and make feasible plans to prevent reoffending are limited. Of particular concern is his poor response to supervision with a variety of breaches and reoffending over time.
Dr Brereton also opined the respondent had:
… a high risk of sexual recidivism. When under stress he remains a significant risk of seeking out CEM once again. Also, in my opinion, his risk of contact offending is high, i.e. the opportunistic touching of pre-pubescent girls.
In conclusion, I believe there is a high likelihood that the respondent would commit a further serious sexual offence within the meaning of the High Risk Offenders Act.
Involvement in programs
The respondent has undertaken work with sex offender treatment programs. I will not set out the entire history of participation by the respondent in relevant programs.
In the above mentioned report, Dr Brereton set out:
Over a number of years, Mr Kimmins has undertaken extensive work with sex offender treatment programmes. Unfortunately, the extent to which he appears to have benefitted from this is limited. Treatment facilitators continue to identify a number of risk factors including relationship instability, emotional identification with children, general social rejection and poor problem-solving skills. In addition, Mr Kimmins has continued to indulge his sexual urges regarding children in the form of fantasies, pornography use, and other opportunities such as certain TV shows, without demonstrating much motivation to resist or challenge himself regarding this behaviour. He has retained a number of cognitive distortions that allow him to justify potentially inappropriate behaviour towards children. He has made comments demonstrating a poor understanding of the harms involved in CEM offences, and comments demonstrating a lack of motivation to change. He has also indicated that imprisonment is not a strong disincentive for him to offend.
In 2021, the respondent completed a number of modules of the Sexual Behaviour Clinic me (SBC-me) program. The respondent commenced the program on 8 July 2021. He attended 25 group session, 20 individual sessions and five sessions provided by either telephone or telehealth due to the Covid‑19 virus. The respondent did not complete that program due to his arrest on 12 June 2022. The participation of the respondent in the SBC-me program is summarised in the letter dated 8 December 2022. Among the matters set out in that letter with respect to the participation of the respondent in one module is the following.
Mr Kimmins identified that ideally, he would want to be in a relationship with a teenage female. He said he could teach her something and that it was not a matter of power as he would let her do what she wants. Mr Kimmins mentioned that relationships with adult females require an effort, and it is easier to form relationships with children. Mr Kimmins admits to being more aroused by the child/adolescent body … Mr Kimmins attraction appears to be towards female children 5‑14 that he witnesses either while travelling on public transport or watching television commercials and on occasions he fantasies about previous sexual offences.
The author of the letter dated 8 December 2022 concludes, ‘it is recommended that Mr Kimmins completes the SBC-me group treatment program while in custody. There have been five attempts starting in 2014 for Mr Kimmins to complete the program in the community all to no avail’.
The letter dated 15 December 2022 sets out that the circumstances of the respondent have been reviewed by the Rehabilitation Programs Branch (RPB) within DCS. The letter sets out that the RPB is able to prioritise the inclusion of the respondent in the next SBC-me program due to commence in Mount Gambier Prison in March 2023. The letter also sets out that the program will be completed in approximately July 2024 (i.e. – before the end of the current supervision order). In the event that program was delayed, the letter confirms the RPB are able to arrange for extra work to be undertaken in order for respondent to complete the program by the expiry date of the extended supervision order.
The submissions of the respondent
The respondent opposes a continuing detention order. The respondent submits his risk to the community has not increased since the order was made. The respondent submits the best place for him to deal with his issues is in the community. He submits it is significant that the breach of the extended supervision order does not involve contact offending.
Consideration
I am satisfied the respondent has breached condition [2.18] of his extended supervision order in the way set out earlier in these reasons.
I am further satisfied the respondent poses an appreciable risk to the safety of the community if not detained in custody. While the conduct which breached the extended supervision order did not involve the respondent touching a child, the relevant risk is not limited to accessing and possessing child exploitation material. The respondent has demonstrated a sexual interest in children over more than a decade. The respondent has touched young children in a sexual way on more than one occasion. Given that conduct and as he downloaded images of young girls despite being subject to the extended supervision order, I am satisfied he poses a real risk of touching young children in a sexual way in the future. On the respondent’s own admission, he was accessing images of children for sexual gratification. I accept the opinions of Dr Brereton with respect to the risk of contact offending being high and that the respondent has not demonstrated much motivation to resist indulging his sexual urges regarding children in the form of fantasises and other opportunities. Given the circumstances of the breach of the extended supervision order, including the admitted sexual purpose, I am satisfied the risks which Dr Brereton identified in his report dated 21 June 2021 exist today and to the same degree.
I am satisfied that there is good reason to doubt that the respondent will complete the SBC-me program in the community. As set out above, there have been many attempts to complete that program, but the respondent is yet to complete it. Given the continued sexual interest of the respondent in children, the apparent lack of motivation of the respondent to resist his interest in young children and the particular circumstances of the breach of the extended supervision order, I am satisfied that it is likely the respondent will breach the extended supervision order again if permitted to remain in the community. I am satisfied that when that occurs, the opportunity to complete any program in the community will be frustrated. I accept that it cannot be assumed that completion of the SBC-me program will reduce the risk posed by the respondent. There is reason to be pessimistic about the respondent making meaningful change.
The purpose of a continuing detention order is not punishment. It is a power to be exercised for a protective purpose. I do not overlook that the effect of linking the length of any continuing detention order to the respondent’s completion of the SBC-me program will result in his detention until the end of the order. The letter dated 15 December 2022 sets out that the SBC-me program will not be completed while in custody until ‘approximately July 2024’. The current extended supervision order is for a period of three years and commenced on 11 August 2021.
Nonetheless, given the nature of the risk posed by the respondent, the paramount consideration of the safety of the community, the availability of the SBC-me program in custody, the failure to complete that program in the community in the past and the risk that it will not be completed in the community between now and the end of the current supervision order if the respondent remains in the community, I am satisfied it is appropriate to exercise my discretion to make a continuing detention order. For the same reasons, I am satisfied that it is appropriate to order the respondent be detained in custody until the expiration of his current supervision order.
Orders
I order the respondent be detained in custody until the expiration of the extended supervision order imposed on 11 August 2021.
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