Attorney-General (SA) v Kimmins - [2023] SASC 10

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 10
Criminal: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] SASC 10
Decision Date: 27 January 2023

CaseChat Overview and Summary

The case of Attorney-General (SA) v Kimmins involved the respondent opposing a continuing detention order. The respondent argued that his risk to the community had not increased since the order was made and that the best place for him to address his issues was in the community. The respondent also submitted that the breach of his extended supervision order did not involve contact offending. The court was required to determine whether the respondent posed an appreciable risk to the safety of the community if not detained in custody and whether there was good reason to doubt that the respondent would complete the SBC-me program in the community.

The court found that the respondent had breached condition [2.18] of his extended supervision order by accessing and possessing child exploitation material. The court also found that the respondent posed an appreciable risk to the safety of the community if not detained in custody. The court accepted the opinions of Dr Brereton that the risk of contact offending was high and that the respondent had not demonstrated much motivation to resist indulging his sexual urges regarding children in the form of fantasies and other opportunities. The court found that 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 meant that it was likely the respondent would breach the extended supervision order again if permitted to remain in the community.

The court found that it was satisfied that the risks identified by Dr Brereton existed today and to the same degree as before. The court also found that there was good reason to doubt that the respondent would complete the SBC-me program in the community. The court accepted that it could not be assumed that completion of the SBC-me program would reduce the risk posed by the respondent. The court concluded that the purpose of a continuing detention order was not punishment but a power to be exercised for a protective purpose.

The court ordered that the respondent be detained in custody until he completed the SBC-me program, which was expected to take approximately until July 2024. The current extended supervision order was for a period of three years and commenced on 11 August 2021.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.